H.P. State Electricity Board vs M/s. R.J. Shah and Coporation Limited

V.P. Gupta, J.—The Himachal Pradesh State Electricity Board (hereinafter the Board) has preferred this appeal against the order dated 4-4-1979 passed by a learned single Judge (C.R. Thakur, J.), in Civil Suit No. 17 of 1977.

The facts in brief are that in the year 1967 tenders were invited by the President of India in connection with the construction of the various works on Giri Hydel Electric Project in District Sirmaur, Himachal Pradesh. The estimated cost of these works was Rs. 467 lakhs.

M/s R.J. Shah and Company Ltd. (hereinafter the contractor) submitted their tenders on the requisite forms and the same were accepted by the Board. An agreement was executed between the parties. The contract was for Rs. 5,04,15,107/- and the work was to commence on 2-12-1967. It was to be completed within a period of three years and 15 days that is, upto 16th December, 1970.

It is an admitted case of the parties that the work could not be completed within the stipulated period of three years with the result that the period was extended from three years to eleven years. The work was finally comoleted in February, 1978.

In December, 1967, Himachal Pradesh was a Union territory and the Chief Engineer, Multi-Purpose Project and Power Department, Himachal Pradesh, had called for the tenders on behalf of the President. In January, 1971, Himachal Pradesh attained Statehood and a corrigendum was issued to substitute the State in place of the President. Thereafter the Appellant (Board) was constituted and the Board became the successor of the Multi-Purpose Project and Power department (hereinafter referred to as the Power department). All assets and liabilities of the Power department were transferred to the Board.

According to clause 25 of the contract agreement, the disputes between the parties relating to the contract were to be referred to the sole arbitration of a person to be appointed by the Chief Engineer. This clause reads as follows:

CLAUSE-25. Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, specifications, estimates, instructions, orders or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Chief Engineer, H.P. Deptt. of M.P.P. & Power in charge of the work at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant, that he had to deal with the matters to which the contract relates and that in the course of his duties as Government servant he had expressed views on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally referred being transferred of vacating his office or being unable to act for any reason, the Chief Engineer, H.P. Deptt. of M.P.P. & Power at the time of such transfer, vacation of office or inability to act, shall appoint Anr. person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by the Chief Engineer, Deptt. of M.P.P. & Power (H.P.) should act as arbitrator and, if for any reason, that is not possible, the matter is not to be referred to arbitration at all.

Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause. The arbitrator(s) may from time to time with the consent of the parties enhance the time for making and publishing of award.

Two arbitrations took place in 1970 and 1972 and the third arbitration reference was made in May, 1975. This third arbitration reference was made to the arbitrators because the contractor claimed payments at enhanced rates. The contractor was claiming enhancsment for the reason that the work executed by the contractor had exceeded the contract value, that is, total value of the work, while the Board disputed this claim on the ground that the deviation limit was applicable to individual items and not on the total value of the work done. As disputes arose betwesn the parties, therefore, it was decided to refer the disputes to arbitration. The Board informed the Chief Engineer (Projects) vide Annexure II dated 10-3-1975 that in a meeting of the Board held with Mr. R.J. Shah, the following decision was taken:

The matter regarding appointment of arbitrator was discussed and it was decided as under:

There will be two arbitrators one Sh. P.M. Mane nominated by M/s R.J. Shah & Co. and the other to be nominated by the Chief Engineer (Projects). There will be an umpire to be appointed by both the above arbitrators.

The contractor was informed about this decision. The contractor confirmed the nomination of Shri P.M. Mane as an arbitrator on the points of dispute already in imated vide letters dated 14-1-1975,11-2-1975 and 11-2-1975. It was also mentioned that further matters of dispute be referred to this arbitration if the disputes are specified during arbitration proceedings.

The Board also informed the contractor about their decision to nominate Shri Jagman Singh as an arbitrator on their behalf for the various points of dispute that may be mutually agreed to refer to arbitration.

The contractor, therefore, by a letter dated 3-4-1975 (Annexure 1-K) informed the Board that revised schedule of rates and escalation clauses were being furnished to facilitate the arbitration work. The contractor also mentioned that they would be submitting their claim bill periodically for assessment of dues and they further stated that:

We have aJready submitted to ycu the rate analysis for the individual items that have exceeded the 20% deviation limit. Our submission of the revised rates is based on the same conditions and as such we do not think it necessary to submit the rate analysis for all the items.

The present dispute between the paries relates to the third arbitration reference of 1975 for which the award was given by S/Shri Jagman Singh and P.M. Mane (arbitrators) on 20-11-1976. Both the arbitrators had agreed that Shri N.G.K. Murti be appointed as an umpire and Shri Murti agreed to function as such.

This award dated 20-11-1976 was filed in this Court by the arbitrators for being made the rule of the Court and the application was registered as C.S. No. 17 of 1977.

Notices of the filing of the award were issued to the parties so that they could file their objections (if any) to the award.

Objections (O.M.P. No. 153 of 1977) were filed u/s 30 of the Arbitration Act on behalf of the Board and reply to the objections was filed by the contractor. Aftsr a rejoinder filed on behalf of the Board, the following issues were framed on 25-2-1978 :

Wether the award is incomplete ? O.P. Objector.

Whether the award is in excess of the jurisdiction? If so, what is its effect ? O.P. Objector.

Whether the award is otherwise also invalid and liable to be set aside ? O.P. Objector.

Whether the award suffers from legal misconduct on the part of the arbitrators ? If so, what is its effects O.P. Objector.

The contractor thereafter filed an application (O.M.P. No. 35 of 1978) with a prayer that an additional issue be framed with the result that the following issue was framed on 24-4-1978:

Whether or not the objection petition of the Respondent is legally maintainable ? (OP Parties).

The parties produced their evidence on the various issues and finally the learned single Judge (C.R. Thakur, J.) vide his judgment dated 4-4-1979 held that the award did not suffer from any error apparent on the record, except with regard to the tariff on the electricity awarded by the arbitrators in favour of the contractor. It was held that the arbitrators had the jurisdiction and the award did not suffer from any legal misconduct or was not otherwise invalid. The arbitrators were empowered to allow interest and also money claim and that they were also competent to club together items Nos. 1, 2 and 4.

