CH. MUHAMMAD TARIQ, J. --- Through this FAO, the appellants call in question the order dated 21.11.1992 C.LR. passed by learned Senior Civil Judge, Lahore whereby the objection petition filed by the appellants was dismissed. The appellants also impugn the award made by the arbitrator.
2. Precisely stated the facts giving rise to the filing of this FAQ are that a contract agreement under Asian Development Bank Loan was signed by WAPDA (appellants) with M/s. Syed Bhais (Pvt.)
Limited (respondent No. 1) on 03.09.1989 for the supply of 90,000 single phase and 31250 three phase meters. The original Letter of Credit was opened on 30.09.1989. The prerequisites Performance Bond and Advance Payment Guarantee to 10% of the contract value viz. Rs.
98,89,362/26 were to be furnished by M/s. Syed' Bhais prior to operation of Letter of Credit. However, Advance Payment Guarantee was submitted by M/s. Syed Bhais on 30.09.1989. Performance Bond valuing Rs. 91,43,757/- which was not only of less value viz. Rs. 7,45,605/26 but also short of validity period viz, one year was furnished on 22.08.1989.
3. On pointing out by the appellants about the short of value and validity period, respondent No. 1 resubmitted the performance bond with correct value with delay of 27 days, however, with regard to validity period, respondent No. 1 undertook that the validity period of Performance Bond will be extended before expiry of the present one. Since the validity of performance bond could not be extended by respondent No. 1, a dispute arose between the parties and the matter was , referred for arbitration to Arbitrator (Mr. Inayat Ullan Khan).
4. Respondent No. 1 filed claim of Rs. 74,59,189/41. The appellants not only denied the claim of respondent No. 1 but also made counter-claims of Rs. 86,35,065/19. The arbitrator awarded an amount of Rs. 47,39,245/- to respondent No. 1, however, counter-claims submitted by the appellants were rejected. The arbitrator filed the award on 23.04.1992 in the Court of learned Senior Civil Judge, Lahore. The appellants filed objection petition to the award of the arbitrator on 26.02.1992 which was dismissed by the learned Senior Civil Judge Lahore vide - order dated 21.11.1992. Hence this FAO.
5. Learned counsel for the appellants inter alia contends that the order of learned Senior Civil Judge is against the law and facts. The learned Court below has fallen in error by rejecting the objection petition filed by the appellants without framing of issues and without offering the appellants/objectors to lead evidence .In support of the objection petition. The findings of learned Court below that the arbitrator has not mis-conducted in the proceedings is altogether without any basis. Learned counsel argues that bare perusal of award cannot lawfully lead the Court to dismiss the objection petition raised by the appellants/objectors. The. Method adopted by the learned Court below is without jurisdiction and of no substance.
6. -Learned counsel for the appellants further contends that the original letter of credit was opened on 30.09.1989. The pre-requisites i.e. Performance Bond and Performance Guarantee of 10% of the contract value were to be furnished by respondent No. 1 prior to operation of the letter of credit but respondent No. 1 has failed to submit requisite value and its validity. Whereupon objection was taken. The contract agreement was signed on 03.09.1989 which inter alia contains the following terms and Conditions of payment:--- "Terms and Conditions of Payment Payment for material and equipment (Single Phase and Three Phase Energy Meters) against ex- factory price shall be made through letter of credit. The mode of payment shall be as below:
(a) Ten (10%) of the contract value within sixty
(60) days of signing of the contract and on presentation of the Performance Guarantee, Advance Payment Guarantee (see Annexure- D) to cover the full amount of the advance, and a certificate issued by the purchaser approving the Performance ,Guarantee and Advance Payment Guarantee.
(b) Eighty (80%) of the contract value shall be paid within, thirty (30) days of delivery of goods at ex-works and on submission of the inspection certificate(s), warranty certificate and goods received notice, only signed and stamped by the authorized purchaser's representative (consignee) not below the rank of Store Managers. (c) Ten (10%) percent of the contract value of the goods received shall be paid within ninety (90) days of receipt of goods, on submission of claim supported by the acceptance certificate issued ty the Purchaser's representative."
