The court's power under Section 34 of the Arbitration and Conciliation Act, 1996 is not appellate in nature, and the court cannot set aside an award by substituting its own view in place of the arbitrator's.

KALYAN JYOTI SENGUPTA, J.

( 1 ) THIS appeal is against the judgment and order dated 12th April, 2005 passed by the learned Trial Judge whereby and whereunder an award passed by the learned Sole Arbitrator dated 5th March, 2003 is set aside. On the application of the respondent, State of West Bengal under section 34 of Arbitration and Conciliation Act, 1996 (referred to as the said act ). The short fact of present appeal is set out hereunder: appellant hereunder contended that there has been a concluded contract for execution of certain civil works between the appellant and the respondent. The said agreement was concluded upon acceptance of tender submitted by the appellant, by the Superintending Engineer, Mayurakshi canal Circle by his Memorandum No. 4084 dated 28th May, 1979. The detailed works was also stated in the work order. The appellant started works and indeed completed certain ground works but the respondent illegally terminated the work order and thereby the appellant was prevented from performing the balance work. Inspite of repeated demands and requests the respondent failed and neglected to make payment of the bills for the works done by the appellant. As such, there arose dispute between the parties and in terms of the arbitration agreement the appellant time and again called upon the respondent to appoint Arbitrator for adjudication of the dispute. Notwithstanding repeated demands and requests such appointment was not made by the State in terms of the arbitration agreement, as such, the appellant approached this Court under the provision of section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act ). The said application was not contested and the Hon'ble mr. Justice Sujit Kumar Sinha (as His Lordship then was) held there existed arbitrable dispute, and allowed the application. Thereafter the then Hon'bie acting Chief Justice S. B. Sinha was pleased to appoint Hon'ble Mr. Justice a. M. Sinha, retired Judge of this Court, as a sole Arbitrator. The learned arbitrator upon notice to the parties held sittings on a number of days and finally made and published the award on 5th March, 2003. It appears that before the learned Arbitrator both the parties raised following points : (1) Is the claim referred to arbitration maintainable in the absence of execution of formal contract as alleged ? (2) Did the claimant execute any work after acceptance of the tender of me claimant by the respondent ? (3) Is the termination of the contract by or on behalf of the respondent on 26th November, 1979 valid ? (4) Is the claim barred by limitation ? (5) Is the claimant entitled to any award on the claim as made out in the statement of facts ? And (6) To what relief, if any, the claimant is entitled ?

( 2 ) BEFORE the learned Arbitrator the appellant/claimant made various claims. The learned Arbitrator finally allowed the claim by his award of an aggregate sum of Rs. 1,32,308/- and allowed interest at the rate of 8% per annum and also allowed the lump-sum cost of Rs. 20,000/ -. In the ordering portion, however, the learned Arbitrator has awarded interest at the rate of 10% instead of 8%.

( 3 ) THE respondent was successful in persuading the learned Trial judge that there has been no concluded contract between the parties to bind themselves, nor there was any arbitration agreement. Hence, entire reference is invalid and illegal and Arbitrator has no jurisdiction.

( 4 ) MR. Hiranmoy Dutta, learned Counsel for the appellant, assailing impugned judgement and order, contends that learned Trial Judge, while setting aside the award exceeded his jurisdiction under Section 34 of the said Act. Two basic differences under the law between the principal agreement and arbitration agreement have been ignored by the learned trial Judge as it is settled principle of law that arbitration agreement subsists for the purpose of resolution of dispute between the parties as to performance and/or non-performance and/o

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