R.L.E. Cook Limited vs Kuljian Corporation

A.K. Sarkar, J.—This is an application to set aside an award. It is based on two grounds, namely,

(2) there is an error of law apparent on the face of the award, and

(2) there is no evidence upon which the arbitrator could have rejected the Petitioner''s claim on its bill bearing No. 212.

The matter arises out of certain work in connection with the construction of the Bokharo Thermal Plant of the Damodar Valley Project of the Government of India, the Respondent Kuljian Corporation obtained a contract for part of the work there and on October 3, 1950, granted a sub-contract in respect of a portion of it to the Petitioner R.L.E. Cook Ltd. That sub-contract (hereinafter referred to as the contract) provided for what is called progress payments, that is, payments from time to time as the work proceeded, in the manner and at the rates indicated in it. In terms of this provision the Petitioner as it completed parts of the work submitted bills for the work so completed for such amount as was payable in respect thereof under the terms of the progress payment provisions. About April 1952 the Petitioner appears to have erected eight Soot Blowers out of twenty which it had admittedly to erect under the contract and in respect of this work submitted the bill No. 212, dated April 25, 1952, for Rs. 10,388 on account of progress payment. The Respondent paid only half the amount of the bill, that is, Rs. 5,184 contending that under the contract the Petitioner had to erect not only the Soot Blowers but the Soot Blower Pipings as well which it had not done. The Respondent contended that the Soot Blower Pipings were integral parts of the Soot Blowers. The Respondent also contended that the contract specifically required the Petitioner to instal the Soot Blower Pipings. The Petitioner contended that it had no liability under the contract to errect Soot Blower Pipings unless,

(1) The Soot Blower Pipings were supplied by Combustion Engineering Superheater Inc. of New York (hereinafter referred to as C.E.S.),

(2) The installation of the Soot Blower Pipings was supervised by the engineers of C.E.S., and

(3) the work was indicated in the drawings supplied by the Respondents to the Petitioner.

The Respondent did not dispute that no pipings were furnished by C.E.S. but it denied the other contentions of the Petitioner.

Disputes and differences thereupon arose between the parties which were referred to the arbitration of Mr. P.K. Pal, Barrister-at-Law under the arbitration clause contained in the contract. The parties filed their respective pleadings before the arbitrator and the following issues were framed for his decision:

(1) Are Messrs. R.L.E. Cook Ltd. liable under the contract to erect Soot Blower Pipings ? If liable, are they to erect piping furnished by C.E.S. alone ?

(2) Does Soot Blower include Soot Blower Pipings ?

(3) What relief, if any, are Messrs. R.L.E. Cook entitled ?

On March 4, 1953 Mr. Pal made an award stating that the claim of R.L.E. Cook Ltd. is rejected and that they will pay the costs of the proceedings amounting to Rs. 6,000. The Petitioner made an application to set aside the award. On that application an order was made by S. R. Das Gupta, J., on August 4, 1953 semitting the award to Mr. Pal for his reconsideration. Mr. Pal again went into the matter and on February 5, 1954 made an award which the Petitioner now seeks to set aside.

The award runs in this form:

(1)(a) Are Messrs. R.L.E. Cook Ltd. liable under the contract to erect soot Blower Piping ?-Yes.

(b) If liable, are they to erect piping furnished by C. E. S. alone ?-No.

(2) Do Soot Blowers include Soot Blower Pipings ?-No.

(3) To what relief, if any, are Messrs. R. L. E. Cook Ltd. entitled ?-None.

Messrs. R.L.E. Cook Ltd. will pay the sum of Rs. 300. (Rupees three hundred) only as costs of these proceedings in remittal).

It will have been noticed that the award sets out the issues and answers them either with a "Yes" or a "No". There is no dispute as to paragraph 2 of the award. Both parties accept it. The award as to costs is consequential and is not challenged if the disputed portions of the award are not set aside. The dispute is concerned with the rest of the award and this alone is hereinafter referred to as the award.

