IMPORTANT POINT
Word "Award" within the meaning of sub-section (3) of Section 16 of Arbitration Act would also include a part of the Award which has become subject matter of order of remission by Competent Court.

ORDER

The interpretation of sub-section 3 of Section 16 of the Arbitration Act, 1940 (hereinafter called, for the sake of brevity, the Act ) arises for consideration in this appeal, which arises out of the judgment and order dated 31st July, 1997 passed by the High Court of Bombay, Appellate Side, Panaji Bench, Goa in Appeal No. 7 of 1997.

2. The appellant and the respondent herein entered into an agreement whereby and whereunder the appellant undertook to carry out certain constructions. The agreement also provided for resolution of dispute by an Arbitrator. It appears certain dispute arose as a result of which the appellant herein preferred a claim on 19th September, 1990 and subsequently on 26th October, 1990, first reference was made. On 12th March, 1991, the respondent herein terminated the agreement. As a result of termination of agreement, the appellant herein made another reference on 26th June, 1991 and put in second claim on 27th September, 1991. The Arbitrator appointed, with the consent of the parties, gave an Award on 25th February, 1994. Thereafter the Arbitrator filed an Award for being made a Rule of the Court. The appellant filed an objection before the learned Civil Judge, Senior Division, Mapusa, in the State of Goa. The learned Civil Judge in terms of the order dated 6th July, 1995 elaborately considered the contentions raised by the appellant herein and came to the following conclusion:

"20. There appears some glaring mistake under item No. 1 and 2 when the arbitrator mentioned that the earth excavation is nil though the quantity appear to have been admitted by the respondent. But on this ground the award cannot be set aside.

21. Similarly, the claim No. 2 though the arbitrator has stated "could not be ascertained" there is no explanation as to whey he could not do so and if it would not be ascertained what would be the finding to that effect."

3. The learned Civil Judge, Senior Division, observed thus :

"Considering the no objection of the learned Advocate for the respondent, I feel that the award has to be remitted on two points as under:

(i) To decide the additional terms and reference by order dated 26.6.91 regarding the illegal closure of the contract and

(ii) The undermined part of item No. 1 and 2 as mentioned in page 7 of the award, to specify the term "could not be ascertained"."

4. The Arbitrator in concluding part of the order held that the other part of the Award stands not affected by the said order.

5. On 10th October 1995, the Arbitrator resigned. Under such circumstances, the appellant herein instead of moving an application under Section 8(b) of the Act, filed a petition under Section 20 thereof for appointment of a new Arbitrator on 6th February, 1996. On 28th May, 1997 the learned Civil Judge, after hearing the parties, was of the view that since the earlier Arbitrator did not give his Award within time, the whole Award has become void. Consequently, he appointed a new Arbitrator with the consent of the parties with a direction to the Arbitrator to give a de-novo Award. Aggrieved, the State of Goa preferred an appeal before the High Court. The High Court was of the view that since the other part of the Award remained intact, the proceeding was required to be restricted to the aforementioned two points only on which earlier the Court wanted determination and, therefore, it was not open to the learned Civil Judge to have directed to resolve the dispute de-novo. It is against the said judgment the appellant is in appeal before us.

6. Mr. Prashant Bhushan, learned counsel appearing for the appellant raised two submissions. The first submission is that since the two points on which the learned Civil Judge required determination were incapable of being decided, therefore, the Arbitrator was required to resolve the dispute de-novo. The second submission is that once the Arbitrator has resigned and could not give the Award within the stipulated period, the Award was