' CH. SHAHID SAEED J.---By way of filing this writ petition, the petitioner has challenged the legality of judgment dated 9-12-2006 passed by learned Additional District Judge, Bhakkar who dismissed ' the revision petition filed by the petitioner and maintained the order dated 2-12-2005 passed by learned Civil Judge, Bhakkar whereby the award dated 22-4-2004 was set aside.
2. Succinctly, the facts leading to the filing of this writ petition are that the plaintiff Muhammad Nadeem was Distributor of Lever Brothers of Pakistan (presently Unilever Pakistan Ltd.) vide agreement dated 23-12-1998; that the Unilever Pakistan terminated the distributorship of the plaintiff under Clause 23 of the agreement; that the plaintiff Muhammad Nadeem filed the suit for declaration and permanent injunction praying therein that the Unilever be restrained from cancelling the distributorship of the plaintiff and that the plaintiff be declared to be the distributor of Unilever in Nawan Jandanwala. The suit was hotly contested by the respondent-Unilever who also filed an application under section 34 of the Arbitration Act, 1940 for settlement of the dispute through arbitration, as provided in clause 27 of the agreement. With the consent of the parties, the learned trial court vide order dated 27-11-2002 referred the matter to arbitrator to be appointed by the President of the Overseas Chamber of Commerce who appointed Mr. Justice (R) Nasir Aslam Zahid as arbitrator.
3. The arbitrator keeping in view the divergent pleadings of the parties framed issues and after hearing the parties and perusing the record made the award dated 22-4-2004 whereby he held the petitioner-plaintiff entitled to get Rs,16,49,033 as damages. The respondent-Unilever filed objection petition raising objections that the arbitrator has failed to take into consideration the agreement between the parties as well as the law because neither there was any prayer in the plaint for damages nor the agreement had any such clause. Ultimately, the learned trial Court vide order dated 2-12-2005 set aside the award dated 22-4-2004 mainly on the ground that the order dated 27-11-2002 whereby the matter was referred to arbitration carries no specific reference, therefore, the award was invalid in terms of section 30(c) of the Arbitration Act, 1940. The revision petition was filed by the petitioner against order dated 2-12-2005 which was dismissed by the learned Additional District Judge, Bhakkar. Hence this writ petition has been filed.
4. Learned counsel for the petitioner inter alia contends that the respondent-Unilever did not raise any objection earlier with regard to legality or validity of order of reference dated 27-11-2002, he submitted to the jurisdiction of the learned arbitrator and when the arbitrator decided the matter against the respondent, then he challenged the order of reference which was not sustainable when the award had been made and announced. Learned counsel avers that the matter was referred to arbitration in accordance with clause 27 of the agreement between the parties on the request of the respondent, therefore, the award was valid and lawful. He maintains that under section 73 of the Contract Act, 1872, the damages can be granted to a party, even if there was no such clause in the agreement; that the judgment/order passed by learned courts below are against the law and facts, therefore, the writ petition in hand be allowed as prayed for and the impugned judgment/order passed by learned courts below be set aside.
5. On the other hand, learned counsel for the respondent-Unilever has vehemently opposed this writ petition and supported the impugned judgment/order. His main contention before this Court is that neither there was any prayer made in the plaint for damages nor the agreement has any such clause. Further, there was no specific reference or specific time for determination of issues between the parties; therefore, the award was rightly set aside by the learned courts below. He avers that the writ petition being without any force deserves dismissal. In support of his contentions he has relied on the law laid down in cases Messrs Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. (PLD 1985 SC 69). Messrs Sirmur Chemical and General Industries Ltd. Nahan v. The Union of India and others (AIR 1958 Himachal Pradesh 20), Syed Arif Ali Sabir v. Abdul Samad through LRs and 2 others (2008 YLR 2309) and Messrs Farooq & Co. v. Federation of Pakistan and 3 others (1996 CLC 2030).