It is contended that the award is vitiated by error of law apparent on the face of it and that the award in paragraph 3 is also bad as a finding based on no evidence.

I shall have to deal with the several paragraphs of the award separately. First para. 1(a), Mr. Roy said that as this paragraph expressly refers to the contract, that must be deemed to be incorporated in it and if it appears to have been misconstrued by the arbitrator, then there is an error of law on the face of the award. It must hence be set aside.

Mr. Sen has presented three answers to this contention. He has stated, first, that there is no error at all, secondly that no error at least appears on the face of the award and lastly that in any case, as the specific question of construction of the contract in which the error is said to have been committed, had been submitted to arbitration, the award cannot be set aside even if the contract appears from the face of the award to have been wrongly construed.

First then, was the contract wrongly construed? I do not think so. The contract included certain specifications entitled Section M-5a. It is admitted that the work mentioned in Section M-5a had to be done by the Petitioner, the sub-contractor. This specification contained the following clause:

Work includes the erection and installation of.... Soot Blowers and Soot Blower Piping....all as shown on Combustion Engineering Superheater Inc. drawings-

E. 778-143-10 Plan view.

E. 778-084-11 Side Elevation.

F. 778-085-10 Front Elevation.

The plain meaning of this clause is that the Petitioner had to erect the Soot Blower Piping as shown on the drawings mentioned. This is not disputed by Mr. Boy. But he says these drawings do not show the Soot Blower Piping and that the witnesses for the Respondent admitted before the arbitrator that this is so. He therefore says that his client is not liable under this clause to erect the Soot Blower Piping, and that the arbitrator in finding the Petitioner liable went wrong. Assume that the arbitrator went wrong as Mr. Roy says. But did he thereby commit an error in the construction of the contract? Obviously not. And that is plain from Mr. Roy''s arguments. The mistake, if any, was in ignoring the evidence of the Respondent''s witness -if there was the evidence-about what the plans referred to. That, however is a kind of mistake with which I am not concerned. The mistake on which the application is based is a mistake in the construction of the contract. That mistake is not established if it depends on appreciation of the evidence given about the drawings. That is not a mistake in the construction of the contract. As Lord Parmoor said in Kelantan Government v. Duff Development Co. (1923) A.C. 395 at p. 417:

It is not competent to examine extrinsic evidence for the purpose of determining whether an arbitrator has made an error of law, within the limits of his jurisdiction.

The drawings mentioned were produced before me and it is impossible for me to say whether they referred to the Soot Blower Pipings or what they referred to. I think therefore that so far as plain meaning of the words of the contract went, the arbitrator made no mistake in holding on a construction of it that the Petitioner was liable to erect the Soot Blower Pipings.

The same position is established from another part of the contract. The relevant provisions are hereunder set out:

Agreement Article 1: The sub-contractor shall furnish all the materials and perform all of the work shown on the drawings.

Article VI: The General Conditions, the Supplementary General Conditions, the instructions to Bidders, the specifications and the drawings together with this Agreement form the contract and they are as fully a part of the contract as if hereto attached or herein repeated.

Instructions to Bidders-clause 1: All bids shall be based on lump sum contract for furnishing necessary labour, material and equipment to complete the work as specified under specification Section M-5a Boiler Equipment Erection, and as indicated on Kuljian Corporation and Combustion Engineering Superheater Inc. drawings.

A set of specifications and drawing, list on in Supplementary General Conditions, completely covering job No. K 1310 Bokaro Thermal Plant, Damoder Valley Corporation is available at the field office of the General Contractor, the Kuljian Corporation. The sub-contractor shall be responsible for all work in these complete specifications or in any of these drawings which may be involved in fully performing the scope of the work intended under the particular specifications and drawings listed. General Conditions, Clause 4: Figured dimensions ahall be followed in preference to scale, and detail drawings in preference to small scale drawings.... After signing the contract, the contractor will be furnished, free of charge with three sets of blue prints in addition to any other copies needed for Government or local authorities.... Such further drawings or explanations as the Engineer may furnish to the Contractor to detail and illustrate the work to be done and the Contractor shall conform thereto as part of the contract.

