JUDGMENT

Shah, J.-

C.A.No. 8115 of 2001 @ S.L.P. (C) No. 7192 of 2001

Leave granted.

2. Learned Senior Counsel Mr. Ashwani Kumar appearing for the appellant contended that the judgment and decree passed by the High Court confirming the award made by the arbitrator is on the face of it illegal because:

(a) arbitrator has failed to consider counter-claim

(b) second reference to arbitrator was not maintainable under Order 2 Rule 2 CPC, and

(c) the arbitrator has awarded interest despite the contrary condition in the agreement.

3. As against this, Mr. G.L.Sanghi learned senior counsel for the respondent as well as the respondent who is appearing in person submitted that in the written statement counter-claim or set off was neither pleaded nor proved by the appellant before the arbitrator. He also contended that in case of claims raised by the respondent after preparation of final bill, there is no question of application of Order 2 Rule 2 CPC as rightly held by the arbitrator and the Courts below. For the contention based on clause 23 of the Agreement, it is submitted that the appellant never contended before the arbitrator that clause 2