(1.) THE instant appeal has been preferred from the judgment and order dated 21st March, 2005 passed by a learned Single Judge of this Honble Court on the application filed by the appellant herein under sections 30 and 33 of the Arbitration Act, 1940. By the said application, appellant herein challenged the legality and validity of the award, dated August 30, 1990 passed by the learned Sole Arbitrator.

(2.) IT has been argued on behalf of the appellant that the learned Single judge has modified the award made by the learned Sole Arbitrator and virtually passed a new award in respect of the disputes between the parties. The learned Senior Counsel representing the appellant referred to the concluding portions of the judgment under appeal and submitted that the learned Single Judge had observed that the learned Arbitrator might have for a noble cause directed payment of costs to the Army central Welfare Fund, but the awarding of costs to a non-party is not permissible. The observations of the learned Single Judge are set out hereunder: "on the issue of cost, I feel that in an adversary proceeding cost awarded to non-party is not permissible. The Arbitrator for a noble cause directed cost to be paid to the Army Central Welfare Fund. However, I am of the view that this was not permitted in law and this is an error ex facie apparent on the face of the award. "

(3.) THE learned Single Judge modified the award of the learned Arbitrator to the extent that the claimant would be entitled to Rs. 2,25,437/-to be paid by the Railways. The learned Single Judge also deleted the cost awarded by the learned Arbitrator.

(4.) MR. P. K. Das, learned Senior Counsel representing the appellant submits that the learned Single Judge has power to set aside an award but under no circumstances could modify the same. Mr. Das referred to the provisions of sections 15 and 16 of the Arbitration Act, 1940. It has been specifically submitted on behalf of the appellant that the learned Single judge has no jurisdiction to make an award in favour of the appellant in view of the provisions contained in section 15 of the Arbitration Act, 1940. Mr. Das further submits that the learned Single Judge should have remitted the matter to the Arbitrator for a fresh decision.

(5.) THE learned Senior Counsel of the appellant also relied on a decision of the Division Bench of this Honble Court in the case of Union of India vs. Badridas Kedia, reported in AIR 1981 Calcutta 341 in support of his aforesaid contentions. Paragraph 14 of the aforesaid judgment is set out hereunder: "14 In this case the arbitrator has stated in his award that he has examined and considered the statement and counter-statement and all documents and on that basis has made his award. To my mind, the sole arbitrator kudari had no material before him to enable him to reduce the said sum of Rupees 10,181. 07 by half the amount. But at the same time it has to be borne in mind that it is not a matter to be modified by the Court by deriving its powers under section 15 (b) or (c) of the Arbitration Act, 1940. It is essentially within the domain of the arbitrator to appreciate the position and to make a proper award. The award under the circumstances could not have been said to be made in imperfect form or that it contained an obvious error which could be amended without affecting the decision of the arbitrator. The said arbitrator without appreciating the scope of the reference before him had made a perverse award without any material before him to arrive at that finding. It was totally against the materials placed before him and any reasonable person sitting in this position could not have arrived at such, a finding on the materials before him. In my opinion, it is a fit case which ought to be remitted to the said arbitrator so that he could make a proper award on the materials before him. That is the only way the award can be made an arbitrators award; otherwise, if the amount is allowed to be enh