Clause 6: The drawings and specifications are intended to co-operate so that any item set forth in either shall be recognised the same as if fully set forth in both. Supplementary General Conditions, Clause 4: The drawings accompanying this specification, and upon which the estimates and contract shall be based are as follows, together with any other which may be issued from time to time:

List of drawings annexed to Supplementary General Conditions: No. M-45 Soot Blower Piping Erection-Plan.

No. M-45H Soot Blower Piping Hangers-Elevation.

The result of the provisions quoted above is that the Petitioner has to do all work in connection with Boiler Erection as shown on the drawings annexed to the Supplementary General Conditions and on the detailed drawing in respect thereof in preference to smaller scale drawings and that the drawings listed in the Supplementary General Conditions include drawings of Soot Blower Pipings being drawings Nos. M-45 and M-45H. It follows that the Petitioner undertook by the contract to erect Soot Blower Piping.

It is not said that the drawings M-45 and M-45H did not show the Soot Blower Pipings as was said in respect of the drawings enumerated in Section M-5A. It is, however, said that there is no proof of the list annexed to the Supplementary General Conditions. This is wholly idle. If the question is of proof, it is not of interpretation of the contract. In any event Mr. Roy handed over to me a yellow brochure and this he relied upon in his argument before me as the contract. The contract so relied upon by Mr. Roy snows a list of drawings annexed to the Supplementary General Conditions and that list includes the drawings Nos. M-45 and M-45H. He cannot therefore he heard to say that there is no proof of any list of drawings annexed to the Supplementary General Conditions nor that the list does not include drawings of Soot Blower Pipings. Indeed what I have set out above from the contract has been taken from this brochure. I have signed this brochure and it will form part of the records of this application. Mr. Sen has not accepted this brochure as correctly setting out the contract as a whole, but I believe he agrees that the portions I have set out above from the contract correctly represent the agreement of the parties.

I should now say that it may be that the job No. K 1310 includes the whole of the work for the Bokaro Thermal Plant and that the list of drawings cover the whole of such work. It may also be that the Petitioner was not given the whole of this work but only the Boiler Equipment Erection portion. But even so the drawings relating to the Soot Blower Piping are in his contract if they are part of the Boiler Erection Equipment. That they are so is made clear from what I have set out earlier from the specification Section M-5a. If that is not so then it becomes a question of proof as to what Boiler Equipment Erection included and therefore not a question of the construction of the contract simpliciter.

Then again certain detailed drawings in respect of Soot Blower Pipings bearing Nos. E792-026, E792-027, E784-086 and E784-140 appear in the records of the arbitrator. These are drawings of C.E.S. and Mr. Sen said that these were produced before the arbitrator by the Petitioner as plans given to it by the Respondent. This is not denied by Mr. Roy. It will be remembered that the Clause 4 of the General Conditions provide that the detailed drawings shall be followed in preference to small scale drawings and that further drawings as the Engineer (which in this clause means the Respondent or its authorised representative) may furnish to the contractor (i.e., the Petitioner) to detail and illustrate the work will become part of the contract. It seems to me that the plans the numberings of which have been given earlier in this paragraph were furnished to the Petitioner to detail the work to be done by him. If these detailed drawings did not relate to the work undertaken by the Petitioner I do not see why it should have taken these plans and not protested, which it does not appear to have done. It may be that the plans specified in Section M-5a are small scale drawings and the detailed drawings thereof included the drawings earlier enumerated in this paragraph. I wish to observe that what I have stated in this paragraph is not strictly relevant to the case now before me but I have non-the-less made these statements for the sake of clarity and of showing the entire background in which the points argued arise.

