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B.P. Dharmadhikari, J.—In this Appeal u/s 39 of the Arbitration Act, 1940; the Employer challenges the order dated 18/1/2006 passed by Civil Judge, Senior Division, Vasco-da-Gama in Special Civil Suit No. 51/97/A setting aside the Award dated 20/12/1996 of Arbitrator appointed by the parties as per agreement dated 30/9/1993 between them. Basic finding by said Court is that Award filed before it for making rule of court was not a suo motu act of arbitrator and it upheld the objection of contractor/ present Respondent that it was barred under Article 119(a) of the Limitation Act. The Respondent has also filed a cross-objection as its prayer to set aside that award on the ground of lack of jurisdiction in appointed arbitrator and his misconduct has been rejected. We have been assisted by Senior Advocate Shri Kakodkar for Appellant and Senior Advocate Nadkarni for the Respondent. Looking to the arguments and nature of controversy, we find that mentioning of the questions arising before us in the light of arguments of parties at the beginning itself is necessary to save the prolixity as the facts can very well be appreciated while examining the issues.
Following points or issues arise for determination before us:
A. Whether Award as filed before the Trail Court was suo motu action of the Arbitrator and therefore within limitation?
B. Whether Cross-objection as filed by the present Respondent is maintainable?
C. If answer to "B" above is in affirmative, whether lack of jurisdiction or invalid appointment of the arbitrator can be the ground for setting aside of the award?Whether appointment of Shri Saraswati as Arbitrator is void? Whether Respondents have waived their objection in this respect by their unqualified participation in Arbitration proceedings before him?
D. If answer to "B" above is in affirmative, whether Shri Saraswati as Arbitrator was duty bound to assign reasons for his findings. Whether Shri Saraswati as Arbitrator has given any reasons and those reasons are legally sufficient in eye of law to sustain his Award?
E. Whether impugned judgment warrants any interference?
We proceed to examine the points or issues below.
In so far as issue of limitation is concerned, the learned trial Court i.e. Court of Civil Judge, Sr. Division, Vasco-Da-Gama, Goa, has recorded that Award presented to it for making Rule of Court u/s 14 of Arbitration Act, 1940 was at the instance of present applicant i.e. Airport Authority and not suo motu and hence, barred by limitation as prescribed in Article 119(a) of the Limitation Act, 1963. It has held that there was no application made by Appellants to make the award Rule of Court and it relied upon full bench judgment of Hon''ble Kerla High Court in case of Government of Kerala v. V.J. Chacko 1995 AIHC 2100 in support thereof.
It is not in dispute that Arbitrator made the award on 20/12/1996 and on 26/12/1996, the Airports Authority received communication from him regarding it. On 2/1/1997 Arbitrator made corrigendum to his Award. Letter dated 19/3/1997 was sent by the Appellants to Arbitrator on 20/3/1997 and he was requested to file it in the Court. This letter dated 19/3/1997 is written by the Airport Director and at top after mentioning the arbitration proceedings, the names of claimant and respondent are given. In the main text, the respondents i.e. present Appellants have called upon the Arbitrator u/s 14(2) to file award in the Court with depositions, documents in order to make it the rule of the court. The forwarding letter is in correspondence like form, but the purpose of making the award the Rule of Court is reflected in it also. The letter dated 19/3/1997 is, thus, more like an application for making the Award the Rule of Court. Thereafter, the Arbitrator has written to one Advocate C.R. Rodrigues on 2/4/1997 informing him that he was forwarding all documents and deposition with request to him to file it in proper forum u/s 14(2) for making it Rule of Court. This Advocate vide his application dated 30/6/1997 filed said Award in trial Court. In first paragraph he has pointed out the request made to him by the Arbitrator. In second paragraph, he states that award and documents have been filed u/s 14(2) of Arbitration Act and index, original award dated 25/12/1996 and original letter addressed to him by Shri Saraswati are mentioned as its enclosures. By order upon it CJSD,Vasco then issues notice to parties returnable on 13/11/1997.
Both the learned Senior Advocates have relied upon various judgments. But then apart from the two modes of filing award in Court specified in Section 14(2), the power with the arbitrator of suo motu filing Award in Court is not in dispute. The learned Single Judge of this Court has in, Hede Navigation Ltd. Vs. The Union of India (UOI), after distinguishing the judgment of Hon''ble Apex Court in Patel Motibhai Naranbhai and another Vs. Dinubhai Motibhai Patel and others, observed that:
6.Since the said Award made on 26th September, 1989 was filed by the Arbitrators in this Court on 23rd December, 1993, Mr. Popat, learned Counsel appearing for the petitioner, submitted that the said Award was filed in this Court beyond the period of limitation and as such, no cognisance thereof can be taken by this Court. In support of his submission, Mr. Popat has put reliance on the judgment of the Supreme Court in the case of Patel Motibhai Naranbhai and another Vs. Dinubhai Motibhai Patel and others, I find no merit in the submission made on behalf of the petitioner. Article 119(a) of The Limitation Act, 1963 prescribes period of limitation for the parties to arbitration to file an award in Court. According to Article 119(a) an award can be filed in Court within 30 days of service of the notice of making of the award. In the instant case, it is an admitted position that the Arbitrators had filed the said Award in this Court. u/s 14(2) of the Act the Arbitrators or Umpire at the request of any party to arbitration agreement or if so directed by the Court cause the award or a signed copy of it filed in Court. This section does not prevent the Arbitrators or Umpire to file the award in Court suo motu, though it specifically provides for Arbitrators or Umpire to file the award in Court on an application being made by a party to the arbitration agreement. In the case of Patel Motibhai Nanabhai and Anr. on which reliance was placed by Mr. Popat, the arbitrator had moved an application for filing the award in Court and to make the award the rule of the Court. In para 7 of the judgment, the Supreme Court, has in terms stated as under:
In the instant case, the arbitrator has not merely filed the award in Court, he has also made an application (Misc. Civil Application No. 19/92 in the Court of the Civil Judge (SD) Anand u/s 14 of The Arbitration Act and has engaged lawyer G.B. Shah to obtain orders as prayed.