6. Arguments heard. Record perused.
7. The record shows that the petitioner and the respondent-company (Unilever Pakistan Ltd.) entered into an agreement dated 23-12-1998 whereby the petitioner-plaintiff was appointed as Distributor in. Nawan Jandanwala, Kalurkot, District Bhakkar. However, the respondent company under clause 23 of the agreement terminated the agreement on 27-8-2001, therefore, the instant suit was filed. A During the proceedings, the respondent-company filed application under section 34 of the Arbitration Act, 1940 for settlement of the dispute between the parties through arbitration as per clause 27 of the agreement. With the consent of the parties, the matter ,was referred to arbitration and Mr. Justice (R) Nasir Aslam Zahid was appointed as arbitrator. Both the parties made a joint statement before the arbitrator on 16-10-2003 that they will abide by the award made by the arbitrator. The issues emerging out of the pleadings and positions of the parties were settled on 25-4-2004 with the consent of the parties. It is worth A mentioning here that the issues include the claim of the petitioner for damages. After hearing the parties, the arbitrator held entitled the petitioner to get Rs,16,49,033 as damages. No objection was raised before the arbitrator with regard to scope of reference or upon the jurisdiction of the arbitrator. This Court observes that when issues were framed with the consent of the parties which inter alia include the damages, the job of the arbitrator as well as the scope of reference stood identified and limited to the issues which came out of the divergent pleadings of the parties and were settled with consent of the parties. Both the parties throughout the arbitration proceedings admitted to the jurisdiction of the arbitrator and raised no objection on the credibility of jurisdiction of the arbitrator or the scope of reference. It was only when the arbitration award was made and announced, the respondent company, seeing the award unfavourable to it, took certain objections with regard to scope of reference for determination of the dispute, non- B mentioning of specific time, non-provision of damages clause in the agreement and non-praying of damages in the plaint, however, he, at that stage, could not be allowed to point out any lacuna, whatsoever, in the order of reference or the jurisdiction of the arbitrator when he throughout has admitted to the jurisdiction of the arbitrator, joined the arbitration proceedings as well as the process of framing of issues without raising any objection on scope of reference or on the credibility or jurisdiction of the arbitrator.
8. If some matter is referred to arbitration under section 20 or 34 of the Arbitration Act, 1940, the parties are at liberty to submit their claims and pleadings before the arbitrator. The petitioner- plaintiff put his claim for damages for Rs,66,49,712. The respondent did not object to the scope of reference before the arbitrator at that time and when the arbitrator made the award allowing damages to the tune of Rs,16,49,033, then the objections like scope of reference and non-provision of damages clause in the agreement were taken. I am fully convinced that when the petitioner- plaintiff submitted his claim for damages before the arbitrator and the arbitrator also framed issues on the point, there was ample opportunity for the respondent to take objections that neither scope of reference nor agreement allows damages but he completely failed. When the arbitration award has been made after framing of issues and hearing the parties providing them fully opportunity, no party can be allowed to raise objections on the previous stage, i,e, scope of reference and non-provision of clause of damages in the agreement.
9. The record highlights that it was the respondent who filed application for settlement of the dispute through arbitration. Furthermore, the order of reference was appealable under section 39 of the Arbitration Act, 1940, however, the respondent company did not file any such appeal and preferred to participate in the arbitration proceedings and only raise objections after the award was announced. At such a belated stage, the objections taken by the respondent-company were neither sustainable under the law nor the courts should have entertained them.
10. So far as the contention of respondent's side with regard to no specific time mentioned in the order of reference is ,concerned, I am of the view that when the arbitration proceedings continued after the period of limitation and none of parties raised objection to it before the arbitrator, then the delay was to be considered due to the fault n the part of all the parties and the award, even if submitted beyond the period of limitation, was acceptable and could not be said that the arbitrator had acted without jurisdiction. Reliance is placed on the law laid down in cases. Messrs Quality Builders Ltd. v. Karachi Metropolitan.Corporation (1999 CLC 1777) and WAPDA and another v.
Messrs Khaznzada Muhammad Abdul Haque Khan Khattak and Co. (PLD 1990 SC 359).
11. It is clear from the award that the parties were given C fullest opportunity of stating their respective cases by the arbitrator and the parties put their respective version and then arbitrator made award. In the circumstances, the court was obliged to presume that the controversies have been settled finally through the disputed award until and unless there is some illegality or irregularity on the face of the record. Further, the award is not hit by section 30 of the Arbitration Act, 1940.
12. The next contention of learned respondent's counsel is that there is no provision in the agreement for damages. However, bare perusal of section 73 of the Contract Act, 1872 makes it crystal clear that the damages can be claimed even if there is no clause in the agreement. In my view, the award was in accordance with law and could not be set aside and the learned courts below have erred in law while setting aside the award. Law cited by learned counsel for the respondents is irrelevant to the dispute in hand. Reliance is placed on the law laid down in case Messrs Agrimpex Trading Company Ltd. v. Trading Corporation of Pakistan (Pvt.) Ltd. (2004 M LD 477).
13. The outcome of the whole discussion is that the damages can be allowed under section 73 of the Contract Act, 1872 even if there was no damages clause in the agreement. The arbitrator framed issues including that of damages with the consent of the parties; therefore, these c pleadings will be considered as part of prayer of the plaint. The respondent throughout arbitration proceedings submitted to the jurisdiction of the arbitrator, therefore, after having been announced the award, the objections on the scope of reference are untenable. The award made by the arbitrator is in accordance with law. The learned courts below have failed to interpret the law in its true spirit and have committed illegality while passing the impugned judgment/order. Resultantly, this writ petition is allowed as prayed for and the impugned judgment 9-12-2006 passed by learned Additional District Judge, Bhakkar and order dated 2-12-2005 passed by the learned Civil Judge, Bhakkar are set aside.