The Secretary, River Valley Project vs Mahabir Prasad and Others

S.B. Sinha, J.—This appeal is directed against the judgment dated 4th july, 1981 passed by Shri. P. Topno, Subordinat Judge, Giridih in Arbitration Case No. 15/78, whereby and whereunder the said learned court made the rule in respect of an award submitted by one Shri. Akhileshwar Prasad, Superintending Engineer, Tenughat absolute by rejecting the objection filed on behalf of Appellant u/s 30 of the 1940.

Mr. K.P. Mitra, the learned junior counsel to the Government Advocate in support of this Misc. Appeal raised two fold contentions Firstly he submitted that from a perusal of the award itself it would appear that Sri. Akhileshwar Prasad was although purported to have been appointed as the sole arbitrator in terms of a letter issued by the Subordinate Judge, Giridih vide letter dated 7.2.1980 but the said letter is not on record. The learned Counsel further submitted that from the order sheet dated 24.4.1981 it appears that one Shri, M. Narayan was appointed earlier as a sole arbitrator and as such the learned Counsel appearing on behalf on the Appellant submitted that Shri Akhileshwar Prasad had no jurisdiction to make in award.

The learned Counsel next submitted that he arbitrator misconduct himself and the proceeding in passing the award in so far as he did not allow the Appellant to adduce any oral (sic) documentary evidence.

Mr. A.N. Deo, learned Counsel appearing for the Respondents on the other hand, new my attention to the order sheet dated 20th may, 1981 and submitted that from a perusal (sic) it will appear that the learned G.P. con-(sic) that the award made by Mr. Akhileshwar (sic) is valid in law.

Mr. A.N. Deo, learned Counsel has fur-(sic) drawn my attention to paragraph 6 of the (sic) from a perusal whereof it appears that (sic) a concession was made to the effect that the arbitrator has not committed any misconduct nor there has been a miscarriage of justice by reason of the said award.

From a perusal of the order sheet dated 20.5.1981 it appears that the appointment of Sri. Akhileshwar Prasad as a sole arbitrator was not disputed. Further the Appellant has not stated either before the court below or in this Court that it did not participate before the said arbitrator or participated under protest.

It is now well settled by various decisions of this Court that if a party in an arbitration proceeding before the arbitrator has taken part therein without any demur whatsoever he is estopped from challenging the jurisdiction of the arbitrator.

Reference in this connection may be. made in the case The State of Bihar Vs. S.K. Sahay, which decision has been followed by a Full Bench of this Court reported in 1983 B.B.C.J. 503 : 1983 PLJR 443 (Chandeshwar Singh v. Dahu).

In this view of the matter, in my opinion, the first submission raised by the Appellant has no substance.

So far as the second contention raised by the Appellant is concerned, it will be useful to quote paragraph 6 of the judgment:

During the course of argument, learned G.P. submitted that he did not intend to press as regards the points of misconduct, erroneous breach of duty and miscarriage of justice alleged to have been done by the sole Arbitrator. Hence, this point is dropped and it is to be accepted that there has been no misconduct on the part of the Arbitrator nor any miscarriage of justice has been done by him in the submission of the award. The only point for consideration is whether the Arbitrator has submitted correct award as regards the amount allowed to the Plaintiff in item Nos. 1, 2 & 3.

It will, therefore, appear that no objection was taken before the learned court below or in the proceeding before the arbitrator and it was expressly conceded that there has been no miscarriage of justice at the hands of the arbitrator.

From a perusal of the judgment of the learned court below it appears that the only abjection which was pressed before it was with regard to the correctness of the award.

The learned court below has dealt with this aspect of the matter and has come to the conclusion that there is no error apparent on the face of the award. It is now well known that, in terms of Section 30 of the Arbitration Act, 1940, an award made by an arbitrator can be set aside only if a misconduct against him or misconduct in the proceeding is pleaded and proved pr if the award contains an error apparent on the face of it.

Evidently, a court while adjudicating upon an objection u/s 30 of the Arbitration Let can ''not embark upon an enquiry with regard to the correctness or otherwise of the award self. An award which may contain an error of fact is also binding upon the parties and the Line cad not be set aside.

In this view, of the, matter, there is no merit this appeal which is dismissed with costs which is quantified at Rs. 500/-.