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1991 Supreme(Bom) 59
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
H.W. Dhabe Dr. E.S. De’Silva, JJ.
Board of Trustees of Port of Mormugaor... Appellant.
Versus
Asia Foundations and constructions Ltd., and others... Respondents.
First Appeal No. 27 of 1988, decided on 30-1-1991.
Advocates appeared:
V.B. Nadkarni, Senior Advocate With M.D. Siodia and G.V. Tamba, for appellant.
V. V. Tulazapurkar with R.G. Ramani, for respondent No. 1.
Headnote:Section 30-Award-Challenged-Awarding of additional rates different from contractual rate-Error apparent on face of award-As per clause of contract, suitable rates different from contractual rates for contract where could be fixed having regard to all circumstances-Existing rates for such work provided under contract unreasonable or Impracticable by reason of addition to work.
"Held-Umpire could fix additional rates having regard to circumstances brought before him. No error of law apparent on face of award committed by arbitrator.
Section 30-Award-Challenged-Ground contract or some terms thereof part of award.
Held-In absence of evidence to show that contract or any term thereof in relation to claim can be held to be impliedly incorporated in same, it could not be said contract or any term thereof was part of award in relation to award.
Section 30- Award-Challenged-Error apparent-Face of record. Held-View taken by Arbitrator was possible view. It could not be said that he had committed any error apparent on face of record.
Section 30--Award by arbitrator-Non-application of mind by umpire-Umpire need not give reasons for his award-Recitals In award showing what be considered in award and be applied his mind to relevant material on record Ia Arbitration proceedings.
Even in cases of non reasoned award if he commits any mistakes either in law or in fact in determining matter referred to him, same cannot be assailed. In view of limitation upon power of Court in interfering with Arbitrators award under Sections 16 and 30, Court has to test award with circumstances.
Section 30-Award by arbitrator-Scope for Interference by High Court.
There is very little scope for interference by the Court in a non-speaking Award i. e., an Award in which no reasons are given by the Arbitrator or the Umpire for his conclusions. Even otherwise, the scope of interference by the Court in a reasoned Award is itself very much restricted, It may be seen that it is only when any of the grounds under Section 16 or 30 of the Act are made out that the Court can interfere with the award of an Arbitrator or an Umpire. It has to be borne in mind that an Arbitrator is a Tribunal of parties own choice and his adjudication therefore both on law and fact is final.
Section 30-Award-Whether High Court can interfere in its limited jurisdiction under Section 30.
Held-Jurisdiction of High Court under Section 30 not on appellate jurisdiction. It is only grounds covered under Section 30 that award can be set aside.
Section 30-Disputes between parties-Referred to Arbitrator-Umpire answered dispute-His decision thereon-Final unless-Cannot be repaginated before Court.
Unless shown that contract or any item thereof incorporated in award.
No error on face of record can be demonstrated by testing award in light of contract or any terms thereof. Mere reference to a contract in award is not to be held as incorporating it.
Section 30-Non-speaking award-Contractor claiming additional rate-Disputed by B-Objection-Claim granting claim partially.
It can not be said from award whether Umpire had decided objection. While considering claim for additional rate. It would only mean that Umpire negatived objections raised on behalf of appellant to award of additional rate. Not open to High Court to probe mental process by which Arbitrator reached the conclusion when it was not disclosed in award. Further allowing of claim partially would show that he had applied his mind in material on record and submission of parties. Held, it cannot be said that contract or at any rate ils terms in relation to claim was part of award and Umpire misdirected itself in not considering objection.
Section 30-Non-speaking award-Legality of.
Held-No Clause that award by Arbitrator should be reasoned award.
Non-speaking award to be upheld.
Section 30-Recitals in award challenged-Contract between parties incorporated in award-Held-It cannot be said that actual findings rendered by Arbitrator claim wise in his award also refer to contract or any item in contract merely because there is general reference in award to material on record-Contention to be negatived.
The recitals in the award are general recitals to show that the Umpire has applied his minds to all the material on record that it could not be said that his award suffers from non-application of mind which is one of the grounds on which his award can be sed aside. It cannot be said that the actual findings rendered by the Arbitrator claim wise in his award aim refer to the contract or any term in the contract merely because there is a general reference of the award to the material on record. Such a contention has to be negatived.
Section 90, 91 and 92, proviso 6-Arbitration proceedings-Whether Evidence Act applicable.
The Evidence Act as such is not applicable to the arbitration proceedings. It is only the fundamental principles of evidence such as the principles of natural justice, etc. which are applicable to the arbitration proceedings and not the technicalities of the rules of evidence. Section 91 provides for the rule of the best evidence i.e., proof of the contract by the document itself if the contract is reduced to writing. Section 92 of the Act then provides for exclusion of oral evidence to contradict, vary, and to or subtract from the terms of the document adduced in evidence as per Section 91 of the Evidence Act. However, there are exceptions carved out to the said rule and perusal of proviso 6 to Section 92 would show that the oral evidence is admissible even in the case of a written contract to show the manner in which a document is related to the existing facts.
2. There were disputes between the parties about the payment in regard to the work executed by the respondent No. 1. In particular, the respondent No. 1 Contractor had claimed additional rates for construction of a temporary working platform for which, according to him, out of the total quantity of 294 linear metres only 33 linear metres work was executed by using Vasco beach sand and for the balance which was the major work, large quantity of murram which was required to be brought from outside was used. The respondent No. 1-Contractor had claimed the full amount of Rs. 7 lakhs as per the contract for the additional approach to the working platform and the dispute was raised in that regard by the appellant that since he did not complete the additional approach as proposed in the plan, he was not entitled to the said contract amount. According to the respondent No. 1, he had moved the Engineer of the Appellant Board in accordance with the provisions of Clause 11.2.2.1 for the additional rate for the working platform, but he did not fix any additional rates for the same. Parties therefore referred the disputes between them to arbitration as provided in the contract between them. According to the clause of arbitration in the contract between them, each of them had to appoint one Arbitrator. Accordingly the appellant and the respondent No. 1 each appointed an Arbitrator of their choice. However, there was disagreement between the two Arbitrators appointed by them on certain matters referred to them. The whole dispute on all matters was therefore, referred to the Umpire by the Arbitrators who had to deal with the same de novo as per the agreement between the parties. It may be seen that the respondent No. 2 Mr. A. Jayagopal, who was Chief Engineer (retired) in the Military Engineer Services was appointed as Umpire by the two Arbitrators. Parties submitted their respective cases before the Umpire. They also filed documents before him. The Umpire, i.e., the respondent No. 2 thereafter passed this Award on 25th August, 1986.
3. The Award passed by the respondent No. 2 was a non-speaking Award. The appellant challenged the said Award before the Civil Court by filing an application under section 30 of the Arbitration Act which was registered as Special Civil Suit No. 88 of 1986. The respondent No. 1 opposed the said application. After hearing the parties, the learned Civil Judge, S.D., Vasco-da-Gama by his order dated 18-11-1987 dismissed the said application under section 30 of the Arbitration Act. It appears that there was an application filed by the respondent No. 2 to make the Award the rule of the Court (Exh. 12) and the Court passed a separate order for making the Award the rule of the Court.
4. Feeling aggrieved by the order of the learned Civil Judge dismissing the application of the appellant under section 30 of the Arbitration Act, the appellant has preferred the instant appeal against the same in this court.
5. The learned Counsel for the appellant has restricted his submission only to two items of the Award. They are : (i) design and construction of temporary working platform which is claim 1 in the arbitration proceedings; and (ii) construction of additio