In the facts of that case and in context thereof, the Supreme Court took the view that the application made after lapse of 30 days was barred by limitation. However, the Supreme Court has not laid down the law that an Arbitrator or Umpire, as the case may be, suo motu without making application as contemplated u/s 14(2) of the Act cannot file an award in Court after lapse of 30 days of service of notice of making of the award. In the instant case no such application was made by the Arbitrators as contemplated u/s 14(2) of the Act nor there was an application by the Arbitrators for making the said Award as Rule of the Court. Hence, on the facts of the case, the judgment on which the reliance has been placed by Mr. Popat does not apply.
Thus arbitrator can of his own file the award without moving any application. Question before us is whether in present facts it can be said that arbitrator moved any application as such for making it the Rule of Court.
Before considering this aspect, we find it proper to consider certain other precedents in the matter. Senior Advocate Shri Nadkarni has pointed out that cases decided under old Limitation Act, 1908 will not be relevant for considering the current position. Preamble of Indian Limitation Act, 1908 read "Whereas it is expedient to consolidate and amend law relating to limitation of suits, appeals and certain applications to Courts; and whereas it is also expedient to provide rules for acquiring by possession the ownership of easements and other property; It is hereby enacted as follows:-". According to him, as arbitrator is not the "Court", a particular view has been taken in judgments delivered under said old Act. The Limitation Act, 1963 states that it is an Act to consolidate and amend the law for limitation of suits and other proceedings and for purposes connected therewith. Except for this, the language of the article prescribing the period of limitation has not undergone any change. Under 1908 Act, it was Article 178; while under 1963 Act it is Article 119. Senior Advocate Shri Kakodkar has, however, invited our attention to the recommendation of Law Commission and urged that said report has not been implemented so far. Third Report of Law Commission of India dated 21/7/1956 on Limitation Act,1908 in para 172 states the position that arbitrator can file the award even after party''s application therefore has become time-barred and even after a suit on original cause has been instituted as there is no limitation. Report mentions judgment in case of Gendalal Motilal v. Mathura Das in AIR 1951 Nag. 32 and states that a provision is therefore required fixing time within which arbitrator should file his award. Shri M.C. Setalvad was the Chairman of this commission while Hon''ble Ex. J. Shri Chagla who himself had taken identical view in Jayantilal Jamnadas Vs. Chhaganlal Nathoobhai, was one of its members. Inspite of this express recommendation, learned Senior Advocates states that the position in 1963 Limitation Act remains same and has not been improved. He, therefore, argues that legislative mandate is clear and must be honoured.
In Jayantilal Jamnadas v. Chhaganlal Nathoobhai (supra) learned Single Judge of this Court accepts the contention that limitation in Article 178 of 1908 Limitation Act is attracted when party applies to Court as per Section 14(2) of Arbitration Act and when arbitrator files the award suo motu in Court, as he is not making any application to the court, Article 178 does not apply. It is found that Limitation Act would apply to a party to a proceeding and not to a person who has no interest in its result. This Court has realised the the incongruous situation arising therefrom but found that arbitrator would definatelly be filing award within reasonable time and it was for legislature to take care of such inconsistencies. As the language of statute was clear and statute deprived party of a valuable right, court was bound to give effect to it. In Gendalal Motilal v. Mathura Das, learned Single Judge of Nagpur High Court reiterated same view and made reference to this Bombay view. In Champalal Vs. Mst. Samrath Bai, Hon.Apex Court holds as under:
In appeal before us counsel for the appellant, raised six points: (1) the filing of the award was not within time as no application was made u/s 14 within the time allowed by the Limitation Act; (2) that the award required registration and was not registered in accordance with law and the mere fact that it was registered does not clothe it with legality; (3) the First Additional District Judge had no jurisdiction to grant three months'' extension of time to the arbitrators for making the award which was granted on July 26, 1946; (4) that the arbitrators were guilty of misconduct; (5) that the award is in excess of the power given to the arbitrators under the agreement of arbitration and (6) even if the award was proper and legal the respondent had refused to adopt the appellant and therefore the decree should have been as provided by the award on the happening of that contingency and in the alternative the First Additional District Judge who passed the decree had no jurisdiction to take subsequent events into consideration.
In our opinion points Nos. 1, 2 and 3 are wholly without substance. The award was made on October 18, 1946, and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award. It has not been shown as to how the filing of the award is barred by limitation. Article 178 of the Limitation Act which was relied upon by the appellant applies to applications made by the parties and not to the filing of the award by the arbitrators.
Thus this larger Bench of Hon. Apex Court states that Article 178 applies to parties and does not apply to arbitrators. The Bombay view again shows same line of reasoning. Law Commission had suggested amendment to provide limitation for arbitrators also and it has not been acted upon. Thus point of distinction sought to be made by learned adv. for Respondent does not exist at all.
The judgment of Hon. Apex Court in Patel Motibhai Naranbhai and another Vs. Dinubhai Motibhai Patel and others, heavily relied upon by Adv. Nadkarni shows that after arbitrator gave intimation of his award dated 26/2/1986 to all parties, on 24/4/1986 objection was raised before him and award was not filed in court. There appeared to be some understanding & parties also did not take steps as per Section 14(2). On 31/1/1992 a suit claiming right as per that award came to be instituted by Jayantibhai-the 4th respondent before Apex Court and its filing was objected on the ground that it was for enforcement of award which was neither registered nor made rule of court. On 8/2/1992 Jayantibhai asked arbitrator to file award. Arbitrator Dinubhai filed award with application to make it rule of court and also engaged advocate to prosecute it. Hon. Apex Court found this action incomprehensible and biased. The observations of Hon. Apex court in Para 9 are in this background and it is observed that arbitrator is not required to apply to court and application u/s 14(2) is to be made within 30 days from notice of award. Even if Article 119 is held not applicable to arbitrator, Article 137 will come into way of arbitrators making such application. Article 137 is residuary article prescribing time limit of 3 years. In para 10 Hon. Apex Court finds that Jayantbhai induced the arbitrator in the matter. It is held that the court should have declined to entertain such application moved after 6 years. It is important to note that the arbitrator there filed an express application by engaging a lawyer and he had given up his neutral mantle. The provisions of Article 137 are pointed out by Hon. Apex Court as it provides outer time limit in all residuary matters and period of 6 years is found to be unreasonable. It has not been held that Article 119 was applicable to arbitrator. Its consideration shows that Jayntilal could not have achieved indirectly what was prohibited to him by law directly. The larger bench of Hon. Apex Court in Champalal Vs. Mst. Samrath Bai, has already concluded that Article 119 of Limitation Act does not apply to an arbitrator. We find that learned Single Judge of this Court has rightly distinguished this ruling in Hede Navigation Ltd. v. Union of India (supra). In facts before us, the provisions of Article 137 are not relevant at all.