Therefore, it was held that except to the extent of the award in respect of electricity tariff which was severable, the award could not be set aside in respect of other disputes. The objections, except to the extent of the award in respect of levy of tariff which was upheld, were accordingly dismissed.

A decree in terms of the award was passed in favour of the contractor for Rs. 47,00,000/- in respect of dispute Nos. 1, 2 and 4. In respect of dispute No. 5, the rates payable should be those as given by the arbitrators under that dispute. In respect of dispute No. 6 the rates for excavation would be Rs. 130 and not Rs. 107.90. The contractor was held entitled to interest at 9% per annum from the date of ths award till the date of payment. The claim in rsspect of item No. 7 was disallowed and to that extent the award was modifi3d. The Board was also burd3ned with proportion?te costs of litigation for the claim decreed.

The Board feeling dissatisfied from the judgment of the learned smgle Judge has filed this appeal.

We ha ve hea rd the learned Counsel for the pa rties.

The learned Counsel for the Appellant (Board) contended that the arbitrators had misconducted themselves in not answering the specific questions of law referred to them relating to the tenability of the claim No. 1 in context of the various terms of the contract. The arbitrators had to interpret the various terms of the contract in order to arrive at the conclusion as to whether or not the claimants were entitled to any revision of rates. The arbitrators had to identify the quantities with respect to individual items of work on which revised rates were to be made applicable. The deviation limit and ascertainment of various quantities had to be considered for the decision of the disputes. It was contended that the clubbing of the various issues was not possible and the award of the arbitrators was unintelligible and vague. The arbitrators had infact not answered the reference. It was also contended that future interest could not be allowed and the arbitrators had no jurisdiction to allow such interest and disputes Nos. 1, 2 and 4 were not inter-linked. By referring to the pleadings filed before the learned single Judge, the learned Counsel for the Board contended that the reference was contained in para 12 of the statement of claims filed with letter dated 19-6-1975 and the letters dated 24-4-1975 and 4-6-1975 did not contain the reference made to the arbitrators.

The learned Counsel for the Respondent (contractor) contended that no specific questions of law were referred to the arbitrators. If a question of law had arisen in a money claim incidently or in an ancillary manner then the arbitrators were at liberty to decide such questions of law for deciding the money claim. Disputes Nos. 1, 2 and 4 were inter-linked because they related to the deviation limit and were in fact money claims and a consolidated award could be given for these disputes. The arbitrators were at liberty to club disputes Nos. 1, 2 and 4 and also to give separate findings on disputes Nos. 3 and 6. There was no misconduct on the part of the arbitrators and the reference had been answered. The award was clear and understandable.

The learned Counsel also contended that the arbitrators were entitled to interpret the reference and find out the intention of the parties. They had the power and jurisdiction to award future interest. The question of awarding of future interest was in the discretion of the arbitrators and they could award such interest u/s 34 CPC No specific reference was required to be made for the purpose of awarding interest and in the present case "all matters in difference" had been referred to the arbitr?tors and, therefore, it was the discretion of the arbitrators to award or not to award the future intersst.

We have considered the contentions of the parties and hav3 also gone through the records.

According to the Board the contractor preferred the disputes to the arbitrators with respect to seven items only, as have been enumerated in para 12 of the statement of claims filed on behalf of the contractor before the arbitrators on 19-6-1975 and a specific question of law was referred to the arbitrators relating to the tenability of the claim. The contractor claimed that the reference was contained in letter dated 24-4-1975 appended as Annexure V with the statement of claims and the letter dated 4-6-1975 and no specific question of law was referred to the arbitrators.

Now para 12 of the statement of claims filed on behalf of the contractor vide letter dated 19-6-1975, is reproduced below:

The claimants crave the indulgence of the Hon. Arbitrators and submit the undermentioned disputes which are briefly described hereunder for their consideration, decision and order.

LIST OF DISPUTES (POINTS OF REFERENCE)

Revision of rates of all the items of work due to the increase in the value of the total contract beyond the Deviation Limit. It is for the decision of the Hon. Arbitrators whether:

(a) the claim is tenable under the terms of contract;

(b) and if so, what are the rates to be paid for the

various items of work.

The determination of the quantity to be paid at the deviated rates fixed where quantity of individual items of work has exceeded the deviation limit, as per clause 12-A of the contract.

Determination of the items of work that are to be classified under ''Foundation Items'' and the determination of the applicable deviation limit in the case of items which are grouped together with Foundation items.

Determination of the quantities to be considered for the purposes of deviation limit, where original item of work is executed along with allied items of work for which rate is derived from tender documents.

Determination of the rates for the following items of work on which agreement could not be reached with the Respondents.

These rates have to be determined for:

(a) The period prior to the date on which the whole value of the contract exceeded the deviation limit.

(b) The rates payable after the date on which the whole value of the contract exceeded the Deviation limit.

(i) Rate for structural steel work-item No. 6 of the Schedule 5.2.

(ii) Rate for providing and fixing steel reinforcement for RCC lining in Surge Shaft. Item No. 14 of Schedule 5.2.

Determination of the rate to be paid for the execu tion of the Tanlog access tunnel on analogy of the refixing of the ra tes for the main tunnel under second Arbitration. 7. Reimbursement of extra electrical charges recovered by the Respondents due to the change in the tariff rates, made by them.

In para 31 of the statement of claims filed on behalf of the Board it is again stated:

The details of these claims are given in Letter No. GCL-26/547, dated 24th April, 1975 addressed to the Chief Engineer (Projects). The details are given in Schedule No. 1 attached to that letter. The letter is included as Annexure V. However, for case of reference, this schedule is also enclosed as Annexure 2-A.

