THE COLLECTOR OF RAMANATHAPURAM AT MADURA, REPRESENTING THE DIVISIONAL ENGINEER, HIGHWAYS SUCCESSOR TO THE DISTRICT BOARD, RAMANATHAPURAM AND ANOTHER Vs. K.R. RAMAKRISHNA RAJA

JUDGEMENT

(1.) This is an appeal by the State to which a memorandum of cross objections has been filed by the plaintiff in O. S. No. 63 of 1961 on the file of the Subordinate Judge of Ramanathapuram at Madurai. The plaintiff was an Engineering Contractor. In connection with the construction of a submergible bridge over the Vaipar river at mile 8/1 Sivakasi - -Kalugumalai Road, the plaintiff's tender was accepted, and in consequence an agreement Ex. B -4 was drawn up between the plaintiff on the one hand, and the Divisional Enginerr (H), Special Bridges Division, Sattur, on the other. It is common ground that under this agreement, any dispute which may arise between the parties should be referred to arbitration as provided for under the agreement. After the agreement was so entered into in July, 1956, the contractor was put on the job, but it appears that the plaintiff committed default and inordinate delay in the matter of the completion of the contract which resulted in the termination of the contract on 23rd April 1958. Aggrieved by this and as, according to the plaintiff, disputes arose not only by reason of the termination of the contract but also otherwise, he invoked the arbitration clause under Ex. B -4 and sought for reference of all such disputes to the named Arbitrator, viz., the Superintending Engineer, Highways, Madras Circle. The Superintending Engineer accepted to be an Arbitrator, and he was so appointed by the Chief Engineer, as per the provisions of the agreement on 15th December 1959. It is common ground that the Arbitrator entered upon the reference in January, 1960. The Department filed their statement before the Arbitrator on 16th February 1960. The plaintiff who sought for the arbitration, however, would not file his reply statement till 19th August 1960. By this time, the period of four months which is statutorily fixed for the Arbitrator to render his award after he entered upon the reference expired. The Arbitrator, without reference to the provisions of law, but taking advantage of clause 73 in the Madras Detailed Standard Specifications which formed part and parcel of the agreement, Ex. B -4, extended the time twice suo motu under Exs. B -76 and B -83. On each of these occasions, it is common ground, that he did not consult the parties nor did he obtain their consent for such extension of time for passing the award but he took umbrage under the expression 'suo motu' appearing in Clause 73 of the Madras Detailed Standard Specifications, and under Ex. B -76 dated 13th December 1960, extended the time for passing of the award by three months and for another such like period under Ex. B -83 dated 7th May 1961. Ultimately, he passed an award on 31st May 1961. The plaintiff, in the course of the proceedings asked under Ex. A -81 dated 20th October 1960 to send the award, if any passed by him, but as we find from the records, the Arbitrator was not ready with the award on that date, but on the other hand, acted on his own and extended the time for passing of the award twice under Exs. B -76 and B -83. After the plaintiff was made aware of the passing of the award on 31st May, 1961, he filed the present suit on 23rd October 1961 under S. 14 of the Indian Arbitration Act praying for an order directing the Arbitrator to file the award into court for the purpose of enabling him to state his objections to the said award and in particular to its binding nature and validity. The State of Madras through the Collector of Ramanathapuram was made the defendant and the Superintending Engineer, Highways, Madras Circle, was impleaded as Arbitrator. The defendant pleaded on merits with which, as we shall presently indicate, we are not concerned, but on the legal contention of the plaintiff that the Arbitrator did not have the requisite jurisdiction under the Act to act under Clause 73 of the Madras Detailed Standard Specifications and suo motu extend the time for passing the award without the concurrence of the parties to the reference or without the sanction of the Court, the defendant would say that the Arbitrator was within his rights under the contract between the parties to so extend the time for passing the award and that the award was validly passed on 31st May 1961 and the plaintiff cannot therefore have a grievance. They raised various objections on merits and ultimately sought for a dismissal of the suit. The plaintiff, in order to make the record complete, filed his objections to the award of the Arbitrator alleging misconduct and sought for the setting aside of the award under S. 30 of the Arbitration Act. On the above pleadings, the following issues were framed:

(2.) The learned Judge, on the legal question held that the award was unenforceable in the eye of law and on merits also he agreed with the plaintiff that excepting for one item, the award of the Arbitrator has to be set aside. In that view he decreed the suit. It is as against this, the State has come up in appeal. The learned Assistant Government Pleader took us through the relevant records. The clause which comes up for interpretation by us as contained in the Madras Detailed Standards Specifications and which formed part of Ex. B -4 agreement runs as follows:

(3.) We have already referred to the relevant facts. Even assuming that by the plaintiff's participating in the enquiry and filing his statement on 19th August 1960, the time for passing the award within four months from the date of reference has not expired, since the Arbitrator could not have made the award without the relevant pleading or material before him, yet the award should have been passed at least on or before 19th December, 1960. That has not been done. On the 20th October, 1960, the plaintiff under Ex. A81 enquired of the Arbitrator as to when the award was expected as it was nearly a year since he applied for the award. What the Arbitrator did was, on 13th December, 1960 by invoking the suo motu powers referred to in Cl.73, he extended the time for passing the award by three months under Ex. B76. It is common ground that he did not consult the parties nor did he refer to them and obtain their consent for extending the time for passing of the award. A similar order was passed by him under Ex. B83, d. 7th May 1961 whereunder he further extended time for making the award till 30th June, 1961. Whilst the Government Pleader would strongly rely upon the expression "suo motu" in Cl.73 which according to him would enable him to act on his own volition and extend time for the passing of the award, learned counsel for the respondent would say that no agreement could be opposed to the letter and spirit of law. It is fundamental that there cannot be an estoppel against statutory provisions and any agreement which is the off -shoot of consensus between the parties having an impact on law and its provisions and which is contrary to the dictates and prescriptions of law is unenforceable and void. This is an elementary proposition.