Now the judgment of full bench of Hon. Krela High Court needs to be considered. Government of Kerla v. V.J. Chacko 1995 AIHC 2100 is relied upon by the trial court to hold the filing of award to be timebarred. The Hon. Full Bench holds that when arbitrator files the award in court at the instance of a party, the party must approach him within period of limitation prescribed in Article 119(a). After expiry of such time arbitrator can not at the instance of a party approaching belatedly, file the award relying upon the legal position that of his own he can file the award at any time. These observations are preceded by finding that arbitrator who delivered award did not file it and it was field by his successor upon written application of a respondent. Hon. Full Bench holds that what a party is directly not permitted by law, can not be allowed to be done indirectly by it through such approach to arbitrator. Earlier paragraph No. 6 notes the third report of law commission and the fact that legislature did not fill in the loop-hole. It also notices that law of limitation need to be construed as it is. In paragraph 8, the Hon. Full Bench declines to usurp legislative function. But then in para 9 finds the filing of award at the instance of respondent and extends application of Article 119(a) to that application also. The award was dated 28/2/1978 and its notice was served on parties. Respondent moved arbitrator on 4/2/1984 i.e. near about 6 years with necessary stamp papers and prayer to condone the delay. Successor arbitrator then filed the award on 18/2/1984. In somewhat similar situation, the Hon. Apex Court has pointed out Article 137 in Patel Motibhai v. Dinabhai Motibhai (supra).
Thus in both these cases, awards were held filed only due to inducement and otherwise were never filed for long period and but for such inducement, would not have been filed. The normal civil remedy for recovery or other relief in the matter had already gone timebarred and such stale cause was sought to be revived by the parties by influencing the arbitrators. The question arises whether present filing which is within less than 7 months of the award can be viewed in similar light. The findings of the trial court therefore need scrutiny. The Appellant''s letter dated 19/3/1997 expressly mentions Section 14(2) and calls the arbitrator to file award in the court to make it rule of court. Arbitrator in turn requested Adv. Rodriques vide his letter dated 2/4/1997 to file it in appropriate forum for that purpose. Said letter again mentions Section 14(2) and all records were also made over to him. Advocate Rodriques does this on 30/6/1997. Said advocate mentions request made to him and also that filing was u/s 14(2) of the Arbitration Act. He however does not make any express prayer for making the award the rule of court. Advocate Rodroques has at the end added "For which in duty bound I shall ever pray". The original letter dated 2/4/1997 is also filed along-with records of arbitrator by said Advocate Rodriques. Though it is nobody''s case that Advocate Rodriques filed any power for arbitrator or prosecuted the matter, still the letter of arbitrator contained desire to make the award rule of court with reference to Section 14(2). This letter uses the words "Award alongwith deposition and all documents which have been taken and proved before me" which is the language of Section 14(2). Letter dated 19/3/1997 also contains same words. Thus the desire of Appellant to seek filing of award u/s 14(2) and similar intention of arbitrator is amply demonstrated by this correspondence. The arbitrator has not of his own sent the award to the court and merely because award has been filed within short period after expiry of limitation, it can not be seen as a voluntary action on part of the arbitrator. This arbitrator Shri Saraswati was in employment of the appellant & has acted as required of him by his employer. Thus finding in this respect by the trial court can not be labeled as perverse and We can not in present appeal interfere with it. Though Adv. Kakodkar has urged that filing is voluntary and the reference to Section 14(2) or to making of award the rule of court is unwarranted which needs to be ignored, We can not, in above backdrop, accept such arguments. The reliance upon the judgment of hon. Apex Court in case of Oil and Natural Gas Corporation Ltd. Vs. Nippon Steel Corporation Ltd., is also misconceived because in that case the M/s Little & Co. filed the award as per request of the arbitrator and not upon any request by their clients who were the appellants in Apex Court. The Hon. Apex Court has recorded a finding that though M/s Little & Co. were panel advocates of appellant, they were not standing counsels and acted on behalf of arbitrators while filing award in court. It is noticed in paragraph 21 that appellants had no intention to file the award in court and they did not engage M/s Little & Co. to coordinate with the arbitrators. Thus this factual matrix is contrary to one available here and said judgment, therefore, has no application. Similarly in Food Corporation of India and others Vs. E. Kuttappan, though the Hon. Apex Court holds that when upon request of party, the arbitrator handed over entire papers to its counsel for filing in court, it was filing authorised by and therefore by the arbitrator himself. The observations appear in totally different background because the question whether objections filed by the respondents were time-barred or not was being looked into and Article 119(a) of Limitation Act was not in issue. Judgment of Hon. Apex Court in Kumbha Mawji Vs. Union of India (UOI), relied upon by the Appellants is also considered in said judgment. All these judgments therefore clearly show that answer to the question whether filing of award is voluntary or induced by the party needs to be searched in facts & circumstances of each case.