7. Learned counsel for the appellants further argues that the terms of payment as contained in the contract agreement were enforceable and binding on both the parties. It is added that the provisions in the contract agreement have an overriding effect over the provisions contained in the other documents forming part of the contract as per clause 1 of the contract agreement, therefore,.
Order dated 21.11.1992 passed by the learned Senior Civil Judge dismissing the appellants' objection petition be set aside and the award made by the arbitrator be declared as ultra vires the law. In Suport of his contentions, learned counsel for the appellants has relied on PLD 2000 Lahore 157, 1985 SCMR 116, 1989 CLC 2194, 1988 CLC 430 and 1985 SCMR 597.
8. Conversely, learned counsel for the respondents has vehemently opposed this FAO and has contended that the arbitrator has acted fairly and equitably while making the award. The award consists of 40 pages and the arbitrator has dealt with the matter in detail and has announced the award keeping in view all the circumstances of the case. Learned counsel avers that non-framing of issues is not fatal, rather law discourages lengthy procedure while announcing the award, therefore, the FAO be dismissed.
9. Arguments heard. Record perused.
10. The object of getting the dispute settled through arbitration is to bypass the lengthy procedure involved in civil cases. Arbitrator is a domestic Tribunal controlled by chosen representative of the parties who is embodied with the spirit of doing the complete justice between them as early as possible without getting themselves unnecessarily involved in technicalities embodied in procedural law.
11. It is evident from the record that the Court did not prevent the parties from leading evidence at the trial with regard to the controversies and non-framing of issues in such circumstances is inconsequential. If allegations are made in the plaint, they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such points and give decision on merit. It is not incumbent upon the Court that it must in all circumstances frame issues, record evidence and follow the procedure prescribed for decision of the suit.
12. The function of the Court in such-like cases principally is of supervisory nature under Code of Civil Procedure. It is the duty of the Court to give reasonable intendment in favour of the award and lean towards upholding it rather than vitiating the same. Further, the Court shall neither act as a Court of appeal nor override the award through its own judgment nor it shall proceed to scrutinize award in order to discover errors for the purpose of setting aside the award whether errors must be apparent on face of the award and not latent.
13. So far as the allegations of misconduct are concerned , the allegations levelled against the award made by the arbitrator were general in nature. Record, shows that the normal procedure was followed by the arbitrator and all the pleas and objections raised by the parties were considered and answered accordingly. Neither there was any violation of any principle of natural justice nor any conclusion was drawn in a haste manner. The arbitrator in the circumstances had not acted capriciously or arbitrarily. The findings of arbitrator are within the parameters of the submissions made by the parties before him.
14. I am of the .Considered view that it is also no ground to set aside the award that different view was possible if the facts would have been appreciated with a different angle. Arbitrator being the final judge on question of law and fact, his decision is entitled to give weightage unless misconduct against him is not only alleged but also stands proved to the satisfaction of the Court. Moreover, it will not be appropriate for the Court to reappraise the evidence recorded by the arbitrator merely to discover errors or infirmities in the award.
15. Learned counsel for the appellant has also been unable to point out any inherent legal infirmity or defect or want of jurisdiction on the part of the arbitrator who has elaborately and minutely dealt with the claims of the parties. The law produced by the learned counsel for the appellant is not applicable in the matter in hand.
16. In short, the arbitrator is a final judge on question of law and fact, his decision is entitled to give weightage unless misconduct against him is not only alleged but also stands proved to the satisfaction of the Court. Moreover, it will not be appropriate for the Court to reappraise the evidence recorded by the arbitrator merely to discover errors or infirmities in the award. As such, the learned Senior Civil Judge Lahore has rightly dismissed the objection petition filed by the appellant. No interference is called for. Resultantly, this FAO has no force, hence dismissed . FAO dismissed.