SUPREME COURT OF INDIA
D. P. Wadhwa, Sujata .V. Manohar
P. V. SUBBA NAIDU AND OTHERS, APPELLANTS
Versus
GOVERNMENT OF A.P. AND OTHERS, RESPONDENTS.
Civil Appeals Nos. 4617-18 of 1990 with Nos. 4878-79 and 3933-34 of 1990,
decided on November 11, 1997.
Constitution of India, 1950 - Claim terms of contract - Hindustan Construction - In case of any dispute difference between parties to contract either during progress after completion work after determination abandonment or breach contracts to interpretation of contractor as to any matter or thing arising there either party shall forthwith give to other notice of such dispute or difference and such dispute or difference shall bean is hereby referred to arbitration award of such arbitrator shall be final and binding on parties unless contested by either party in court of law – Held, It is not open to court to probe mental processes of arbitrator or speculate on what impelled an arbitrator to arrive at his conclusion - An award can be set aside on ground that arbitrator in making it had exceeded his jurisdiction - But by purporting to construe contract court could not take upon itself burden of saying that this was contrary to contract and as such beyond jurisdiction - Same view has been reiterated in Hindustan Construction - Counsel for State of Andhra Pradesh placed strong reliance on judgment of this Court in case - Superintending Engineer - In that case arbitrator was required to decide claims referred to him having regard to contract - His jurisdiction was expressly limited to decide claims terms of contract - Court therefore examine various terms contract to see whether appellant was barred from considering any part claim on account of any express prohibition in terms of contract to that effect - In present case court have not been shown any clause of contract which prevents arbitrator from examining claims which were put up before arbitrator – Appeal allowed
ORDER
1. All these appeals pertain to the scope of the arbitration clause under the two contracts entered into by the State of Andhra Pradesh, one with the appellant in CAs Nos. 4617-18 of 1990 and the other with the appellant in CAs Nos. 3933-34 of 1990. Both these contracts contain an arbitration clause (clause 73) which is identical. The material part of clause 73 is as follows :
"In case of any dispute or difference between the parties to the contract, either during the progress or after the completion of the works, or after determination, abandonment, or breach of the contract, as to the interpretation of the contract, or as to any matter or thing arising thereunder ... then either party shall forthwith give to the other notice of such dispute or difference and such dispute or difference shall be, and is hereby referred to the arbitration of ... and the award of such arbitrator shall be final and binding on the parties unless contested by either party in a court of law .... Either party may, within a period which shall be fixed by the arbitrator, file before the arbitrator a statement of the case and also all the documents relating to, or having a bearing on the case .... The arbitrator shall have power to view the subject-matter of dispute with, or without the parties or their agents. The arbitrator shall have also power to open up, review, and revise any certificate, opinion, decision, reqisition or notice, save in regard to matters expressly excepted and to determine all matters in dispute which shall be submitted to him and of which notice shall have been given as aforesaid ...."
2. The High Court has set aside the non-speaking awards which were given in the two arbitration proceedings on the ground that the subject matter of the claims before the arbitrators was beyond the jurisdiction of the arbitrators. In the case of one contract, all the claims have been held to be beyond the jurisdiction of the arbitrator while in the other contract, one claim is allowed and the other claims are held to be beyond the jurisdiction of the arbitrator. There is a cross appeal filed by the State in respect of one claim which was so allowed.
3. In the judgments which are under appeal in these appeals, the approach of the High Court has been similar. The High Court has examined the terms of the contract and has come to the conclusion that on the interpretation of the contract, the claims which were raised before the arbitrators would not arise under the contract itself and hence they were beyond the jurisdiction of the arbitrator.
4. The entire thrust of the judgment is on examining the terms of the contract and interpreting them. The terms of the arbitration clause, however, are very wide. The arbitration clause is not confined merely to any question of interpretation of the contract. It also covers any matter or thing arising thereunder. Therefore, all disputes which arise as a result of the contract would be covered by the arbitration clause. The last two lines of the arbitration clause also make it clear that the arbitrator has power to open up, review and revise any certificate, opinion, decision, requisition or notice except in regard to those matters which are expressly excepted under the contract, and that the arbitrator has jurisdiction to determine all matters in dispute which shall be submitted to the arbitrator and of which notice shall have been given.
5. In the present case all the claims in question were expressly referred to arbitrator and were raised before the arbitrator. The High Court was, therefore, not right in examining the terms of the contract or interpreting them for the purpose of deciding whether these claims were covered by the terms of the contract.
6. In the case of K. R. Raveendranathan v. State of Kerala ((1998) 9 SCC at p. 410, infra : (1997) 6 Scale 302) this Court, relying upon the decision in Hindustan Construction Co. Ltd. v. State of J&K ((1992) 4 SCC 217) has held that the court by purporting to
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