In para 11 of the statement of claims is stated:

The contract agreement provide for the disputes to be settled by reference to the Arbitration of the Sole Arbitrator. The first Arbitration around April, 1970 and the second Arbitration around November, 1972 were so referred and decided by reference to the Sole Arbitrator. However, when the matters under further disputes were to be referred to Arbitration, the Respondents and the claimants, unfortunately, could not agree to the selection of Sole Arbitrator to decide the disputes. The Claimants then suggested that the reference to Arbitration could be made to Two Arbitrators, one nominated by each party and the Arbitrators appointing an Umpire as provided for in the Indian Arbitration Act, under their letter No. R/317/ 75, dated 7tb Feb., 75, (Annexure I). The Respondents have accspted this proposal vide their letter No. HPSEB/ 23-5/74-W-l 1613-14 dated 10th March, 75 (Annsxure II). In consonance with this agreement the claimants intimated to the Respondents vide letter No.DSL-1/74-75/GCL-26, dated 15th March, 75 (Annexurs III), nominating Shri P.M. Mane, B.E.,D.J.C, FIE, Consulting Engineer, as one of the Arbitrators. The Respondents vide their letier No.SEP&D (C) 17-156/ 75- 6490-93, dated 21-3-1975, intimated to the claimants that they have nominated Shri Jagman Singh, Chief Engineer, Minor Irrigation and Tubewells Corporation, Chandigarh, as the other Arbitrator (Annexure IV). The Claimants in their letter No. GCL-26/547/24th April, 1975, have submitted to the Chief Engineer a list of items under dispute. They have also indicated that other items would be added for reference to Arbitration. This is given as Annexure V.

The letter, dated 24-4-1975 (Annexure V) appended with the statement of claims reads as follows :

Our Ref: No. GCL-26/547 24th April 1975.

The Chief ngineer (Projects) H.P. State Elecy. Board, Dogra Lodge, Simla.

Dear Sir,

Sub: Arbitration

In continuation of our letter No. DSL-1/74/75, dated 15th March, 1975 we restate the items under disputes which are being referred to arbitration:

(1) Dispute regarding our claims for revision of rates of all items of the entire contract to the market rates from the date of 20% deviation on the amount of the original contract. In this respect we refer to our detailed rates as submitted by your letter No. GCL-48/468 dated 3rd April, 1975 addressed to the Superintending Engineer and copy to your goodselves.

(2) Disputes regarding our claims on payable quantity on the items where deviation has already been sanctioned, i.e. quantityin excess of 2% to 20% as per our claim under Clause 12(VI) DA. Statement of these items, quantities and amount is attached as schedule No. 1.

(3) Disputes regarding the deviation quantities on approved rates due to arbitrary allocation of quantities pertaining to foundation work and non-foundation work. The statement of items with quantities involved under this group is as per schedule No, 2.

(4) Items of disputes where deviation limit is not accepted by the department as the quantities of derived items of work is not taken into consideration and where deviation is accepted derived items are not combined for calculation of quantity beyond deviation limit. The details of quantities are given in schedule No. 3 attached.

(5) Items of disputes on which approved rates are not acceptable to us as per schedule No. 4.

(6) Rates for excavation of Tanlog Access Tunnel as per our letter No. DSL-1/1/75 dated 1-1-1975.

And any other item that may be referred to this arbitration by mutual agreement.

We shall thank you to confirm the above list to submit the same to Arbitrators jointly.

Thanking you,

Yours faithfully,

for RJ. SHAH & CO. LTD.

Sd/-(S.M.SHAH)

WORKS MANAGER.

Encl: As above. C.C. to:

The Superintending Engineer,

Giri Construction Circle,

HP State Electricity Board,

Shaktinagar, Nahan, HP.

The letter, dated 4-6-1975, was written by the Board to the arbitrators and it reads as follows: R.J. SHAH & CO. LTD. ENGINEERS & CONTRACTORS

Registered Office,

Mahul Road, Antope Hill,

BOMBAY-400037.

Our Ref: No. R/1287/75

4th June, 75.

Shri P.M. Mane,

Consulting Engineer,

Ramalayam

Peddar Road,

Bomba y-26.

Arbitrator.

Shri Jagman Singh,

Chief Engineer,

Minor Irrigation & Tube Wells Corpn.

Chandigarh.

Arbitrator.

Dear Sir,

Sub: In the matter of Arbitration: Construction of Giri Hydel Project.

We are in due receipt of your letter dated 30th May, 1975.

For the sake of clarification, we are enclosing herewith copy of letter No. GCL-26/547 dated 24th April, 1975 addressed to the Chief Engineer (Projects), H.P. State Elecy. Board, Simla enumerating the items under dispute which are being referred to Arbitration.

Since then, we had discussion with the Chief Engineer for confirming the list of items under dispute which have been referred to Arbitration. They have agreed to confirm the list which is now being sent.

In the letter that was addressed to the Chief Engineer, regarding dispute on item No. 1, we had not enclosed copy of our letter No. GCL-48/468 dated 3rd April, 1975 which was eaxlier sent to them. The copy of the same is enclosed herewith for the sake of clarification. In the statement attached to this letter, the revised rates are mentioned. The amount claimed under this claim can be worked out upto any specific month, if required by Arbitrators.

As intimated by your gocdself we will be submitting our statement of claims in sufficient detail within one month''s time as stipulated by you in your above letter.

Thanking you in anticipation.

Yours faithfully,

for R.J. SHAH & CO. LTD.

Sd/-

Managing Director.

Ends: Two

C.C. to The Chief Engineer (Projects)

Himachal Pradesh State Electricity Board,

Kennedy House,

Simla-4.

C.C. to The Superintending Engineer, Giri Construction Circle, Himachal Pradesh State Electricity Board, Shaktinagar, Nahan, H.P.

According to the letters dated 24-4-1975 and 4-6-1975 (reproduced above) the dispute No. 1 relates to the claim for the revision of rates. These rates were mentioned in the contractor''s letter dated 3-4-1975 regarding which a reference was made in the letter dated 4-6-1975. A perusal of the letter dated 3-4-1975 (Annexure 1-K) shows that the revised schedule of rates was submitted by the contractor along with an escalation clause which the contractor was claiming on the items of work executed so far and to the execution for completion of the contract work.

A reply was filed on behalf of the Board to the statement of claims filed on behalf of the contractor. In ,the last portion of para 11 of the statement of claims which has already been reproduced, the contractor made a reference to the letter dated 24-4-1975 and to this para the reply of the Board is that "Para 11 of the statement of claims is substantially correct."

The arbitrators while entering upon the reference had to find out the real disputes between the parties which were to be decided by them. The arbitraters are empowered to obtain a clear statement of disputes, if the same are not already defined.

