JUDGMENT

M.M. DAS, J. : This appeal has been preferred against the judgment and order dated 23.2.1991 passed by the Subordinate Judge, Rourkela in Misc. Case No.99 of 1989 and T.S. No.36 of 1989 setting aside the award made in favour of the appellant on the ground that the Arbitrators have misconducted the proceedings as they had not attended to the question of limitation, which was brought to their notice from time to time.

2.The appellant has challenged the impugned order as perverse and not sustainable.

3.It is submitted that the award in question is a non-speaking award. The Court below held that (a) the Arbitrators had jurisdiction to pass a non-speaking award (b) the Arbitrators have considered the cases of both the parties and passed an award after taking into account the counter claim (c) the Arbitrators have delivered the award within the scope of reference.

4.Having held all the above issues in favour of the claimant, the Court below in paragraph-13 held as follows :

“............. Had a limitation prime been considered by the Arbitrators, the possibility of passing award in favour of opposite party No.1 may be remote and this possibility is not ruled out.”

And set aside the award basing on the above finding which is not sustainable either in facts or in law.

5.A few dates which are relevant and borne out from the lower Court records, are available on record. Exhibits 11, 13, 14 and 18 go to establish that the claimant’s dues was not settled and as late as in July, 1985, the security furnished in the form of Bank Guarantee was released. On 29.10.1986, the claimant had issued notice for payment of dues and there was no response, on 31.8.1987, the claimant sought for resolving the dispute through arbitration. In November, 1987, the respondent nominated their Arbitrator in terms of the contract and thereafter the claimant nominated his arbitrator. The arbitration clause is extracted hereunder for ready reference.

“If at any time, any dispute or differences whatsoever shall arise between the purchaser and the contractor upon, or in relation to, or in connection with the contract, either party may forthwith give the other, notice in writing of the existence of such question, dispute or difference and the same shall be referred to the adjudication of two arbitrators, one to be nominated by the purchaser and the other to be nominated by the contractor ..............”

6.Both the Arbitrators entered upon reference. The appellant filed his statement of facts claiming for an award of Rs.22,00,329.08. The respondent No.1 filed an application questioning the maintainability of the claim, status of the partner of the firm to make reference, question of limitation and praying for a preliminary hearing. The respondent No.1 was directed to file its counter. The Arbitrators passed an order that they would consider the preliminary issues along with other issues. Thereupon the respondent No.1 filed its counter/statements denying the claim of the appellant. The Arbitrators passed a non-speaking order directing payment of Rs.3,88,000/- to the appellant without deciding and considering the preliminary issues.

7.When the award was filed for making it a rule of the Court, the respondent No.1 filed an application under Sections 30 and 33 of the Arbitration Act (for short ‘the Act’), 1940, which was registered as Misc. Case No.99 of 1989 and T.S. No.38 of 1999, to set aside the award on the following grounds :

(i)Award not supported by reasons though respondent No.1 filed petition pressing for reasoned award.

(ii)Arbitrators ignored respondent No.1’s counter claim.

(iii)Though the Abitrators reserved order on the point of limitation, maintainability of claim and status of the partner to refer disputes for Arbitration, no orders were passed.

8.By the impugned order, the then learned Sub-Judge, Rourkela, now Civil Judge (Senior Division), Rourkela on 23.2.1991 returned the following findings.

(i)Application under Sections 30 and 33 of the Arbitration Act is