Point of Law : Arbitration – Appeal – In a proceeding under Section 37 this Court is not sitting as an Appellate court over the Arbitrator's decision.

JUDGMENT :

C.S.Sudha, J.

Is a Cross Objection maintainable in a proceeding under Section 37 of the Arbitration and Conciliation Act, 1996 (the Act), is one among the points we are called upon to answer in this appeal. This appeal filed under Section 37 of the Act is against the order dated 11.02.2020 in O.P.(Arb)No.27/2017 of the Additional District Judge-V, District Court, Kozhikode. The appellant herein is the claimant in the arbitral proceedings and the respondent before the court below. The respondent herein is the respondent in the arbitral proceedings and the petitioner before the court below. The parties in this appeal will be referred to as described in the arbitral proceedings.

2. The brief facts A contract for civil works for residential-cum-commercial complex, namely, “COXSWAIN-23” at Kozhikode was awarded to the respondent vide Letter Of Acceptance and Work Order dated 16.04.2012. The total contract value was Rs. 5,57,00,000/-. The date of commencement of the work was 16.04.2012. The time period stipulated for completion of the work was 18 months, that is, by 31.10.2013. The work as per the contract was not completed by the respondent, who in the meeting held between the parties on 27.07.2012, requested for a full and final settlement of his account. In the said meeting it was agreed to initiate the process of termination of the contract. Accordingly, the respondent submitted Ext.C15 final bill dated 30.07.2012. The claimant then issued Ext.C16 notice dated 31.07.2012 calling upon the respondent to restart the work or to show cause as to why the contract shall not be terminated. The respondent vide Ext.C17 dated 06.08.2012 replied stating that he was not willing to continue with the work as he was unable to meet the time-line and specifications in the contract. The claimant then terminated the contract by way of Ext.C18 letter dated 13.08.2012. The respondent sent Ext.C20 letter dated 13.10.2012 demanding the amounts due to him for the work done by him. This was denied by the claimant who in turn sent Ext.C21 letter dated 02.11.2012 claiming the amounts due to them. As disputes arose, the claimant by way of Ext.C23 letter dated 15.11.2012 invoked the arbitration clause and appointed Sri. P.Somasundaran, an Engineer, as the sole Arbitrator.

3. Before the learned Arbitrator, both sides filed their respective claim statements. After affording an opportunity to both sides to adduce oral and documentary evidence and after hearing them, the learned Arbitrator passed an Award dated 29.09.2016. All of the several claims made by the claimant except claim no.6 regarding Liquidated Damages (LD) was rejected by the learned Arbitrator. The counter claim filed by the respondent was also rejected. Aggrieved by the Award, the respondent Contractor, moved the District Court under Section 34 of the Act. The court below set aside the Award relating to LD and counter claim no.1 of the respondent Contractor was allowed. Aggrieved, the claimant, who is the respondent before the court below is before us.

4. Heard Sri. Rajiv Abraham George, the learned counsel for the appellant and Sri. Arun Krishna Dhan, the learned counsel for the respondent.

5. In the appeal memorandum it is alleged that the court below without any justification interfered into the findings of the learned Arbitrator and travelled beyond its jurisdiction contemplated under Section 34 of the Act. The court below misinterpreted the law laid down in the matter by the Hon'ble Supreme Court and hence the order of the court below is liable to be set aside. On the date on which the present appeal was taken up for hearing, it was submitted by the learned counsel for the respondent that a cross objection has been filed by the respondent challenging the findings of the court below to the extent the court failed to appreciate the pleas put forward by the respondent and incorrectly confirmed the findings of the learned Arbitrator. We will first deal with the appeal and thereafter with th