Another point which I may mention here incidentally, as it is not strictly a point arising in this case, is the Respondent''s contention that Soot Blower Piping formed an integral part of the Soot Blowers and as the Petitioner admitted liability to erect Soot Blowers it automatically admitted'' liability to erect the Pipings. This may or may not be correct from an engineering point of view but with that I am not concerned for that would depend on evidence of experts. That contention appears however to have been raised on the progress payment provisions in the contract: It will be remembered that the bill of the Petitioner for progress payment in respect of eight Soot Blowers erected by it started the dispute. Now that bill was alleged to have been made in terms of the progress payment provisions. These provisions laid down the breakdown percentage for each boiler for the purpose of progress payments. They stated the figure for Soot Blowers to be 5 per cent, and did not mention Soot Blower Pipings at all. It appears to me that as the Respondent''s contention was that the Petitioner had expressly undertaken by the contract to instal Soot Blower Pipings, the fixation of 5 per cent, as the breakdown percentage for Soot Blowers without mentioning the Soot Blower Pipings at all showed that this 5 per cent, included Soot Blower Pipings and these were not mentioned separately having been there treated as an integral part of the soot Blowers.

For all these reasons in my view the arbitrator had correctly interpretated the contract and there was no error in para. 1(a) of the award.

It will be convenient to examine now if there is any error in para. 1(b) of the award. The arbitrator there held that the Petitioner was liable to erect Soot Blower Pipings whether supplied by C.E.S. or any one else. Obviously the arbitrator was right. There is nothing in the contract to show that the Petitioner was liable to erect only the Soot Blower Pipings supplied by C.E.S. I have already set out the relevant provisions. No provision in the contract was pointed out as showing that the Petitioner''s liability to erect Soot Blower Pipings were confined only to such as were supplied by C.E.S, The Respondent in its pleading before the arbitrator stated that the pipings were originally agreed to be supplied by C.E.S. but was later at its instance supplied by Blow Knox Co. But then here the Respondent obviously speaks of an agreement between it and C.E.S. With that agreement the Petitioner had nothing to do and the Respondent was free to vary that agreement without affecting its contract with the Petitioner. I have already said the Petitioner agreed to erect the Soot Blower Pipings without making any provision that such pipings must however be supplied by C.E.S. The Petitioner''s liability was only to erect the Soot Blower Pipings and not to supply them also. It had to be given these pipings and by the Respondent. The Respondent had therefore to get them from somewhere. But where it got them from was no business of the Petitioner''s. In order to procure these pipings the Respondent first made a contract with C.E.S. That did not give the Petitioner a right to say that it was liable only to erect the pipings supplied under that contract by C.E.S. As I have said the Respondent was free to vary that contract with C.E.S. without in any way prejudicing its rights against the Petitioner under the contract between them. There is a provision in Section M-5a that the erection of boilers and equipment will be done under the supervision of an Erection Engineer of C.E.S. This does not show that the C.E.S. must also supply the Soot Blower Pipings which were to be erected by the Petitioner under their supervision. There is nothing to prevent them from supervising the erection of Soot Blower Pipings supplied by somebody else. I am therefore of the view that there is no error in para. 1(b) of the award.

But suppose I am wrong and the construction of the contract in the award is erroneous. But that alone would not make the award bad. It has to be shown that the error appears on the face of the award. It is established law that if an error appears on the face of the award, it is liable to be set aside. Mr. Roy contends that the present award is erroneous on the face of it. He puts it in this way. Since para. 1(a) of the award expressly refers to the contract, the contract has become incorporated in the award and para. 1(b) being consequential upon the view taken in para. 1(a) it likewise incorporates the contract; the contract being thus in the award and the award being only a wrong construction of the contract, an error appears on the face of the award. Mr. Roy has cited F.R. Absalom Ltd. v. Great Western (London) Garden Village Society (1933) A.C. 592. There Lord Russel expressed himself in these terms (p. 611):

There still remains the question whether this error of law is apparant on the face of the award. I think it is. The award recites the contract and refers in terms to the provisions of condition 30. Condition 30 accordingly is incorporated into and forms part of the award just as if the arbitrator had set it out verbatim and had then proceeded to state the construction which he placed upon it. The Court can look at it just as it looked at the answers of the Divisional Court in the British Westinghouse Co''s case, at the contract in Landaner v. Asser and at the pleadings in Kelantan case.

