IRFAN SAADAT KHAN, J.---This suit has been filed in respect of the objections under section 30 read with 33 of Arbitration Act, 1940 ("the Act") for setting aside award dated 12-4-2010.
2. Briefly stated the facts of the case are that the claimant/plaintiff is a Private Limited Company and is engaged in the business of construction and property development. The respondent is a statutory body (hereinafter referred to as "KFHA"). The plaintiff was awarded project by the respondent through competitive bidding for construction of commercial building consisting of shops and offices on Build, Operate and Transfer (B.O.T.) basis on the land situated at Karachi Fish Harbour Authority. The formal agreement was made between the parties, which was duly executed on 28-2-2005 ("the agreement"). It was specifically mentioned vide Clause 24 of the said agreement as under;--
24. That any dispute or difference, which may arise between the parties hereto with regard to interpretation, meaning of the effect of the provisions of this Agreement or any part thereof shall be referred to Two Arbitrators, one to be appointed by each of the Parties, whose decision/Award shall be final and binding upon the parties. And in the even of difference between such Arbitrators, it shall be referred to the sole Umpire to be nominated by such Arbitrators, whose decision shall be final and binding upon the Parties.
3. Thereafter a dispute arose between the parties and the matter thereafter was referred by the plaintiff to their Arbitrator namely Mr. Justice (Retd.) Saiduzzaman Siddiqui. As respondent failed to appoint/nominate their Arbitrator within 15 days of service of the notice, the plaintiff requested his Arbitrator to proceed as Sole Arbitrator as provided under section 9(b) of the Act. The Arbitrator thereafter proceeded with the matter and issued notice to both the parties, in response thereof both the parties appeared from time to time before the learned Arbitrator, who vide his Award dated 12-4-2010, disposed of the matter.
4. Mr. Ali Sher Habibani, learned counsel appeared on behalf of the defendant and submitted that the Award has been given after statutory period of four months hence this Award is time-barred and could not be taken into consideration. The learned counsel further submitted that no permission was obtained from the Court for extension of time and in view of the above two legal anomalies, the Award given by the learned Sole Arbitrator may be set aside. The learned counsel further submitted that it has specifically been provided in the agreement that two Arbitrators will be appointed whereas in the instant case the defendant's Arbitrator has not been considered which was duly appointed by them on 25-9-2008. In support of his above contentions the learned counsel has relied upon 1982 CLC 97, 1990 MLD 261 and PLD 1958 (W.P.) Karachi 158.
5. Mr. Muhammad Masood Khan, learned counsel appeared on behalf of the plaintiff and submitted that the objections raised by the KFHA are misplaced and afterthought. He submitted that as KFHA failed to appoint their Arbitrator in due time though specific notice was given to them and only thereafter the learned Arbitrator appointed by the plaintiff acted as a Sole Arbitrator and proceeded with the matter. He further submitted that ample opportunity was given by the said learned Arbitrator while proceeding with the Award and due representation has been made by the defendant and their present objections with regard to the said Award are nothing but an afterthought on their part. The learned counsel further submitted that while the matter was being proceeded before the learned Arbitrator a categoric undertaking, which is present at page-1035 of the arbitration file, was given wherein the respondent have specifically submitted that they will not object to the Award being given beyond four months statutory time. The learned counsel further submitted that the delay occurred was due to the attitude of the respondent itself as a number of opportunities were given to the respondent to appear in this case and it is due to their taking of innumerable adjournments that the delay, if any, occurred. The learned counsel thereafter submitted that there could be a delay in announcing Award but there is no delay in tiling of the Award. The learned counsel in this regard invited my attention to section 14(2) of the Act and Rule 282 of the Sindh Chief Court Rules. The learned counsel further submitted that in such type of situations Article-158 of the Limitation Act is applicable. As per the learned counsel the respondents never approached the Court for extension of time rather the respondents were taking a calculated chance by appearing before the said Arbitrator so that in case the arbitration goes against them they will rile their objections before the Court. As per the learned counsel the present objections are nothing but based on mala fide intention of the defendant and are liable to be dismissed. The learned counsel further submitted that as per Sections 5 and 11 of the Act, no revocation of Award by the Arbitrator is now to be made. In support of his above contentions the learned counsel has relied upon PLD 1990 SC 359, 2003 YLR 3289, PLD 2002 Karachi 427, 2006 CLC 1060 & 1983 SCMR 718.
6. I have heard both the learned counsel at considerable length and have also perused the record and the case laws in this regard.
7. A perusal of the record reveals that it has specifically been provided in the agreement that in case of any dispute or difference between the parties the matter shall be referred to two Arbitrators one to be appointed by each of the parties, whose decision/Award shall be final and binding upon the parties. It is noted that in the present case the plaintiff referred the matter to his Arbitrator for resolving the dispute, on 11-8-2008, however the respondent failed to appoint/nominate their Arbitrator even though they were duly served with a notice to do so.