In the present case through a letter dated 4-6-1975 (reproduced above), the contractor informed the arbitrators about the items of dispute which were being referred to them and for a clarification of the facts, the contractor enclosed a copy of the letter dated 24-4-1975. It was also stated by the contractor that the Board had agreed to get all these disputes referred to arbitration. A copy of the letter dated 3-4-1975 was also sent to the arbitrators in which particulars of the claims in respect of dispute No. 1 were sent and it was mentioned thaf the claim in respect of dispute No. 1 could be worked out.

In the statement of claims given by the contractor with his letter dated 19-6-1975, disputes Nos. 1, 2 and 4 mentioned in para 12 in fact relate to the payment of money which the contractor was claiming. The main relief asked is for the payment of excess money for the disputes Nos. 1, 2 and 4.

This fact is also clear from paras 28, 35 and 50 of the statement of claims given with the letter dated 19-6-1975. Para 28 relates to dispute No. 1 mentioned in para 12 of the statement of claims. In this para the contractor has requested the arbitrators to order the Board to pay for all works that is, done and is to be done in excess of the deviation limit of 20% at the ruling market rate as claimed by the contractor in his letter No. GCL-48/468, dated 3-4-1975, or at any other reasonable market rate which the arbitrators may fix in this regard. The various other averments for interpreting the basic clauses of the main agreement are referred to in the other paras of the statement of claims for the purposes of highlighting the fact that the contractor is entitled to an enhanced payment.

Para 35 of the statement of claims relates to dispute No. 2 mentioned in para 12 of the statement of claims. In this para the contractor has requested the arbitrators to order the Board to pay for all quantities inexcess of 2% or 10% as maybe applicable as decided by the arbitrators of the original contract quantities at the market rates as have been mutually agreed in some cases or at the rate as may be now fixed by the arbitrators as requested under claim Nos. 1 and 5. The averments in the other paras of the statement of claims are only meant to persuade the arbitrators to allow the contractor the enhanced payment.

Para No. 50 of the statement of claims relates to dispute No. 4. In this para the contractor has requested the arbitrators to order the Board to club together the quantities of main concrete and the back-fill concrete while determining the rate payable and the quantity payable beyond the deviation limit or alternatively to order the Board to restrict the quantities payable at the derived rates for derived items to only 2% of the main item and to pay for the extra quantities of such derived items at the market rates as determined under the provisions of clause 12-A. This prayer for dispute No. 4 also relates to the fact that the contractor has claimed an enhanced payment for these items of works.

The Board never took the objection that any question of law was referred to the arbitrators for decision. In reply to para 11 of the objections u/s 30 of the Arbitration Act, the Board only stated that matters of difference were correctly summarised by the arbitrators in the award itself. From the summary of the dispute given in the award it is abundantly clear that no specific question of law was referred to the decision of the arbitrators. In the reply filed by the Board to the objections, no averment was made by the Board that a specific question of law was referred to the arbitrators for decision.

The cumulative effect of the various averments made in the letters, dated 24-4-1975 and 4-6-1975 and para No. 12 of the statement of claims sent with the letter dated 19-6-1975, is that the contractor was asking for an enhanced payment with respect to the items of work mentioned in disputes Nos. 1, 2 and 4 of the statement of claims.

The Board was disputing the claim of the contractor for enhanced payment and the arbitrators were required to give a decision as to whether the contractor''s claim for any enhanced payment was tenable. The arbitrator, for adjudicating these claims of enhanced payment of the contractor which were disputed by the Board, could look into the various terms of the agreement. The question of interpreting the various terms or clauses of the agreement in fact arose in an ancillary or incidental manner. They could interpret the terms of the agreement for deciding as to whether the contractor was entitled to enhanced amount or not and if so to what extent.

The reference to the arbitrators, however, enumerated in para 12 of the statement of claims pertaining to disputes Nos. 1, 2 and 4 as well as in the letter dated 24-4-1975, clearly relates to the money claims only and the arbitrators were never asked to decide any specific question of law meaning thereby that a specific question of law was never referred to the arbitrators for arbitration.

The learned Counsel for the Board placed reliance upon Union of India (UOI) Vs. Firm J.P. Sharma and Sons, and contended that separate and distinct findings should have been given by the arbitrators on the various issues and as such the award was viliated. The dispute in Union of India (UOI) Vs. Firm J.P. Sharma and Sons, was between the Railway Administration and a Railway contractor. The railway contractor claimed certain amount from the railways for different items of work done by him. This dispute was referred to an arbitrator. The parties submitted a joint fist of issues to the arbitrator and the arbitrator awarded a consolidated sum to be paid to the contractor. The parties had specifically required the arbitrator to deal with certain disputes. After interpreting the reference which was made by the parties, the Hon''ble Judges held that the real dispute between the parties that was referred to the arbitrator was about the applicability of the correct rate for the job done by the Plaintiff-Respondent and it was further held that the arbitrator had not decided the question of the correct rate applicable to the several jobs done by the contractor. The arbitrator had failed to discharge the essential function entrusted to him by the parties. It was further held that normally it is not necessary for the arbitrator to deal with each claim or matter separately and he need not give any reason for his decision in relation thereto, but if the reference specifically requires him to deal with certain disputes and if he fails to give his decision on those specific points or disputes, then the award stands vitiated. This judgment is clearly distinguishable and was delivered in the facts and circumstances of that case. In the present case, the disputes between the parties which related to money claims only were referred to the arbitrators and the arbitrators were not required to give findings on separate issues specifically.

Another judgment relied upon by the learned Counsel for the Board was Lingam Dasaradharamayya Vs. Kanuri Raja Rao and Others, In this case also six specific, distinct and separate matters had been referred to an arbitrator for giving his findings. The arbitrator failed to give findings on three of the matters and left these matters undecided. In such circumstances, the Court found that it was the bounden duty of the arbitrator to have given definite findings on all the matters which had been referred to him and on his failure to do so the award could not be sustained. This judgment is also distinguishable and has no applicability in the facts and circumstances of this case.

The next two judgments The Indian Minerals Co. Vs. The Northern India Lime Marketing Association, and G.S. Atwal and Co. (GUA) Vs. Union of India and Others, , relied upon by the learned Counsel for the Beard are also distinguishable. In The Indian Minerals Co. Vs. The Northern India Lime Marketing Association, the Court fr?med specific issues and referred the same for determination by an arbitrator. The arbitrator, however, refused to recognise the points formulated by the Court and proceeded to frame its own issues. In these circumstances, the award was held to be invalid.

