1. MRS. QAISER IQBAL, J.--- Messrs Falcon Enterprises, had filed a unanimous Award dated 29-10- 2004 passed by the Arbitrators against National Refinery Limited wherein the claimant/plaintiff was awarded a sum of Rs,14,773,000. The defendant filed the objections to the Award, in terms of sections 30 and 33 of the Arbitration Act, 1940.
2. Before proceeding to consider the objections, the necessary facts leading to the controversy are that the plaintiff was carrying on business of transport and had submitted quotation in response to the advertisement published in the newspaper for transportation of the employees of the defendant, which was accepted; he furnished two performance guarantees on 1-12-1999 and entered into an agreement for providing transportation services. The employees of the defendant created hindrances in performance of the contractual obligations by the plaintiff due to the fault in the card punching machine and on number of occasions the arrival of the transport was not recorded, as well as on account of none-cooperation on the part of the defendants' influence of the collective bargaining agent, no remdial measures were taken which resulted in huge losses to the plaintiff. The defendant failed to provide the details of the deduction to the plaintiff, and got encashed the bank guarantees. The claim of the plaintiff was not settled.
3. The defendant denied the claim of the plaintiff and set up a counter-claim of Rs,33,12,709 in terms of clause (8) of the agreement. The matter was referred to the Arbitrators Justice (Retd.) Dr. Ghous Muhammad and Mr. Abdul Mateen Khan and on the basis of evidence led by the parties, the award was unanimously passed in favour of the plaintiff.
4. The learned counsel for the defendant has raised objections in respect of non-reading of the evidence relating to pick up points and pick up time prescribed for shifting of the staff of the defendant from one place to another and averred that the grace of 10 minutes was awarded by the Arbitrators on account of misreading of the evidence per performance contract executed between the parties; time was essence of the performance. It is further contended that per clause
(8) of the contract the only obligation on the part of the defendant was to make payment of the bills submitted by the plaintiff in terms of clause (11) of the contract in case work was performed in accordance with the contract subject to deductions/recoveries of amount. The payments were made to the defendant as per terms of agreement, no grievance against the deduction and recoveries were expressed during subsistence of the contract. On the request of the plaintiff the period of contract was extended to another one year, the plaintiff claimed heavy amount, one and a half years after the termination of contract. The amounts claimed by the plaintiff are as follows:--
(a) Recovery from the head of lapses, penalties, taxes penalties, workers over times and stayRs,80,000,000
(b) Unpaid monthly bill for the month of April 2002 along with extra transportation billsRs,10,00,000
(c) Unpaid bill for 8 days for the month of May, 2002Rs . 2,85 , 200
(d) Fuel adjustment charges for March and April, 2002.Rs,4,00,000
(e) Forced termination of agreement prior to the date of expiryRs,36,47,075
(f) Unpaid fuel adjustment charges for extra transport facility provided i,e, cars, vans etc.Rs,5,00,000
(g) Encashment of Bank guaranteeRs,10,00,000 Total Rs,2,38,05,275 It is contended that plaintiff's liability for penalty and other recoveries on account of defaults in providing transport as per clause (8) of the Contract reads as follows:- "In case the contractors' transport fails to report or reaches late at pick up points at the scheduled time or reaches the refinery late or the vehicles do not at all reach the contractor shall be liable to bear the taxi fare charges, over time/overstay amount which the refinery is due to pay to workers on account of above defaults in addition to penalty from Rs,1,000 to Rs,2,000 for each such incident, which shall be recoverable from the contractor.
5. It is next urged that award is perverse not based on evidence adduced by the parties, same is not sustainable in law being erroneous on the face of record. In support thereof, reliance is placed on Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108 and Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Ltd. Karachi PLD 2003 SC 301. Thus, on account of misconduct on the part of the Arbitrators by not appreciating the evidence adduced and awarding the plaintiffs claim without demanding the details of the recoveries of deduction could not be adjudicated upon.