In this view of the matter the House of Lords found that there was an error apparent on the face of the award. In Landaner v. Asset (1905) 2 K.B. 184, the award stated, "Having been asked to act as "umpire on the question as to the liability and interest in the "policy of insurance....I decide that as the parties to the "contract were by the terms thereof the principals thereto, their "interest and "liability in insurance is defined to be the value of "the invoice plus 5 per cent., and the buyers are therefore "entitled to, and only to the said amount the balance one way "or the other being due from or to the sellers." The sellers were a Messrs. Asser. It was held that "as the award wrongly decides "that in point of law under the contract Messrs. Asser have en "title to the sum in dispute, it is bad in point of law and must "be set aside" (p. 195). In this case the legal proposition was stated in terms on which the award proceeded, namely, the propositioja that the parties to the contract were principals; thereto. That was a construction of the contract, the contract being itself referred to in the award. The case now before me is the same. The contract is mentioned and its construction is set out. So on the principle of the cases above cited and on the assumption that I have made there is an error on the face of the award. The court is able to find out from the award itself that It is based on a wrong construction of the contract.

Mr. Sen said that mere incorporation of the contract in the award which expressly construed it and wrongly, is not enough and that the process of reasoning leading to that construction must also appear on the face of the award. He said that was held in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. (1923) L.R. 50 IndAp 324. He referred to the following passage in the judgment in that case (p. 331):

An error in law on the face of the Award means, in their Lordships'' view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous.

As I apprehend this passage it does not support Mr. Sen''s contention. All that it says is that some legal proposition which is the basis of the award must appear on its face or from some document incorporated in it, which proposition is erroneous. It was also said in the Champsey Bhara and Co.''s case that (p. 331):

To make it equiperate with Landawer v. Asser the award would have to run somewhat thus: In respect of the ground of rejection contained in the letters of November 11 and 25 and in respect of Rule 52 of the Association, I decide that, etc.

All that the award there had done was to refer to the letters, the rules and the contract in the form of a narrative of facts that had happened and not as indicating any basis of the decision made by it. This is what Lord Wright said in Absalom''s case already cited (p. 612):

The award recited the contract between the parties and referred in terms to certain conditions of the contract-namely, clauses 26, 30 and 32 ; though these clauses are not set out in full, they must, I think, be taken to be incorporated: The award is expressly based on the provisions of clauses 26 and 30, and hence the position here is quite different from that in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. where the terms of the contract were held not to be incorporated.

The award in this case is expressly based on the construction of the contract. Hence it sets out a legal proposition inasmuch as construction is generally a question of law. If that proposition is incorrect it must be said the award contains an error on the face of it. So I think Mr. Sen''s second point must fail. It must be held that if the construction by the arbitrator is erroneous that, error appears on the face of the award.

That brings me to Mr. Sen''s last point. It is that as the specific point of law, that is, the question of construction of the contract, had been submitted to the arbitrator for his decision, his award cannot be challenged even though it may be erroneous on the face of it. There is no dispute as to the proposition of law which is well established. It may thus be stated in the words of Viscount Cave in Kelantan Government v. Duff Development Co. Ltd. (1923) A.C. 395:

The reference, therefore, was a reference as to construction. If this be so I think it follows that, unless it appears on the face of the award that the arbitrator has proceeded on principles which were wrong in law, his conclusion as to the construction of the deed must be accepted. No doubt an award may beset aside for an error of law appearing on the face of it, and no doubt a question of construction is (generally speaking) a question of law. But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator upon that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally-for instance, that he has decided on evidence which in law was not admissible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award ; but the mere dissent of the Court from the arbitrator''s conclusion on construction is not enough for that purpose.