In G.S. Atwal and Co. (GUA) Vs. Union of India and Others, the arbitrator gave a decision on matters which were outside the scope of reference. Both these judgments are not applicable to the facts and circumstances of the present case.

Another judgment relied upon by the Board was Patel Engineering Co. Ltd. Vs. Indian Oil Corporation Ltd., . The facts in this judgment were that some disputes arose between the parties which were referred to arbitration and the award was sought to be challenged by the Appellant. One of the contentions of the learned Counsel for the Appellant was that a specific reference on the construction of clause 17 of the addendum to the contract (tender) was made and the contention of the Respondent was that if a specific question of law was submitted to the arbitrator and he answers it, the fact that the answer involved an erroneous decision on point of law did not make the award bad on its face so as to permit of it being set aside. Their Lordships held that it is well settled that the question of construction of any agreement, document or term of the contract is a question of law. Even in such cases, however, there is high authority both of Indian and English Courts for the view that the Courts are not powerless to interfere if it appears from the award that the arbitrator has proceeded illegally in reaching his decision, for example he has decided on evidence which is inadmissible or on principles of construction which the law does not countenance or some thing of that nature. It is further held that there are two types of cases: (1) where a specific question of law is submitted to the arbitrator, and (2) where a matter or matters in which a question of law becomes material are submitted. It is held that in the former the Court cannot, but in the latter it can and will interfere if an error of law appears on the face of the award. It was further held that a Court dealing with an award does not sit as a Court of appeal and merely because a different conclusion is more proper the Court will not set aside the award. As a necessary consequence, if the arbitrator gives a lump sum award without recording bis reasons and without indicating the principles of law on which he has proceeded, the award is not vitiated on that account. But where the arbitrator in his award incorporated a clause of a contract and has misunderstood the provisions of the clause, there was an error in tew apparent on the face of the award and the Court could interfere with it. Similarly, where the arbitrator invoked certain legal principles in giving the award, the Court is entitled to examine the legality of invoking those principles.

The ''quantum meruif principle was invoked in the case of Patel Engineering Co. Ltd. Vs. Indian Oil Corporation Ltd., , by the arbitrator but the Court interfered on the ground that this principle was not applicable because this principle of ''quantum meruif is based on a quasi-contract and arises in a case of an implied contract and not on any express agreement. Where a party to a contract has wholly or partially performed his obligation he may neglect the contract and sue upon ''quantum meruif. But while the contract has not been neglected or repudiated and a claim is based upon the terms of the contract, the principle of ''quantum meruif cannot be invoked and the award which was illegal on the face of it was invalid. This judgment is, therefore, distinguishable and was given in the facts and circumstances of that case.

Another judgment relied upon was Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., It is held in this judgment that if there is an error of law apparent on the face of the award then the award is liable to be set aside and similarly if in a document incorporated with the award there is found to be some legal proposition which is the basis of the av/ard and which is erroneous then too the award is liable to be set aside.

There is no dispute about the proposition of law that if there is an erroneous decision on the question of law and this error of lawis apparent ontheface of theaward or in a document incorporated in the award then the award is liable to be set aside by the Court.

It may be mentioned that the contractor was only interested in getting more money and the Board disputed this claim of the contractor. The intention of the parties was to get an adjudication as to whether the money claim of the contractor was to be allowed or not to be allowed and if allowed then to what extent. The arbitrators were entitled to find out the essence of the dispute between the parties and the real relief claimed by them.

In Juggilal Kamlapat Vs. N.V. Internationale Crediet-En-Handels Vereeninging ''Rotterdam'', the Bengal Chamber of Commerce was constituted as a Tribunal of arbitration for adjudicating upon the disputes. It gave an award adjudging that the Respondents were entitled to their claim and directing the Petitioners to pay to the Respondents Rs. 14,08,725/- in full settlement of the claim as also the interest and costs. The prayer of the Respondents in their written statement was in the following words:

We await your decision whether we are entitled to claim from sellers the difference between the contract price and the price at which we have been obliged to cover and also costs and interest for having had to keep letters of credit available.

It was contended that this relief coutd not be granted because the Respondents in their prayer had only asked for a declaration of the rights and that no award for payment of difference in price could be given as this was not asked for. The learned Judge, however, held:

The wording of the prayer is no doubt unhappy but the arbitrators, were entitled to look at the substance of the matter and to find out the real relief asked for. Even a Court of law is entitled to find out what relief is really prayed for and to grant it although the language used by the claimant is imperfect and even to grant a relief not specifically asked for where the justice of the case so require.

After these observations, the learned Judge held that the arbitrator had the jurisdiction to award payment of the difference in price.

It is also an established law that a;n arbitrator'' is not bound to make a separate and distinct finding on each issue and he is at liberty to make his award on the whole case.

In Pannalal Paul and Others Vs. Sm. Padmabati Paul and Others, a reference was made to an arbitrator where a suit had been filed in the Court for dissolution of partnerships and accounts of two partnership firms and for realisation and distribution of partnership assets and properties. Prayer for appointment of a receiver had also been made. The arbitrator gave a final award- holding that on the final taking of the accounts the Appellants were liable to pay to the Respondent a sum of Rs. 12,255/-. The arbitrators although could give separate and distinct findings but :hey fully and finally determined the rights of the parties by giving a consolidated award in the shape of money. It was held that such an award was quite valid and the arbitrator had not misconducted himself in not answering issues Nos. 4, 6, 7, 11, 13, 17 and 19 relating to valuation of the assets and liabilities of the firm.

Similarly, in State of Orissa Vs. P.C. Chanda, the arbitrators determined the amount without giving any reasons in regard to the controversy between the parties regarding the interpretation of the word ''omission'' in Clause 7 of the conditions of the contract. The arbitrators had also not given the details of the calculations on the basis of which they had arrived at the figure of the awarded amount.

Such an award was upheld and was not vitiated. It was held that the essence of the dispute related to the net amount payable to the contractor and that had been accurately and finally decided by the arbitrator. The omission of the arbitrator to give details of calculations or to give his findings as regards the rival contentions of the parties in respect of the interpretation of the conditions of the contract did not invalidate the award. Matters such as interpretation of the conditions of contract and the rival contentions of the parties as regards other items in the claim of the contrac or were not independent disputes which required separate adjudication by the arbitrator but they were all ancillary to the main dispute about the sum payable. Since the same had been answered, the other matters merely became reasons for arriving the same.