Advocate Kakodkar has argued that filing of award beyond limitation is not ground for invalidation u/s 30, but prayer has to be to take the award off the file as in Jayantilal Jamnadas v. Chhaganlal Nathoobhai (supra). It is true that Section 30 in its last part while using the words "is otherwise invalid" contemplates invalidity within award itself i.e. in the discharge of obligations cast upon the arbitrator by Arbitration Act. The objection of expiry of period of limitation arises after the award is made and that aspect is regulated by Limitation Act. It can not be disputed that after expiry of limitation, the Court will not be in position to exercise the jurisdiction to make that award a Rule of Court. Law permits the Respondents to oppose the steps taken by Appellants to make the award Rule of Court. They can, therefore, point out that Court moved for that purpose can not take cognizance of request made as it is barred by limitation and that Appellants have no such surviving right. This right to point out bar of jurisdiction and their right to have award set aside u/s 30 are different from each other but then it can not be said that bar of limitation can never be pointed out by them. The provisions of Article 119(a) enacted for them can not be allowed to be defeated in such manner and Court proceeding to make the award the rule has to find out whether remedy before it is invoked within limitation or not. Only because Respondents pray for setting aside the award on that ground also and not for taking it off the file, the right created in them by expiry of limitation can not be allowed to be defeated. The trail court can not because of such technical defect get the jurisdiction lost by it due to expiry of limitation period.
Though the First Appeal filed by the Appellants therefore needs to be dismissed, that is not the end of matter as Counter-claim made by the Respondent now needs to be looked into. Its tenability has been questioned on the ground that as impugned judgment is in its favour, Respondent can not maintain the cross-objection. According to Respondent, the cross objection is tenable as it is u/s 39 of Arbitration Act. Support is taken by Advocate Kakodkar from Municipal Corporation of Delhi and Others Vs. Intnl. Security and Intelligence Agency Ltd., wherein Hon''ble Apex Court states that the cross-objection can be preferred if applicant could have sought for same relief by filing appeal in conformity with provisions of Section 39 & is not maintainable, if subject-matter of it is to impugn such order which does not fall within purview of any of the categories contemplated by Clauses (i) to (vi) of Section 39. It holds that right to take a cross- objection is the exercise of substantive right of appeal conferred by a statute. Available grounds of challenge against the judgment, decree or order impugned remained the same whether it is an appeal or a cross- objection. The difference lies in the form and manner of exercising the right; the terminus a quo (the starting point) of limitation also differs. It also declares that, it is not merely the procedure prescribed by the CPC which has been made applicable to proceedings under the Arbitration Act by Section 41(a) of the Act; the entire body of the Code of Civil Procedure, 1908 has been made applicable to all proceedings before the Court and to all appeals under the Arbitration Act, 1940. The provision is general and in its applicability which cannot be curtailed; the only exception being where the provisions of the Arbitration Act and/or of Rules made there under may be inconsistent with the provisions of the Code of Civil Procedure, 1908 in which case the applicability of the latter shall stand excluded but only to the extent of inconsistency. Hon''ble Apex Court states that a cross-objection can be preferred if the applicant could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39 of the Act. Just as the enabling provisions of cross objection contained in Sub-rule (1) of Order 22 of the CPC are applicable to appeals u/s 39 of the Act the disabling provision contained in Sub-rule (4) too would apply to appeals u/s 39 of the Act in view of the generality of the provisions contained in Section 41 of the Act. If the Appellate Court forms an opinion that the original appeal itself was incompetent or not maintainable as it was filed against an order not falling within one of the Clauses (i) to (vi) of Section 39 then the cross- objection shall also fall to the ground and cannot be adjudicated upon on merits.
It would be appropriate to reproduce the relevant provisions here. Sections 39 & 41 of Arbitration Act, 1940 which read:
Section 39. Appeallable orders-(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order:
An order
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award;
Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
Section 41. Procedure and powers of Court.-Subject to the provisions of this Act and of rules made there under
(a) the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court, and to all appeals, under this Act; and
(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court:
Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect of any of such matters.
Perusal of impugned judgment of trial Court shows that in para 27 while summarizing the challenges, it mentioned that the award was assailed on three grounds by the Respondents - 1. award filed beyond the prescribed period of limitation, 2. the appointment of arbitrator was without jurisdiction and 3. arbitrator has misconducted himself. It held that Respondent could not substantiate last two grounds but they succeeded in proving that the prayer to make the award Rule of Court is barred by limitation. In para 28, it holds award filed was non est and nullity. In operative part, it sets aside the Award and directs decree to be drawn accordingly. The question whether Award could have been set aside on the ground that it was filed beyond limitation is, therefore, not very germane here as what has been actually done squarely falls u/s 39(1)(vi) of the Arbitration Act. The Hon''ble Division Bench of Rajasthan High Court in Ganga Das Vs. Mst. Gopli, has stated that what lower Court ought to have done as per law is not decisive and right of appeal depends upon what such Court actually does in the matter. In Sohan Singh Vs. Jawala Singh Natha Singh and Another, the learned Single Judge of that Hon''ble High Court followed this view. We also feel that for this purpose the language or result apparently declared by the impugned order perse in the light of legal provisions is determinative and not its interpretation. Therefore, we can not hold here that appeal as filed before us is not maintainable. Similarly refusal to set aside the award on grounds of absence of jurisdiction and misconduct can also be assailed u/s 39(6) and hence cross objection of Respondent is also maintainable. Advocate Shri Nadkarni has contended that as delay in filing the cross objection is condoned by this Court, Respondent has right to argue the same on merits. We find that order condoning delay in filing the cross objection by itself in the absence of express finding on maintainability in it, can not be used to avoid the scrutiny in that respect.
One of the objections raised by the respondent is about the jurisdiction of Shri Saraswati to act as arbitrator in view of Clause 40 of the agreement between them. Before proceeding further in the matter it is necessary to deal with preliminary objection being raised by Senior Advocate for Appellants. According to him, such ground can not be used u/s 30 of the Arbitration Act to have Award set aside. Said Section stipulates grounds on which the award can be set aside. Apart from misconduct of the arbitrator, improper procurement of the Award and its being otherwise invalid are also the grounds for setting it aside. However, question before us is whether defect in jurisdiction is covered by the words "is otherwise invalid" and further whether by participation in proceedings before the arbitrator, the Respondent can be said to have acquiesced in his appointment and loose right to object to it. The question whether there was any such defect in his appointment also needs to be gone into.