Though it is claimed on behalf of the defendant that they have appointed their Arbitrator on 25-9- 2008 that was too late in the day. The Arbitratorappointed by the plaintiff, therefore, acted as Sole Arbitrator as provided under section 9(b) of the Act and thereafter proceeded with the matter. The said section reads as under:-- "If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid for fifteen clear days, after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent."
8. The Sole Arbitrator thereafter proceeded with the matter and it is observed that the defendant through his various counsel appointed from time to time duly responded the matter and took active part in the proceedings which is evident from the Award. The Sole Arbitrator thereafter after going through the entire record and the averments filed by the two sides before him announced the said Award. It is further noted that the learned Sole Arbitrator vide his Award, at page-5, has specifically asked the parties to seek extension of time from the Court for giving Award in the case as four months have already been elapsed since he was appointed in the case as Arbitrator and no Award as yet was pronounced by him. However it is noted that when the plaintiff/claimant informed the said learned Arbitrator that in view of the undertaking given by the respondent that they will not oppose the request for extension of time the Award may be given, only thereafter the Award was given by the learned Sole Arbitrator. It will not be out of place to mention here that no objection whatsoever was made by the defendant at that time which clearly depicts that they have not opposed granting of the Award even after the passage of four months time rather a categoric undertaking was given through their letter that they will not oppose the request for extension of time and the Award may be given accordingly.
9. The learned counsel appearing on behalf of the defendant has relied on the decisions referred to above and each one of them is discussed herein below:-- ' In the case of Messrs Fazal Textile Mills Ltd. v. Messrs Sattar Cotton Ginning Factory Ltd. (1982 CLC 97) it has been observed as under:-- "In these circumstances there is no justification at this stage, to extend the time under section 28 of the Arbitration Act as orally prayed by Mr. Khalid Ishaque. I accordingly reject the oral prayer of the learned counsel for extension of time".
' In the case of M/s. Design Group of Pakistan v. Clifton Cantonment Board 1990 MLD 261 it has been held as under:-- "10. The other reason why the plaintiff must succeed, lies in another context namely, an error of lair apparent on the face of the Award and the proceedings. Such Award was given on 5-6-1988, beyond the prescribed period of 4 months, from the date the Arbitrator entered upon the reference, such date being 17-1-1988. On this score, as well, the Award must be set aside."
' In the above case the Court has further observed as follows:-- "From the record, 1 find that the plaintiffs had objected to the Sole Arbitrator giving the award beyond the prescribed time as would be evident inter alia, from plaintiffs letter dated 4-6-1988, which is alleged to have been served in the office of the Sole Arbitrator on 5-6-1988 i.e. The date of the award. This factual aspect has not been denied. Would it then not have been proper .For the Arbitrator to hold off his hands, till time was sought to be extended from this Court and actually extended? Plainly, it would have been so. The Sole Arbitrator, invite of being cautioned, did not desist in making the Award."
In the case of Messrs Ismail Brothers (Karachi) Ltd., Karachi v. Messrs S.M. Fazail & Co., Karachi (PLD 1958 (W. P.) Karachi 158) it has been held as under:-- "The most favourable interpretation to the plaintiff that can be put on the words "taking over the reference" would lie that it means "entering upon the reference" within the meaning of the Arbitration Act. As to what is the meaning of "entering upon the reference" has been considered in various authorities. The arbitrators are said to have entered upon the reference when they have issued notice to the parties intimating the date of hearing".
10. In similar manner the learned counsel appearing on behalf of the plaintiff has also relied on the above referred judgments, which are also discussed as under:-- In the case of WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Company (PLD 1990 Supreme Court 359) it has been held as under:- "Then the appellants were also represented by an Advocate who, besides Haji Sanaullah had also signed the application for extension though according to the learned counsel for the appellants, only once. But they continued to appear till the last date of hearing. Therefore, the appellants are bound by their acts and conduct. There is no doubt that the appellants continued to appear before the arbitrator through their representative and advocate and participated in the proceedings till the last date without any objection and took chance of a favorable decision, therefore, they waived their right to object to the award on that ground, acquiesced in the continuation of the proceedings by the arbitrator and are estopped from challenging the award on that ground".
' It has further been held in the instant decision that:-- "If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, ii cannot be said that the arbitrator acted without jurisdiction. In such a contingency, the principles of waiver and estopped would apply with full force.
12. It is now well-settled that where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period."
' In the aforesaid case it has further been held as under:-- "Accordingly, we hold that the appellants are estopped from challenging the award that it is beyond the time and they waived their objection that the arbitrator ceased to have jurisdiction to proceed with the arbitration as according to their own statement in the appeal the arbitrator had entered upon the reference on 12-7-1975 and issued notice on 17-1-1976 and they continued to appear before the arbitrator without any objection till the last date when the award was given without any objection or demur. If they had raised the objection at the earliest opportunity any of the parties would have applied to the Court for extension of time. Accordingly the award is not invalid on this ground".