In view of the aforesaid discussion and in the facts and circumstances of the present case, it cannot be held that a question of law was referred to the arbitrators for a decision. The question of interpretation of the various clauses of the contract agreement could be decided by the arbitrators and this question of interpretation arose in an ancillary or incidental manner for deciding the main question which related to the money claims made by the contractor. The only reference made to the arbitrators was as to whether the contractor was entitled to claim any enhanced payment and if so how much. The question of the interpretation of the various clauses of the contract was not directly referred to the arbitration s for a decision.

A perusal of the award reveals that the arbitrators have awarded a sum of rupees 47 lakhs in respect of disputes Nos. 1, 2 and 4 in addition to payment already made for the work done upto 30-6-1975 and for the workdene after 30-6-1975 the arbitrators have given the revised rates for 22 items. For the remaining items the arbitrators have held that the contractor would be paid at the rate as already mutually agreed or to be agreed. As far as 22 items are concerned, the rates for which have been fixed by the arbitrators, the award is clear and conclusive. For the remaining items the award other-wise is clear and intelligible because the same had been implemented by making running account bills and the final bills. It may be mentioned that the work is already completed and the Board did not find any difficulty in paying the revised rates in respect of the various items till the actual completion of the work.

This position is clarified by some facts which may be mentioned. In schedule 5.1, 5.2, 5.3 and 5.4, of the contract agreement there were 108 items. In schedule 5.1 there were only 27 items out of which the contractor claimed a revision of rates for 26 items. Some of the 26 items were not mentioned in the schedule 5.1. The contractor was allowed rates by the arbitrators beyond 30-6-1975 for some items and for some other items mutually agreed rates were to be paid.

In schedule 5.2 there were 22 items and revised rates were allowed for 6 items only. Some items were not to be operated after 30-6-1975 and mutually agreed rates were allowed for 4 items.

Similar are the facts for schedule No. 5.3 and 5.4.

In C.S. No. 17 of 1977, (Objections u/s 30 of the Arbitration Act), the contractor filed a reply to the objection petition u/s 30 of the Indian Arbitration Act on 28-11-1977. In Para 14 of the reply, the contractor has specifically mentioned that "for the work done or to be done after 30-6-1975 the arbitrators have mentioned in the award the rates payable to the contractor for 22 items only. For the rest of the items the arbitrators have mentioned in the award that the contractor shall be paid at the rate as already mutually agreed or to be agreed. This was probably because a number of other items of work were not to be operated at all. In case of a few items the revised rates were already mutually agreed by the parties after the reference. In case of some other items it was possible to derive rates from the rates of settled 22 items. Thus about the rest of the items it would not have been practicable at that stage to fix market rates for one of finalised design or actual execution etc. In case, however, there are any future disputes about the revised rates of a few items, Anr. arbitration between the parties is not barred by law. A rejoinder was filed by the Board on 20-2-1978 but the Board did not specifically deny these averments. Shri M.C. Tiwari (PW 3), Superintending Engineer of the Board has also stated in the following words:

In the award the arbitrators have given a lump sum award of rupees 47 lakhs in respect of the disputes Nos. 1, 2 and 4. The arbitrators have given revised rates in respect of 22 items under claim Nos. 1, 2 and 4. These rates pertain to different schedules of the bill of quantity in the contract. In so far as the schedule 5.1 is concerned the rates of 8 items have been given in the award. There were 27 items in schedule 5.1 attached to the agreement. It is not true that in the schedule 5.1 there were several items which were not to be operated at all. The work in respect of items 1, 2, 3 and 4 were completed by June, 1976. It is not correct to suggest that item No. 6 of schedule 5.1 was not to be operated. I am not in a position to say if item 5 was to be operated or not. In respect of item 8 also my reply is the same. The same is my reply in respect of items 21, 22, 24, 26 and 27. There was no dispute with regard to rates of items 9 and 22 of the schedule 5.1 and the contractor was paid the agreed rates.

It is correct that there are 22 items in schedule 5.2. 1 am not in a position to say anything whether the items 1, 4, 9, 10, 11, 13, 15, 16, 17, 20 and 21 were to be operated or not. With regard to items 8, 18, 19 and 22, I am not in a position to say even after looking the Court record, whether agreed rates were to be paid to the contractor and there was no dispute with regard to the same. Similar is my reply to items contained in schedules 5.3 and 5.4.

Shri M.C. Tiwari was holding a responsible post of Superintending Engineer in the Board and was representing the Board on all hearings before the arbitrators. His statement shows that the award made by the arbitrators was an understandable and intelligible award upon which both the parties could effectively work and calculate the various rates for the various items of work done by the contractor.

Hence for this reason it cannot be said that the arbitrators had misconducted themselves or that the award of the arbitrators is vague and unintelligible.

It has already been stated, that the arbitrators have determined all the three claims Nos. 1, 2 and 4 of the contractor in a final manner by awarding a consolidated amount. For claim No. l the arbitrators have also determined the revised rates for the items executed after 30-6-1975. In these circumstances, the contention of the Board that the arbitrators have not decided claim No. 1 expressly or impliedly cannot be accepted.

The contention of the Board that the arbitrators had not determined the quantities payable at the deviated rates, whether quantities of individual item of work exceeded the deviation limit cannot be accepted. It was not necessary for the arbitrators to give findings on each and every dispute which arose in an ancillary manner in determining the main dispute which was in fact a money claim. If disputes Nos. 1, 2 and 4 are taken to be money claims as has been held above, then in that case it can be presumed that all the incidental questions regarding deviation etc. were considered and decided by the arbitrators while deciding the money claims.

Similarly, the arbitrators should be deemed to have determined the quantities which question arose in an ancillary manner for deciding the main dispute which related to a money claim.

The arbitrators were not under any obligation to give separate findings with respect to the ancillary and incidental question because they have decided the main dispute which they could decide without giving any reasons.