Before proceeding further in this respect, we find it appropriate to point out the clause which deals with appointment of arbitrator. The said Clause 40 is as under:
All disputes and differences arising out of or in any way touching or concerning this agreement (except those the decision whereof is otherwise herein before expressly provided for) shall be referred to the sole arbitration of the Chairman, National Airports Authority, New Delhi, and in case his designation is changed or his office is abolished to the sole arbitration of the officer who for the time being is entrusted, whether or not in addition to other functions, with the functions of the Chairman, National Airports authority by whatever designation such officer may be called (hereinafter referred to as the said officer) and if the Arbitrator so appointed is unable or unwilling to act, to the sole arbitration of some other person similarly appointed and willing to act as such arbitrator. It will be no objection to any such appointment that the arbitrator so appointed is an employee of the Authority that he had to deal with the matters to which this agreement relates and that in the course of his duties as such Authority servant he has expressed views on all or any of the matters in dispute or differences. The award of the arbitrator so appointed shall be final and binding on the parties. The arbitrator may with the consent of the parties enlarge from time to time the time for making and publishing the award.
Thus, it contemplates reference of dispute to Chairman, National Airports Authority, New Delhi, and in case of change of his designation or that his office is abolished, to the officer entrusted with duties of that post. It is not in dispute that the differences between the parties referred to arbitration constitute arbitrable disputes. Said Clause 40 is not exhaustive & permits resolution of disputes by any other officer even if the Chairman or his successor is unable or unwilling to act. In that event, the disputes can be referred to sole arbitration of some other person similarly appointed and willing to act as such arbitrator. The clause further provides that character as an employee of the Airports Authority of such arbitrator shall not be a ground of objection to his appointment. The clause nowhere expressly requires the arbitrator to record his reasons. The present Respondent sought the reference of its dispute to arbitrator and accordingly, on 16.2.1996 Shri Saraswati came to be appointed as an arbitrator. The said appointment is by the Chairman, Airports Authority of India and it mentions that the arbitration clause has been invoked by the Respondent and hence because of power confirmed upon him by the said agreement, the said Chairman appointed Shri S. K. Saraswati as Sole Arbitrator. It further mentions that the statement of claims/disputes and counter claims, subject to their admissibility under Clause 40 were the subject-matter of arbitration proceedings and as the amount involved was more than Rs. 50,000/-the arbitrator had to give reasons in his award. Shri Saraswati was the Director of Communication, AAI (NAD), Mumbai, Airport, Mombai. The Respondent contends that arbitration clause required arbitration only by the Chairman and, Shri Saraswati, therefore, could not have been appointed as arbitrator and hence, he lacked jurisdiction initially itself. Therefore, the award declared by him is void. According to the Appellants, the award declared by Shri Saraswati does not suffer from any vice and the present Respondent acquiesced in its jurisdiction and waived its rights, if any, in the matter by participating in the proceedings before him.
The Respondent has relied upon various judgments in support of its contentions that there cannot be any acquiescence by waiver by mere participation in such matters. AIR 1946 72 (Privy Council) is the first judgment and its last paragraph shows that the expression "being otherwise invalid" fell for consideration in that matter. The question was referred to Full Bench and the said question was whether objection to validity of reference to arbitration came within the provisions of para 15 of Schedule II of Civil Procedure Code, 1908 in force. The Privy Council has noticed that the Full Bench was divided and learned Chief Justice and Harries J. considered that the validity of reference was covered by the said provisions, while Iqbal Ahmad J. considered that it did not. The Privy Council agreed with the view of Sir Iqbal Ahmad, J., and opined that all the powers conferred upon the Court in relation to an award on a reference made in a suit presuppose the valid reference on which an award has been made which may be open to question. If there is no valid reference, the purported award is a nullity and it can be challenged in any appropriate proceeding. In A.R. Savkur Vs. Amritlal Kalidas and Others, the Division Bench has considered this Judgment and found that when this view was taken there was no provision of law in Second Schedule to CPC corresponding to Section 33 of the Arbitration Act, 1940. Section 33 dealing with all challenges to an arbitration agreement or an award and Section 32 barring all suits in respect of the existence effect or validity of an arbitration agreement or award, were, therefore, not required to be considered by the Privy Council. The Privy Council could, therefore, contemplate a suit for the purpose of a declaration that a particular award was a nullity, but, as far as Arbitration Act is concerned all proceedings with regard to arbitration, arbitration agreements and awards need to be taken as per the said Act constitutes a self-contained Code and, therefore, distinguished the Judgment of Privy Council. It is obvious that, that distinction stands good even today and the contention that phrase "being otherwise invalid" does not cover the challenge to jurisdiction of arbitrator, therefore, needs to be rejected.
In The Union of India (UOI) Vs. Shri Om Prakash, the Hon''ble Apex Court has considered the issue whether awards can be set aside as invalid when reference was incompetent. There it was found that the respondent before the Hon''ble Apex Court made applications u/s 8(2) of the Arbitration Act for appointment of new arbitrators and he named several officers praying that one of them could be appointed. The Court appointed one Col. Ranbir Singh whose name was not in the respondent''s list to act as an arbitrator and further directed that papers be sent to him to give his award within 2 months. The contention was after appointment of arbitrator, the Court ceases to have jurisdiction and cannot make an order of reference and issue further directions. In para 5, the Hon''ble Apex Court has noticed that when Privy Council decides the case in between Mt. Mariam v. Mt. Amina (supra), there was no provision in the second schedule to the CPC and now appropriate proceedings contemplated by Arbitration Act, 1940 was an application to Court. The words "or is otherwise invalid" in Clause (c) of Section 30, therefore, have been held to be wide enough to cover all forms of invalidity including invalidity of the reference. Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, relied upon by the Respondent lays down the fundamental principle that a decree passed by a Court without jurisdiction is a nullity and its validity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction strikes at very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.
Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, lays down that consent cannot confer jurisdiction, nor an estoppel against statute and reiterates the same view as mentioned above. This judgment also considers the judgment of this High Court in Union of India Vs. M/s. Ajit Mehta and Associates, Pune and Others, wherein Division Bench of this Court stated that Section 8 of Arbitration Act cannot be invoked for appointment of an arbitrator unilaterally, but Section 20(4) thereof can be availed of in such circumstances. The appointment of arbitrator, without consent of both parties was held void, being without jurisdiction and as he lacked jurisdiction, the award made by such arbitrator was found to be non est. In view of various judgments considered by the Hon''ble Apex Court in para 20, has concluded that the probate court alone has exclusive jurisdiction and the civil Court on original side or then the arbitrator does not get that jurisdiction even if consented to by the parties and the adjudication upon proof or validity of the will must be before the probate court. In U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd. and others, the Hon''ble Apex Court has held that existence or validity of an arbitration agreement is to be decided by the Court alone and arbitrator cannot adjudicate conclusively on the said question. The appellants were claiming adjudication u/s 33 in that respect and mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the dispute as to existence of the arbitration agreement or arbitrablity of the dispute does not dis-entitle them to arbitrate u/s 33 through the Court. Tamil Nadu Electricity Board Vs. M/s. Bridge Tunnel Constructions and others, Tamil Nadu Electricity Board Vs. M/s. Bridge Tunnel Constructions and others, also puts it beyond doubt that the arbitrator cannot clothe himself conclusively with the jurisdiction to decide or omit to decide the arbitrability of a particular item or the claim made by the parties. In Union of India v. Ajit Mehta and Associates (supra) ,the Division Bench of this Court holds that court can suo-motu set aside the award if case u/s 30 is not made out. It further assumed that it was right in view that the Court has suo motu powers to set aside an award on grounds other than those covered by Section 30, the awards were found made by arbitrators who could never have been appointed u/s 8 and hence, ab initio void and non est. The case was held to be not of a mere invalidity of the award either on account of an error apparent on the face of the award or on account of its being outside the scope of the reference or being made pursuant to an invalid reference. The award was a nullity from its inception since the very appointment of the arbitrator was without jurisdiction. The Court which made the appointment had no power u/s 8 to appoint the arbitrator and hence no arbitrator could have been appointed under the said section at all. It was not a matter of mere illegality in the appointment of the arbitrator but a lack of power to appoint the arbitrators in question. Since the arbitrator/s in question before it could not have acted in law, they had no legal existence. The arbitrators so appointed were prohibited by law to proceed with the arbitration. Hence the proceedings conducted and the award/s made by him/them were held non-est from the beginning & forever, to be regarded as such. The award was found patently illegal and void. This illegality going to the very foot of the award was not necessarily covered only by Section 30. Division Bench held that it could be raised as a ground to set aside the award even independently of the said section. Hence the Court not only had the power but also a duty to quash the award or to ignore it. Division Bench held that the nullity in such cases further runs with the award and the objection with regard to it can be raised at any stage including the stage of its execution or enforcement. The bar of limitation enacted by Article 119 of the Limitation Act therefore is held not to prevent a party from raising such objection or prevent the Court from using its suo motu power to set aside the award on that ground. Chhabba Lal v. Kallu Lal; Union of India v. Ajit Mehta; Union of India v. Om Prakash (all supra) are considered by Hon. Apex Court in Dharma Prathishthanam Vs. Madhok Construction Pvt. Ltd., wherein it is held that in the event of the appointment of an Arbitrator and reference of dispute to him being void ab initio as totally incompetent or invalid the award shall be void and liable to be set aside dehors the provisions of Section 30 of the Act, in any appropriate proceedings when sought to be enforced or acted upon. This larger bench of Hon. Apex Court mentions its Constitution Bench view in Khardah Company Ltd. Vs. Raymon and Co. (India) Private Ltd., which decided the issue from the view-point of jurisdictional competence and held that what confers jurisdiction on the Arbitrators to hear and decide a dispute is an arbitration agreement and where there is no such agreement there is an initial want of jurisdiction which cannot be cured even by acquiescence. It is clearly spelt out from the law laid down by the Constitution Bench that the Arbitrators derive their jurisdiction from the agreement and consent.
Consideration of two judgments relied upon by learned Senior Advocate Kakodkar here shows that there was no basic infirmity in the appointment of arbitrator or his award. In Prasun Roy Vs. Calcutta Metropolitan Development Authority and Another, Hon. Apex Court states where though a party is aware from the beginning that by reason of some disability the matter is legally incapable of being submitted to arbitration, participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him comes forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of a known disability, the same cannot be allowed. This principle applies both before and after making of the award. The principle is that a party shall not be allowed to blow hot and cold simultaneously. Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction. Following portion in Russel on Arbitration, 18th Edition page 105 explaining the position as follows is quoted by the Hon. Apex Court :-"If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances. they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence." In State Bank of India Vs. Ram Das and Another, it was noticed that objections to the conduct of the arbitrator were raised for the first time in Hon. Apex Court after High Court''s adverse comments on him. In this background, Hon''ble Apex Court states that when the party had knowledge of defect in jurisdiction or bias or malice of arbitrator participates in proceeding without any objection, by conduct it disentitles itself from raising such questions in subsequent proceedings. Both these rulings are, therefore, clearly applicable only if it is seen that the defect in appointment of arbitrator here did not go to the root of matter and nomination is not void. Senior Advocate Shri Nadkarni relied upon AIR 1982 Bom. 72. Gangaram Ratanlal v. Simplex Mills where the learned Single Judge of this Court holds that where arbitrator was not having jurisdiction for want of written arbitration agreement, mere acquiescence by a party to jurisdiction and admission of liability before him can not estop it from questioning his jurisdiction. Thus, again it is basic lack of jurisdiction which is found clinching the jurisdictional aspect. In para 33 of Bihar State Mineral Dev. Corpn. and Another Vs. Encon Builders (I) Pvt. Ltd., same aspect of inherent lack has been highlighted. Even if it is settled law that arbitrator Shri Saraswati could not have conclusively adjudicated the objections to his competency or jurisdiction, the facet may assume some relevance if ultimately here it is found that he lacked inherent jurisdiction as his appointment was ab initio void. If there is no such fundamental error, the continuous participation by Respondent Contractor without any objection in proceedings before him will definitely estop him from raising such challenge for the first time after an adverse award.