And Lord Trevethin said (p. 421):

If your Lordships should be of opinion that the award is bad in law upon il face, it should be set aside, for this is not in my view a submission to arbitration of such a nature that though the law be bad upon the face of the award, the decision cannot be questioned. That happens only when the submission is of a specific question of law, and is such that it can be fairly construed to show that the parties intended to give up their rights to resort to the King''s Courts, and in lieu thereof to submit that question to the decision of a tribunal of their own.

The question, however, whether a specific point of law was referred to arbitration is of some difficulty, it will have been noticed that in the case last cited Lord Cave and Lord Trevethin took different views on this question. The distinction is thus stated in The Attorney General for the province of Manitobe v. Thomas Kelly Ltd. (1922) 1 A.C. 268 at p. 283:

Where a question of law has not been specifically referred to an Umpire, but is material in the decision of matters which have been referred to him, and he makes a mistake, apparent on the face of the award, an award can be set aside on the ground that it contains an error of law apparent on the face of the award.

The question then to be determined is whether the point of law, that is the construction of the contract, was specifically referred to Mr. Pal or did it become material to decide it, for deciding the question actually referred? Now in this case, in my view, that question has been solved by the judgment of S.R. Das Gupta J., of August 4, 1953 remitting the earlier award of Mr. Pal back to him for his reconsideration. I have already referred to this judgment in my narrative of the facts of this case. The issues raised before Mr. Pal on which he made his earlier award were the same as those which he decided by the award now before me. By the earlier award he had disposed of the matter by saying that the claim of R.L.E. Cook Ltd. in respect of its bill No. 212 was disallowed and by providing for the costs of and incidental to the proceedings before him. In applying to set aside that award the present Petitioner contended that the arbitrator had not decided some, if not, all the issues which had been specifically raised before him. It was then said by Mr. Roy, who appears for R. L. E. Cook Ltd. before me also, that there must be finality as to future disputes and that the object of the reference to Mr. Pal was to have the questions specifically raised before him decided once for all but Mr. Pal not having decided those questions they may come up again in future and may be the subject matter of fresh arbitration. It was pointed out that he had not decided Issue 1(a) and (b) and (2). These contentions found favour with the learned Judge who thereupon remitted the Award to Mr. Pal for his reconsideration. I read here a portion of the judgment of S.R. Das Gupta J. to make the point clear. He said, I agree with the contentions of Mr. Roy. It seems to me that specific questions were raised before the arbitrator and the arbitrator was called upon to decide these questions. But the arbitrator has not decided any of these questions except perhaps the last one. The arbitrator has not decided the questions of constructions of the contract which were specifically raised before him and these questions have remained undetermined.... Mr. Deb, no doubt, contended before me that the decision which the arbitrator has given in his award implies decisions on those questions as well and the said decisions must be held to have been in favour of the Respondent. That may be so, but, in my opinion when certain questions have been specifically raised before the arbitrator the arbitrator should give his decisions, on all those questions and not leave things in such a state that his decisions on some of those questions at least have to be determined by implication.

This puts the matter beyond question. So the contention of the present Petitioner before S.R. Das Gupta, J., was that the points referred to the arbitrator included questions of constructions of the contract and these questions, as I have said were the same as these the answer to which are now said to be erroneous. The questions of construction now answered in the award were then said to have been specifically submitted for the arbitrator''s decision but left unanswered. The Petitioner obtained the judgment of S.R. Das Gupta, J., on the basis that specific questions of construction had been raised for the arbitrator''s decision, or in other words, specific questions of construction had been submitted for the arbitrator to decide by his award and that the arbitrator had failed to answer those questions. That judgment of course operates as res judicata. If the questions of construction were merely incidental to the question whether the Petitioner''s bill should be paid in full or not, the judgment of S.R. Das Gupta, J., would have been otherwise. The contention of Mr. Roy before that learned Judge that the decision of the questions of construction were necessary to avoid future disputes, makes it impossible for those questions to have been merely incidental to the decision of the dispute on the bill.