In the present case, disputes Nos. 1,2 and 4 have been enumerated separately but all these disputes relate to revision of rates of all items of the entire contract at the market rate of 20% deviation limit on the amount of the original contract. A statement of claims with schedules etc. was also filed. It is, therefore, evident that they were in fact all money claims. If these claims were money claims then the arbitrators could quantify the amount for these claims and club all these claims together. The learned Counsel for the Board also admitted that clubbing of different issues is possible in certain cases.

The arbitrators were under no obligation to give reasons as to why they have clubbed these disputes together. It is the choice of the arbitrators to decide the matters of difference between the parties without giving any reasons.

The learned Counsel for the Board further contended that the arbitrators have misconducted themselves by not determining the items of work which are to be classified under foundation items and the applicable deviation limit in the case of the items grouped together as foundation items and the arbitrators have misconducted themselves.

The contractor raised a dispute for item No. 9 of schedule 5.1 and item No. 2 of schedule 5.3 as is enumerated under dispute No. 3. While submitting the statement of claims the contractor in para 43, prayed that a direction be given to the Board to operate the deviation clauses in respect of the said items. From the award it is evident that the arbitrators have given findings in respect of item No. 9 to the effect that the quantity as shown therein above the top surface of mud-mat concrete shall be treated as non-foundation item. The other item was to be treated as a foundation item. Thus, it cannot be said that the arbitrators have not given their findings on the matters in dispute covered under claim No. 3 and as there is no misconduct on the part of the arbitrators.

The learned Counsel for the Board also contended that the arbitrators did not answer the reference with respect to the claim regarding the rates to be paid for the execution of the Tanlog Access Tunnel. This contention of the learned Counsel for, the Board is also without force because this relates to claim No. 6. The arbitrators have given a finding (hat the rates for excavation shall be Rs. 130 per cft. instead of Rs. 107.90 already paid. This is a clear and unambiguous finding and the arbitrators have in fact allowed the claim of the contractor in its entirety.

The learned Counsel for the Board further contended that the arbitrators had exceeded their jurisdiction in awarding interest from December 22, 1976 to the date of payment/date of decree, whichever was earlier in the absence of a specific claim to interest. The learned Counsel for the contractor on the other hand contended that the arbitrators had full authority to grant future interest and interest could even be awarded under the general law.

Both the learned Counsel for the parties relied upon several authorities in support of their respective propositions.

Now, interest can relate to three periods: (1) past interest, (2) interest pendente lite, and (3) future interest. The future interest can further be put in two categories: (a) future interest from the date of the award till the date of decree, and (b) the future interest from the date of the decree till realisation.

Future interest from the dats of decree till realisation can easily be granted u/s 29 of the Arbitration Act. The present dispute relates to future interest from the date of pward till the date of decree.

Both the learned Counsel for the parties agree that the arbitrators have got a power to award such future interest but according to the Board it can be allowed only if a specific claim for interest is made in the reference, but if there is no reference to the arbitration with respect to future interest, then in that case the arbitrators have no jurisdiction to award future interest from the date of award till the date of decree. According to the learned Counsel for the contractor the awarding of future interest was within the jurisdiction of the arbitrators because they were required to decide "all matters in difference" between the parties. Another submission was that such aninterest could be allowed u/s 34 Code of Civil Procedure

It is a settled law that if "all matters in difference" between the parties are referred to the arbitrators then in that case the claim for interest even from the date of the award to the date of decree is impliedly referred to the arbitrators and the arbitrators are within their powers to award such an interest.

In Bhowanidas Ramgobind Vs. Harasukhdas Balkishendas, it was held that the arbitrators have an authority to allow interest after the date of award as the Court would allow interest if the matter in dispute went to trial.

In Seth Thawardas Pherumal Vs. The Union of India (UOI), it was held that an arbitrator is not a ''Court'' within the meaning of the Code of Civil Procedure. Hence, an arbitrator cannot award interest after suit on the analogy of Section 34 which dees not apply. Nor does the Code apply to arbitrators, and, but for Section 34, even a Court would not have the power to give interest after the suit. This judgment was subsequently considered in Ct. A. Ct. Nachiappa Chettiar and Others Vs. Ct. A. Ct. Subramaniam Chettiar, and Satinder Singh and Others Vs. Amrao Singh and Others, and it was observed that the observations of Justice Bose, in Seth Thawardas Pherumal Vs. The Union of India (UOI), were not intended to lay down such a broad and unqualified proposition.

In Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., it was observed that in Seth Thawardas Pherumal Vs. The Union of India (UOI), the arbitrator had awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding the interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. The contention of the counsel for the Appellant was that the arbitrator had statutory power under the Interests Act, 1839 to award interest and in any event he had the power to award interest during pendency of arbitration proceedings u/s 34 CPC In these facts and circumstances, the contention was rejected by Justice Base in Seth Thawardas Pherumal Vs. The Union of India (UOI), It was further observed that the judgment in Seth Thawardas Pherumal Vs. The Union of India (UOI), did not deal with the question whether the arbitrator could award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. This subsequent decision in Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., in fact holds that the judgment in Seth Thawardas Pherumal Vs. The Union of India (UOI), (supra), does not deal with the question whether the arbitrator can award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. It was further held that "the arbitrator had jurisdiction to grant interest on the amount of the award from the date of award till the date of decree for the reason that it is an implied term of the reference that the arbitrator will decide the dispute according to existing law and give such relief with regard to interest as a Court could give if it decided the dispute. Though, in terms, Section 34 CPC does not apply to arbitration proceedings, the principle of that section will be applied by the arbitrator for awarding interest in cases where a Court of law in a suit having jurisdiction of the subject matter covered by Section 34 could grant a decree for interest." The Hon''ble Judges of the Supreme Court relied upon the decision in Bhowanidas Ramgobind Vs. Harasukhdas Balkishendas, and Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore, In Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore, the judgment in Seth Thawardas Pherumal Vs. The Union of India (UOI), was again considered and it was observed that "the observations in Seth Thawardas Pherumal Vs. The Union of India (UOI), , divorced from their context, lend colour to the argument that the arbitrator has no power to award pendente lite interest. But in later cases this Court has pointed out that "the observations in Seth Thawardas Pherumal Vs. The Union of India (UOI), were not intended to lay down such a broad and unqualified proposition." It was also held that "in case ''all the disputes in the suit'' were referred to the arbitrator for his decision then one of the disputes in the suit was whether the Respondent was entitled to pendente lite interest. The arbitrator could decide the dispute and he could award pendente lite interest just as a Court could do so u/s 34 Code of Civil Procedure" It was further held that "though, in terms, Section 34 CPC does not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente lite interest as the Court could give if it decided the dispute. This power of the arbitrator was not fettered either by the arbitration agreement or by the Arbitration Act, 1940. The contention that in an arbitration in a suit the arbitrator had no power to award pendente lite interest must be rejected."