The position in law which emerges, therefore, is that if the arbitrator lacks inherent jurisdiction, the said jurisdiction cannot be clothed upon by consent of parties by mere fact that the parties have participated without any objection in the proceedings before him. However, in the present case, the arbitration clause itself permits the Chairman of appellant authority to appoint any other Officer as mentioned therein if the Chairman is unwilling or not available for acting as an arbitrator. Language of Clause 40 itself permits reference of dispute to any other officer if Office of Chairman is abolished or his designation is changed. However, it contemplates reference in that case to the Officer for the time being entrusted with the function of Chairman. The later part then states that if the arbitrator so appointed is unable or is unwilling to act the reference can be made to the sole arbitration of some other person similarly appointed and willing to act as such arbitrator. The clause further clarifies that the objection cannot be raised to the entrustment of job to the arbitrator on the ground that the Officer so appointed is an employee of authority or then he had to deal with the matter with which the agreement relates. Respondent/contractor did not challenge the appointment of arbitrator on the ground that he was employee or then he was required to deal with the matter regulated by agreement. The only objection is that the said officer was not competent and as Chairman was available he could not have entrusted the arbitration to some other officer. When the language of Clause 40 itself is directory and does not show that if the Chairman refuses to act as an arbitrator, the arbitration clause will stand frustrated, this objection being raised after end of arbitration proceedings and delivery of award cannot be sustained. The respondent could have raised the objection before the arbitrator and without prejudice to its rights could have continued to participate in the proceedings. However, it never raised such objection and, therefore, in the present circumstances, we hold that by participation in the proceedings, the objection to jurisdiction stands waived in the present matter. In any case, there is no substance in that objection as it cannot and does not go to the root of matter. It is not the case of lack of inherent jurisdiction at all.
We, therefore, conclude that lack of jurisdiction or invalid appointment of the arbitrator can be the ground for setting aside of the award. However appointment of Shri Saraswati as Arbitrator is not void and in any case, here, have waived their objection in this respect by their unqualified participation in Arbitration proceedings before him.
The order of Chairman of Appellant Authority expressly states that as the claim exceeds Rs. 50,000/-, arbitrator has to record the reasons for his award. Advocate Kakodkar states that adequate reasons are already on record and this Court can not examine sufficiency thereof. In the alternative, he points out that the agreement dated 30/9/1993 does not cast any such obligation on arbitrator and hence, Respondents can not assail the award on that ground. He has also taken us through the entire award to point out how due application of mind is borne out from record. Advocate Nadkarni on the other hand stated the arbitrator got the jurisdiction in the mode and manner as given in appointment and the Appellants can not challenge their own act or back out of it after the proceedings were completed by their employee arbitrator.
In 1996(1) G L.T. 95 Vithoba U. Bagali and Ors. v. The Director of Education and Anr., relied upon by Senior Advocate Nadkarni,one Naik, Asst. Director had signed approval orders of teaching & non-teaching staff as Director and department had refused to release their salary on the ground that Naik had no authority of Director to do so. After considering the precedents on the point, the Division Bench of this Court held that a person dealing with government department is entitled to rely on authority which such department assumes and he can not and is not expected to know the internally drawn limits of their authority and he cannot be made to suffer if department exceeds it. In Assistant Commissioner of Commercial Taxes (Asst.) Dharwar and Others Vs. Dharmendra Trading Company and Others, Hon''ble Apex Court holds that an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State cannot say that a concession granted by the State itself was beyond the powers of the State and the State itself cannot say so either. In Raipur Development Authority Vs. M/s. Chokhamal Contractors etc. etc., Hon''ble Apex Court states that in cases where reasons are required, it is open to the parties to the dispute to introduce a term either in the arbitration agreement or in the deed of submission requiring the arbitrators to give reasons in support of the awards. When the parties to the dispute insist upon reasons being given, the arbitrator is, under an obligation to give reasons. This law is reiterated in Tamil Nadu Electricity Board Vs. M/s. Bridge Tunnel Constructions and others, Division Bench in AIR 1987 Delhi 134 "College of Vocational Studies v. S.S. Jaitely" follows this law only. Thus, here when parties proceeded for arbitration, they were knowing that the arbitrator has to give reasons and this impression or requirement was never protested by the Appellants. The arbitrator himself was aware of this demand of his employer as according to employer, the stakes were high. Arbitrator does not say that as there was no such requirement in agreement, he was not under obligation to record reasons. In fact he has attempted to assign some reasons as per his wisdom. The Appellants never challenged this grant of reasons by him. The plea is being taken by Appellants only to defeat the effort of Respondent to point out legal misconduct by trying to capitalize on this obligation imposed by Appellant themselves. It is obvious that such obligation put while appointing the arbitrator cannot be assailed as superfluous by the Appellants after he delivers the Award and they cannot turn back from their own condition merely because they find it inconvenient. It is obvious that arbitrator was duty bound to give reasons in support of his award.
Advocate Kakodkar has, by inviting attention to the award, urged that each claim has been systematically looked into by the arbitrator who gave parties every due opportunity even after the matter was closed and there is no argument of breach of principles of natural justice. We are not very impressed by this line because Respondent is attempting to demonstrate absence of reasons. It is true that claimants submitted all claims mentioned as claim No. 2 to 5 by arbitrator on ground of non-availability of license to sell liquor and construction of new international airport. It has been rightly observed that it was the responsibility of Respondent to procure requisite licence therefore and denial of any compensation cannot be said to be perverse. Similarly, arbitrator has found that Respondent was aware before hand of the proposed construction activity. This finding is not stated to be perverse. The arbitrator has found that the Airport Authority did not violate any of the terms or conditions of the contract and Contractor i.e. present Respondent itself had violated Clause 38 of the agreement. This finding is not even assailed before us in arguments. Because of these two findings, he has rejected the claims 2 to 5. It cannot be said that the rejection is not supported by any intelligible reasons. While considering claim No. 6, he has shown his understanding of the claim as made and defence thereto. He has, though not expressly mentioned that he has accepted the defence that investments and expenses incurred were preparatory to business and not part of contract, but then from the words-"therefore" used by him, it is more than clear. His application of mind to claim No. 7 reveals similar treatment and further he has also stated that after considering available records and all aspects, he did not find any merit in the matter. His consideration of claim No. 8 is in same manner and words used by him that "In the light of above circumstances, the aforesaid claim is not admissible" again show the acceptance of defence of present Appellants by him. Claim No. 9 is about costs of arbitration and he records that it was beyond scope of arbitration before him. While considering counterclaim No. 1 of Rs. 56,70,993.28 towards amount of licence fee and 18% interest on it, though it appears that arbitrator found substance in the stand of claimant that concessions given to him were not commensurate with extent of loss of business, he also recorded that competent authority granted him 40% concession without specifying the period looked into by it. After looking into the period during which the construction was going on and/or sale of beer/IMFL was not permitted, he has given break-up of such periods and apportioned the concession proportionately. Again this break-up or norm used therefore is not in challenge before us. As such,we are unable to notice any inconsistency in his approach particularly when he was considering the claim of Airport Authority against the present Respondent. Shri Saraswati as Arbitrator has given good reasons and those reasons are legally sufficient in eye of law to sustain his Award. No perversity on facts or error of law is thus demonstrated.