6. The learned counsel appearing for the defendant has asserted that on account of misreading of the evidence and in the absence of pivotal documents the award is based upon the misconduct committed by the Arbitrators by pronouncing the erroneous award by ignoring the evidence brought on record. The Arbitrators. had rejected the claim of the defendant without any basis and without considering the evidence produced by the defendants. The award had two aspects, forced termination and amount awarded. The Arbitrators had alluded to unidentify circumstantial evidence and alleged presence of C.B.A. for .which no evidence has been/was tendered. It is contended that Arbitrators misconducted on the issue of unpaid bills for April, 2002, unpaid bills for 8 days of May, 2002. Fuel adjustment charges, forced termination of agreement prior to date of expiry.
7. I have considered the arguments advanced at the bar.
8. The object of the settlement of dispute through arbitration is to avoid lengthy procedure by invoking jurisdiction of Civil Court, the status of the Court principally is of supervisory nature and that of appellate power under Code of Civil Procedure. In support thereof reliance is placed on the case of Waheed Brothers (Pakistan) Ltd. v. Messrs Izhar (Pvt.) Ltd., Lahore 2002 SCM R 366; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCM R 1903; Ashfaque Ali Qureshi v. Municipal Corporation, Multan 1985 SCM R 597. The established rule is that it is the duty of the Court to give reasonable intendment in favour of award and lean towards upholding rather than vitiating the same, Arbitrator being a Judge of all matters arising in dispute whether of facts or law. In such situation Court should not act as a Court of appeal or sit in judgment over award, not to proceed to scrutinize award in order only to discover an error for purpose of setting it aside whether error must be apparent on face of the award and not latent. An award under section 16 of the Arbitration Act may be remitted under the following conditions:--
16. Power to remit award
(1) The Court may from time to time remit the award or any matter referred to arbitration to the Arbitrators or umpire for reconsideration upon such terms as it thinks fit:
(a) where the award has left undertmined any of the matters referred to arbitration or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred to; or
(b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision; or
(c) where an objection to the legality of the award is apparent upon the face of it.
(2) Whether an award is remitted under subsection (1) the Court shall fix the time within which the Arbitrator or umpire shall submit his decision to the Court: Provided that any time so fixed may be extended by subsequent order of the Court.
(3) An award remitted under subsection (1) shall become void on the failure of the Arbitrator or umpire to reconsider it and submit his decision within the time fixed.
9. The defendant had challenged the award on the basis of non-reading of evidence and non- production of documents by the plaintiff during the course of proceedings before arbitral Tribunal which manifestly shows that such objection was not raised before the Arbitrators nor specific incidence has been given in support of the misconduct by the Arbitrators. It is well-settled rule of the construction of the award that the award should be construed liberally in accordance with the common sense and it should be so read that it could be given effect to and not so that it would nullify the efforts of the Arbitrators appointed by the parties themselves.
10. The objections relating to non-reading of evidence by the Arbitrators as submitted by the learned counsel for the defendant and rejection of the claim of the defendant is not sustainable in law, as Court would come to a different conclusion after reading evidence cannot be ground for interference with an award. In this context reliance is placed on A. Qutubuddin Khan v. KESC 1980 CLC 1977 and Premier Insurance Company (Pakistan) Ltd. Karachi v. Ijaz Ahmed Khawaja 1981 CLC 311.
11. The objections raised by the defendant about the misconduct of the Arbitrators cannot be sustained as they had acted in line of the rules laid down unanimously; there exists no error patent on the face of the record and the documents relied upon for the purpose of investigation and enquiries into the claim of the plaintiff with full reasoning and dealing with each and every item proposed by both the parties to resolve a complicated dispute with reference to the explanation furnished by the defendants. The contention that Arbitrators had exceeded their power is without any substance. The Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the Arbitrators in order to discover the error or infirmity in the award. The perversity in reasoning of the Arbitrators is required to be established on the basis of the material considered by the Arbitrators in the award. In this context reliance is placed on the cases of Messrs Joint Venture KG/RIST v. Federation of Pakistan PLD 1996 SC 108 and Mian Corporation v. Lever Brothers of Pakistan Ltd. PLD 2006 SC 169.
12. In the above circumstances the objections filed by the defendant are not sustainable in law and are hereby dismissed. The award is made rule of the Court. Consequently, decree shall follow with costs.