In State of Madhya Pradesh Vs. Saith and Skelton (P) Ltd., , again it is held that the arbitrators have powers to award interest on the amount of award from the date of the award till the date of decree where all the disputes including a claim for payment of the amount with interest is referred to arbitrator.

In State of Orissa Vs. Gokulachandra Kanungo, it is held that unless there is a specific clause in the agreement prohibiting provision of interest by the arbitrators, the arbitrators can award interest.

In State of Kerala Vs. K.R. Narayanan, it is held that the claim of interest is an implied subject matter of reference and the arbitrators have powers to award interest on the basis of Section 34 Code of Civil Procedure

In Varkey Vs. Pacific Procon Ltd., it is again held that if the submission to arbitration includes expressly or impliedly the question of interest as well, the arbitrators would be competent to decide that question and award interest.

In State of Punjab Vs. Ajit Singh and Others, (State of Punjab v. Ajit Singh and Ors.), it is held that the power to grant future interest is a discretionary one. It cannot be refused on the ground that party entitled had not expressly claimed the same. In this judgment the case law and the scope of Section 34 of the CPC has been discussed.

The learned Counsel for the Board placed reliance upon Umrao Singh and Co., Mahanagar, Lucknow (U.P.) Vs. The State of Madhya Pradesh and Others, , where it was observed that if the reference does not include a dispute as to interest or if it is not so wisely worded as to include "all matters in difference" then the arbitrator will have no jurisdiction to allow interest after the date of award. This judgment is based upon the observations made in Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore, ; Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., and State of Madhya Pradesh Vs. Saith and Skelton (P) Ltd.,

Another judgment referred by the learned Counsel for the Board was K.G. Agarwal Vs. The Divisional Superintendent, South Central Railway, Solapur and Another, in which it was held that because the dispute qua interest was not referred to arbitrator, therefore, the arbitrator has no power to award interest. This judgment also follows Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., This judgment is a sketchy judgment and it is not possible to find out the various facts of this case.

From the various judgments which have been referred to above it is evident that the arbitrators are competent to award interest in case a dispute with respect to interest is expressly or impliedly referred to them and that the principles of Section 34 CPC are also applicable to the arbitration proceedings. The Full Bench judgment of the Punjab and Haryana High Court in State of Punjab Vs. Ajit Singh and Others, deals with the matter of interest in detail and, after relying upon the Judgments in Firm Madanlal Roshanlal Mahajan Vs. Hukumchand Mills Ltd., Indore, and Union of India (UOI) Vs. Bungo Steel Furniture Pvt. Ltd., and Section 34 CPC it was held that the arbitrators have a power to grant future interest.

Section 34 CPC reads as follows:

(1) Where and in so far as a decree is for payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:

Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I.- x x x x x x x

Explanation II.-For the purposes of this section, a tran-sactionis a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.

(2) xxxxxxxxxxxxx.

The aforesaid section clearly provides that a Court has the authority to grant future interest on the principal sum from the date of decree to the date of payment or to such earlier date as the Court thinks fit.

In view of the above discussion, we are of the view that the two judgments Umrao Singh and Co., Mahanagar, Lucknow (U.P.) Vs. The State of Madhya Pradesh and Others, and K.G. Agarwal Vs. The Divisional Superintendent, South Central Railway, Solapur and Another, are distinguishable and were delivered on the facts and circumstances of those particular cases and as such cannot be followed. We are of the opinion that the arbitrators could grant future interest from the date of award till the date of decree /payment.

The main purpose of making a provision for such future interest seems to be that in case of money decrees the person who is entitled to the money claimed should not be deprived of a reasonable future interest because such decreed principal amount of money in fact becomes due to the claimant on the passing of the decree. The person entitled to the money should not be kept out of money which had become due to him under the decree.

In the facts and circumstances of the present case, the question of awarding future interest from the date of the award till the date of decree could not be a specific matter of reference could only be a matter qua which the dispute had arisen. The question of future interest will automatically arise, which will be impliedly deemed to be a matter of reference in this case because it will be automatically covered when the principal money claimed is adjudicated, that is, it will be treated as if "all matters ii dispute" regarding the disputed claims Have been referred.

In these circumstances, the question of future interest from the date of the award to the date of payment/date of decree is deemed to have been impliedly referred to the arbitrators along with the main question as to whether the claimant was entitled to the principal amount. The arbitrators had also the discretion and jurisdiction to award such future interest. Thus looking the matter from different angles, we find that the arbitrators had the jurisdiction to award interest and the contention of the learned Counsel for the Board cannot be accepted.

We are informed that the Board has already implemented the award and the contractor has been paid his dues in terms of the judgment of the learned single Judge.

An argument was advanced on behalf of the contractor that the judgment of the Court having been implemented, the Board has no authority to proceed with the present appeal. We are, however, not inclined to accept this contention of the learned Counsel for the Respondent. If after the filing of the appeal, the Board wanted to withdraw the appeal or to withdraw the objections, but before taking these steps in the Court, the Board felt the necessity to proceed with the appeal while the appeal was still pending in the Court, it cannot be said that the Board is estopped from challenging the correctness of the decision of the learned single Judge. The appeal was pending in this Court and the Board in its wisdom did not like to withdraw the appeal. Hence the appeal has to be decided on its own merits and payment of the amount to the contractor during the pendency of the appeal or even before the filing of the appeal cannot in any manner mean that the Board has accepted the claim of the contractor. It was only in pursuance of the award or the judgment of the learned single Judge that the Beard made the payment but the right of appeal of the Board cannot be defeated.

We have gone through the award of the arbitrators and the judgment of the learned single Judge and we find that there are no grounds to interfere with the finings of the learned single Judge.

As a result of the above discussion, the present appeal is dismissed with costs.