An award by an arbitrator, other than an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit, requires stamp duty. However, the absence of stamp duty does not render the award invalid. It is a defect that can be rectified by impounding the award under Section 33 of the Stamp Act.

Nagendra Prasad Singh, J.

1. This is an appeal under Sec.39 (vi) of the Arbitration Act, 1940 (hereinafter referred to as the Act) against an order passed by the Additional Subordinate Judge, Third Court, Purnea, refusing to set aside an award.

2. The short facts of the case are these : The appellant company entered into a contract with the respondent State some time in March, 1966 for construction of approach overbridges on Purnea-Katihar railway line and Purnea-Katihar road as per rates approved by the Additional Chief Engineer, Lateral Road Project (East), Patna. The rates were approved up to maximum lead of 600 ft, and maximum lift of 14,00 ft. Upto June, 1966, the appellant excavated all the earth available within a lead of 600 ft. and then, under their letter, dated the 11th June, 1966, they informed the Executive Engineer that henceforward they had to excavate earth beyond a lead of 600 ft.

In that letter they quoted a rate of Rs. 180.00 (per thousand) oft. beyond a lead of 600 and within one mile. In October, 1966, the S.D.O., L.R.P. Works Division, Purnea, directed the appellant to carry on the earth work beyond 600 lead. The work done beyond 600 was duly recorded in Measurement Book No. 93. Later, under a letter, dated the 1st December, 1966, the Executive Engineer informed the S.D.O. Works Division that the schedule rate of Purnea P.W.D. Circle for carriage of materials within one mile lead beyond the initial lead of 600 was Rs. 90.00 %0 cft. and the schedule rate for earth cutting was Rs. 20.50 paise %0 cft. and directed that a supplementary agreementbe got executed by the appellant.

A supplementary agreement was, accordingly, drawn up and signed by the appellant and the S.D.O. and it was referred to the Additional Chief Engineer, L.R.P. (East). Patna for approval, under a letter of the Superintending Engineer, dated the 15th April, 1967. The Additional Chief Engineer, under his letter, dated the 22nd April, 1967, authorised the Superintending Engineer to approve the rates as recommended by him and the Executive Engineer. As per agreement noted in Measurement Book No. 93, the appellant had done cutting of earth, to the tune of 18,16,683 cft. for which they claimed a sum of Rs. 2,00,743.14 paise. Out of the said amount. Rupees 1,22,738.21 Paise was paid to them and they claimed the balance amount of Rs. 78,004.93. They also claimed certain amounts under different heads with interest, the total being Rs. 1,68,297. 14 Paise. There was correspondence between the Superintending Engineer, Executive Engineer and the appellant and finally the Superintending Engineer approved the rate of Rs. 85/- %0 cft. by his letter dated the 15th November, 1967. The appellant not being willing to accept the said rate, there was a difference between the parties, and ultimately by a letter dated the 27th February, 1960, the appellant prayed for an arbitration and the Superintending Engineer, L.R.P. Works Circle, Purnea was appointed as the sole arbitrator in accordance with the arbitration clause in the agreement.

3. By the impugned award, dated1 the 31st August, 1968. the arbitrator held that the appellant had carted earth beyond 600 lead from different heights totalling 14.43.989 cft. and was entitled to rates between Rs. 65/- to Rs. 101/- per thousand cft. The break-up of the tstal earth work done and the rates at which the appellant was held to be entitled were as follows:-

-

Height. Earth work done.

(i)0 to 5 height ...... 37,101 cft.

(ii)5 to 8 height ...... 5,00,737 cft.

(iii)8 to 11 height ...... 3,39,175 cft.

(iv)11 to 14 height ...... 4,10,208 cft.

(v)on removal of grass

and shrubs as also in

preparation of ramps ...... 90,298 cft.

4. On the 7th September, 1968, the award was filed in Court by the said arbitrator. On the 30th October, 1968, the appellant filed an objection to the said award