In M/s. Sikkim Subba Associates Vs. State of Sikkim, Hon''ble Apex Court states that an arbitrator is not a conciliator and his duty is to decide the disputes submitted to him according to the legal rights of the parties and not according to what he may consider it to be fair and reasonable. Arbitrator is not entitled to ignore the law or misapply it and cannot also act arbitrarily, irrationally, capriciously or independent of the contract. If there are two equally possible or plausible views or interpretations, it is legitimate for the Arbitrator to accept one or the other of the available interpretations. It would be difficult for the Courts to either exhaustively define the word ''misconduct'' or likewise enumerate the line of cases in which alone interference either could or could not be made. Courts of Law have a duty and obligation in order to maintain purity of standards and preserve full faith and credit as well as to inspire confidence in alternate dispute redressal method of Arbitration to interfere, when on the face of the Award it is shown to be based upon a proposition of law which is unsound or findings recorded which are absurd or so unreasonable and irrational that no reasonable or right thinking person or authority could have reasonably come to such a conclusion on the basis of the materials on record on the governing position of law. In P.R. Catering Co. and Another Vs. Oil and Natural Gas Corporation Ltd. and Others, Hon''ble Apex Court accepted that the two letters and the common register were material documents which had not been considered by the arbitrator there was a manifest error apparent on the face of the record and upheld action of High Court remitting the case to the arbitrator for a fresh decision. In Industrial Development Corporation of Orissa Ltd. Vs. Jajodia Overseas (P) Ltd., inconsistent conclusions in non-speaking Award is held as misconduct by learned Single Judge. In AIR 1987 Delhi 148 Bombay Ammonia Pvt. v. Union Of India learned Single Judge held that mishandling or serious neglect on part of arbitrator resulting in substantial miscarriage of justice is fatal to award. Hon. Apex Court in Visakhapatnam Port Trust Vs. Continental Construction Company, states that once reasons are assigned by the arbitrator, reasonableness thereof cannot be gone into. Perusal of (2008) 14 SCC 785 : Satna Stone and Lime Co. Ltd., M.P. etc. Vs. Union of India (UOI) and Another etc., again discloses the situation that the error apparent on the face of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Seth Thawardas Pherumal Vs. The Union of India (UOI), The court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. Hon''ble Apex Court states that the legal position has been crystallized in a series of judgments of this Court that the arbitrator has got ample power in giving an award. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the Court to take upon itself a task of being a judge of the evidence before the arbitrator. The Court should approve the award with the desire to support it, if that is reasonably possible rather than to destroy it, by calling it illegal. This Court has very limited jurisdiction to interfere with the reasoned Award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award. Smt. Santa Sila Devi and Another Vs. Dhirendra Nath Sen and Others, & 12 considers silence of arbitrator on certain disputed item and states that it must be taken to have been rejected. We do not find any relevance of this ratio in present facts except the approach to honour & uphold decision of representative of parties themselves. Jivarajbhai Ujamshi Sheth and Others Vs. Chintamanrao Balaji and Others, states that court can not proceed to determine whether conclusions of arbitrator are right or wrong and to attempt to probe his mental process. As already held no perversity on facts or error of law has been demonstrated to enable us to interfere with the Award. Therefore We do not find any substance in the cross objection as filed.
It is apparent that no notice of filing award could have been issued as per law when trial court itself could not have entertained such motion as time limit therefore had lapsed. With the result, there was no scope for Respondent to move for setting aside as award could not have been made the rule of court. Hence, after said finding on limitation, the further exercise is really unwarranted and merits of application to set aside award were therefore not required to be gone into. The effort to infuse life in award by pointing out proviso to Section 47 of Arbitration Act, 1940 by learned Sr. Adv. Shri Kakodkar is really misplaced because that section only envisages use of award obtained in proceedings not regulated by Arbitration Act and recourse to such procedure has to be by consent of all. The proviso of Section 47 can not be construed to defeat the scheme of Arbitration Act itself extended by its substantive part to "all arbitrations" as stipulated therein. Awards "otherwise obtained" are maintained & honoured as per desire of willing parties. This proviso does not contemplate award in dispute before us. Moreover such award "otherwise obtained" can be used in pending suit by a court as compromise or adjustment but then again with consent of parties and not against their wishes. Respondent who applied for setting it aside and raised issue of limitation is definitely not a consenting party.
Appellant had on 4th day of arguments before us while replying the limitation aspect and addressing us on merits of cross objections, vehemently urged that as records of arbitrator were not included in their paper-book of cross objections by the Respondent , Appellant was handicapped in effectively pointing out to us the application of mind by arbitrator as documents were not in paper-book. Respondent contended that the belated objection was by way of afterthought and an effort to delay. As hearing was nearing end we assured both the learned Senior Advocates that their objection will be appropriately dealt with. In view of our discussion above, we, in present facts, leave the debate with its mention only.
In view of this discussion the Appeal as also Cross objection fails and are, accordingly, dismissed with no order as to costs.