A party cannot challenge an irregularity in arbitration proceedings if it has waived the irregularity by participating in the proceedings with full knowledge of the irregularity and without protest.

1. This appeal is brought on behalf of a firm called Pioneer Engineering Works against the order of the Additional Subordinate Judge Rancbi, dated 22-2-1955, rejecting an application for settling aside an award and granting a decree in terms of the award with regard to the claim made by the appellant.

2. It appears that the appellant entered into two contracts namely, contract No. P/256 of 1943/44 and contract No. PAN/26 of 1944/45, with the Governor General in Council through the Chief Engineer, Eastern Command, Ranchi, in order to make certain constructions for the mili- tary department. The work completed in the year 1945 and the final bills were also paid to the appellant near about the same time. The appellant, however raised certain objections regarding payment alleging that it had been underpaid with regard to certain items. The military department disputed the claim of the appellant and stated in their turn that the appellant had been overpaid with regard to certain items.

The dispute was ultimately referred to sole arbitration of Brigadier Bikram Singh, who was Brigadier in charge of Administration, Eastern Command. He accepted the reference, and on 25-11- 1953, he wrote to the parties asking them to submit their statements. In pursuance of that tetter the appellant submitted its claim on 26-12-1953, and the Government filed their Statement on 18-2- 1954. In the reply of the Government dated 18-2-1954, they also made a counter-claim with regard to over payment to the contractor. The arbitrator gave a hearing to the parties on 14-4-1954, and published the award on 24-4-1954. The relevant portion of the award of the arbitrator is as follows : "I award and direct that : Firstly, The Claimants claims after adjusting the Respondents Counter-claims are rejected. Secondly, Each party shall bear its own cost of reference. Thirdly, Stamp duty shall be paid by the Respondent."

3. The appellant made an application before the Additional Subordinate Judge for setting aside the award.

4. The Additional Subordinate Judge rejected the application of the appellant and ordered that judgment should be pronounced in terms of the award under the provisions of Sec.17 of the Arbitration Act.

5. The main submissions made on behalf of the appellant in this Court are (1) that the arbitrator has gone beyond the subject-matter of the reference, and so the award is illegal and should be set aside, (2) that the award has not been given within the period of four months as provided in Schedule 1, Article 3 of the Arbitration Act, and (3) that the arbitrator has misconducted himself in entertaining the counter-claim on behalf of the respondent.

6. During the course of the argument the learned Government Advocate said that he would not press the first two points. He concentrated his argument only on the third point namely, that the arbitrator should not have entertained the counter-claim made on behalf of the respondent with regard to over payment for the work done by the appellant. In support of his submission learned Counsel referred to the letter of the arbitrator (exbbit 2) date 25-11-1953, in course of which he stated as follows :

"Respondents pleading.

7. If you are the respondent then, when you have received a copy of the claimants statement and particulars of claim, please prepare your pleading in writing and state therein your defence in reply to the claim and forward the same to me.

8. You must send a copy of your pleading to the claimant to reach him not later than 22-2-1954."

It appears that the appellant filed its claim before the arbitrator on 26-12-1953, and the Union of India filed a reply to the claim of the appellant and also put forward a counter-claim on 18-2-1954. The arbitrator fixed 8-3-1954, for hearing the parties but subsequently postponed the date of hearing and on 22-3-1954, the time of publication of the award was extended by four months. The arbitrator actually heard the parties on 14-4-1954, and gave his award on