' In the case of Syed Mukhtar Hussain Naqvi v. Mst. Hajiani Zubeda and another (2003 YLR 3289) it has been held as under:-- "It needs no authority to say that where as party participates in a proceedings without objecting as to the timeframe cannot subsequently agitate such issue and the extension of time would be presumed on such conduct of the parties. [For reference, one may refer to WAPDA and another v.
Messrs Khanzada Muhammad Abdul Hague Khan Khattak and Company PLD 1990 SC 359 and Engro Chemicals of Pakistan Ltd. v. Trading Corporation of Pakistan 1996 CLC 344)".
' In the aforesaid case it has further been held as under:-- "I have perused the award, the learned Arbitrator is no less a person than a former Judge of the'
Supreme Court namely Mr. Justice (Retd.) Zafar Hussain Mirza, it cannot be said that the Arbitrator could be influenced by exercise of any legitimate right by the plaintiff to seek his removal. The learned Arbitrator has considered all the objections as are raised now before this Court".
' In the aforesaid case it has further been held as under:-- "Unless the perversity on the face of record is shown the award cannot be set at naught. It has been repeatedly held by the apex Court that where even two opinions in respect of the same situation are possible then, this Court does not sit as Court of Appeal to substitute its own opinion, unless it is shown that the opinion expressed by the Arbitrator is so perverse and in utter disregard of the settled principle of law thus cannot possibly be sustained, only then, perhaps. This Court may interfere with such findings. Accordingly, finding no merits in the objections, same are dismissed and the Award is made Rule of the Court".
' In the case of Maj. (Retd.) Humayun Akltar v. Pakistan Defence Officers Housing Authority (PLD 2002 Karachi 427) it has been held as under:-- "The joint statement of exten3ion of time duly signed is available at page 77 of the file of the learned Sole Arbitrator. This objection is contrary to the facts on record as time was extended by consent of parties and the proceedings are legal and valid under the circumstances".
' In the aforesaid case it has further been held as under:-- "The defendants had ample opportunities to raise the objections pertaining to the issues, time period and evidence during the proceedings before the learned Sole Arbitrator. They actively participated, without raising any objection and also consented to enlargement of time with consent of parties. The learned Advocate in spite of his opposition which is understandable, has not been able to substantiate any of the objections so as to constitute an error apparent on the face of the award resulting in misconduct within the meaning of section 30 of the Arbitration Act, 1940. The objections to an award are not to be heard as an appeal and no sufficient cause for not making the award a rule of the Court is on record. Accordingly C.M.As. Nos.2507 of 2001 and 2984 of 2001 are dismissed as not maintainable and the award of the learned Sole Arbitrator is made a rule of this Court".
' In the case of Karachi Dock Labour Board v. Messrs Quality Builders Limited (2006 CLC 1060) it has been held as under:-- "The learned counsel has not been able to satisfy us that the appellant acted with due diligence because instead of taking steps under sections 5 and 11 of the Arbitration Act, 1940 to approach the Court to cancel the appointment of the Arbitrator or stay the arbitration proceedings, the appellant only attended by sending letters from. Time to time to the Arbitrator agitating the same plea.
23. It is settled law that while entertaining an appeal against an order making an award delivered under Arbitration Act, 1940 the rule of the Court, this Court does not sit as a Court of appeal against the judgment and decree passed in the suit, therefore, reappraisal of evidence and .Forming of another opinion contrary to the material placed on record before the Arbitrator is not permissible.
There is plethora of case-laws on this point".
' In the case of Lahore Development Authority v. Messrs Khalid Javed & Co. (1983 SCMR 718) it has been held as under:-- "However, considering the fact that both the Arbitrators were nominees of the petitioner; that a fair and proper opportunity was given by them to both the parties to establish their respective cases and the award shows that every item of the claim made by the respondent has been adequately considered and decided on its merits with the result that while some have been allowed, others, modified, there are some others which have been rejected completely and to top it all no "misconduct", as the said term is understood in law, has been established against them, the learned trial Court was, therefore, fully justified in making the award the rule of the court and the High Court acted properly in dismissing summarily the appeal preferred against the said determination. Accordingly, there is absolutely no ground for interference with the judgment of the High Court".
11. In my opinion nothing much is left to decide in the present case in view of the explicit decision given by the Hon'ble Supreme Court of Pakistan in PLD 1990 SC 359 and other decisions quoted supra, as the defendants in the present case have waived their objections and had continued to appear before the said Arbitrator without any objection till the last date when the Award was given, hence, their raising of the objections at this juncture would not vitiate the Award granted by the said Arbitrator and merely on this ground alone the Award cannot be declared to be invalid or could not be set aside. The Award thus given by the learned Sole Arbitrator in this regard is hereby made rule of the Court.