Mr. Roy contended that the fact that the arbitration agreement provided that questions of construction may be referred to the arbitrator was not enough to show that such questions had been submitted to the arbitrator''s decision and he relied for this purpose on Absalom''s case. That may be so. It is not however said that because the arbitration agreement in the case before me empowered the arbitrator to decide questions of construction that such questions must have been submitted to the arbitrator. What is said is that and this apart from the effect of the judgment of S.R. Das Gupta, J., the pleadings before the arbitrator make it perfectly clear that the questions of construction of the contract had been specifically submitted to him. In Absalom''s case, which held that specific questions of law had not been submitted to the arbitrator the learned Judges went into the pleadings (p. 613) and found out that the disputes submitted were in regard to (1) the issue of certificates by the engineer entitling the contractor to payment and (2) the validity of the notice served under clauses 26 of the conditions. It was there said by Lord Wright (p. 616):

The arbitrator was not being asked simply and specifically to decide, upon some agreed or assumed basis of fact, the true interpretation of either Clause 26 or Clause 30 of the conditions or both together ; he was being required to make an award on the two matters submited on whatever questions of fact and law might emerge.

Likewise in the Kelantan case Lord Cave and his colleagues went into the pleadings to find out what was the dispute referred

The pleadings before the arbitrator and even those before me now, leave no room for doubt that specific questions of construction of the contract had been submitted to the arbitrator for his decision. The Petitioner had installed certain Soot Blowers. It made the bill No. 212 for progress payment in respect of such installation. The Respondent took the point that since the Soot Blower Pipings had not been installed the Petitioner was only entitled to half the amount of the bill. The Petitioner denied liability to instal the Soot Blower Piping. Upon that, the reference took place, the only dispute being whether under the contract the Petitioner was liable to construct the Soot Blower Piping. That was the question submitted to the arbitrator. That being so the award cannot be challenged on the ground that the question of law was wrongly decided. It might have been set aside even then if the arbitrator proceeded to decide the question illegally, as Viscount Cave said in the Kelantan case at p. 409. There is no question about that here. It is not suggested that in coming to the wrong construction the arbitrator had proceeded illegally. Therefore I come to the view that this award cannot be challenged on the ground of an error apparent on the face of it.

I come now to paragraph 3 of the award. The Petitioner had made a bill for Rs. 10,368 and had been paid half this amount. The third paragraph of the award dealt with the question what payment the Petitioner was entitled under the bill. The award held that it was not entitled to any more payment-I do not find here any error on the face of the award. It is consequential to a certain extent at least, on the answer to issues 1(a)(6) and 2. As the award concerning those issues in my view discloses no error on the face of the award, it follows that the award in paragraph 3 discloses no-such error either.

But then it is said that it is based on no evidence and hence it is bad on the ground generally described as legal misconduct. I do not understand this. The bill is for progress payment for installation of Soot Blowers. The Arbitrator held that the Petitioner was liable to erect Soot Blower Pipings also. I have found that this part of the award cannot be challenged. Now the progress payment terms in the contract do not provide separately for Soot Blower Piping work. This I have already said. That being so the arbitrator could have come to the conclusion on the contract without the aid of evidence that the Petitioner was not entitled to any payment for installing Soot Blowers alone. There would be nothing wrong in that. Indeed it seems to me that the Petitioner did not contend that if it lost the questions of construction in issues 1(a), (b) and 2 it was still entitled to progress payment. See the letters of May 28, 1952- Furthermore the Petitioner granted a receipt for the amount paid by the Respondent on that bill No. 212 in which it stated that it was in full payment of that bill. Here there was evidence on which the arbitrator could hold that in any case no more was payable in respect of bill No. 212 And this notwithstanding any evidence given by the Petitioner explaining the form of the bill. The award cannot be challenged if the arbitrator rejected that evidence.

In the result the application fails and is dismissed with costs.