NASIR ASLAM ZAHID, J.-----This judgment will dispose of Suits Nos. 907/80 and 908/80. Suit No. 907/80 relates to an Award dated 7th September, 1980 given by the Sole Arbitrator, Sh. Muhammad Islam, a Superintending Engineer of K. D. A., whereby he awarded a sum of Rs. 7,23,300 to the plaintiff (Associated Constructors Limited) against the defendant K. M. C. In Suit No. 908/80 also the Sole Arbitrator was Sh: Muhammad Islam and parties are also the- same and by his Award dated 7th September; 1980 the Sole Arbitrator awarded a sum of Rs. 1,60,647 to the plaintiff. Both these Awards were filed in the Court by the, Sole Arbitrator whereafter notices were issued by this Court to the parties. In both these suits objections have been filed by the defendant K. M. C. In Suit No. 907/80 the objections have been filed in the .Form of an application being C. M. A. No. 4628/80 and in Suit No. 908/80 objections have been filed through O. M. A. No. 4629/1980.
2. The facts giving rise to these cases are that the work of construction of Major Ziauddin Abbasi (Shaheed) Hospital, Nazimabad, Karachi, was awarded by K. M. C to the plaintiff. The work was awarded in two phases, Phase I and Phase II. Suit No. 907/1980 relates to the dispute in connection with Phase II and Suit No. 908/1980 relates to claims in respect of Phase I. The cost of the project of Phase I based on tendered amount was Rs. 53,54,904 and the contractual period of completion for this work was two years. The date of commencement was May, 1969 and according to the contract the scheduled date of completion was May. 1971 ; whereas the work was actually completed in December, 1973 i.e. Two years and 7 months after the scheduled date of completion. In respect of Phase. II the cost of project based on tendered amount came to Rs. 33,53,070 and the date of commencement of work of Phase II was August, 1971 and the scheduled date of completion was February, 1973 i.e. One year and 6 months; whereas the work was actually completed in December, 1973, i.e. a delay of 10 months.
3. Certain disputes arose between the parties upon the completion of the above works and the plaintiff made a claim of Rs. 10,45,576.49 in respect of Phase No. I and a claim for a sum of Rs.
21,43,543.34 in respect of Phase No. 11. The claims were referred to one Mr. G. S. Siddiqui, a Superintending Engineer of K. M. C. By a consent order of this Court. However, as the said Arbitrator, G. S. Siddiqui, went abroad on training, he was removed and by the consent of the parties, the present Sole Arbitrator was appointed to decided the two claims.
4. This Sole Arbitrator previously gave two separate awards both dated 23rd December, 1978. In respect of the claim made by the plaintiff relating to Phase No. 1, the Sole Arbitrator awarded a sum of Rs. 1,63,410.49 and in respect of Phase No. 11, the Sole Arbitrator awarded a sum of Rs. 7.92,306.
These two previous awards were filed in this Court and objections were filed against both the said awards. By judgment dated 16th January, 1910 a learned single Judge of this Court (Ajmal Mian, J.) set aside these . Two previous awards and remitted the same to the same Sole Arbitrator for reconsideration with the direction that he should give his awards within two months from the date of re--entering upon the references. The reason for setting aside the previous awards was that the last date of hearing, according to the diary sheet of the Arbitrator, was 29th April, 1978 and on that date the cases were not reserved by the. Arbitrator for giving awards and the proceedings were not concluded, and without giving any further notice, after a period of about 8 months, the Arbitrator gave previous two awards on 23rd December, 1978. By letter dated 18th December, 1978, K. M. C.
Had requested the Arbitrator to fix a date for hearing but the Sole Arbitrator did not fix any date but gave the awards on 23rd December, 1978. The learned single Judge was of the view that the Arbitrator should have provided further opportunity of hearing if a request to that effect was made by one of the parties, before the pronouncement of the awards. For this reason the two previous awards were set aside and remitted to the Sole Arbitrator for, reconsideration. I may here reproduce a. Passage from the judgment dated 16th January, 1980 of Ajmal Mian, J. In suit Nos. 68 and 69/1979 : "Mr. Muslim Naqvi, learned counsel for the defendant submits that his client has no doubt. About the integrity and honesty of the learned Arbitrator but the only grievance is that inspite of the fact that the defendant, before the. Pronouncement of the awards, through its letter dated 18th December, 1978 requested the learned Arbitrator to fix a date for bearing, did not fix any date and gave the awards on 23rd December, 1978."
It may also be mentioned here that the two previous awards dated 23rd December, 1978 of the Sole Arbitrator were speaking awards.
5. After the previous two awards were set aside in Suit Nos. 68/1979 and 69/1979, the matters were referred again to the Sole Arbitrator for re-consideration. The Sole Arbitrator framed issues, recorded evidence of the defendant and after hearing the arguments of the parties, delivered the two Awards both dated 7th September, 1980. As against the claim of Rs. 10,45,576.49 made by the plaintiff in respect of the contract relating to phase I, the Sole Arbitrator by his award dated 7th September, 1980 awarded a sum of Rs. 1,60,647.It may be noted here that in respect of this very claim made by the plaintiff, in the previous award dated 23 December, 1978 the Sole Arbitrator had awarded a sum of Rs. 1,63,410.49. As against the claim of Rs. 21,43,543.34 made by the plaintiff in respect of contract relating to Phase 11, the Sole Arbitrator by his other Award also dated 7th September, 1980 awarded a sum of Rs. 72.300 to the plaintiff. It may be noted here that in respect of this very claim the Sole Arbitrator by his previous award, which was set aide, had awarded a sum of Rs. 7,92,306 to the plaintiff. The other point of significance to note is that the two awards dated 7th September, 1980 which have been challenged in the present proceedings by the K. M. Care non speaking awards.rd
6. I have heard Mr. S. Muslim Naqvi, learned counsel for the K. M. C. In support of the objections to the two awards and Mr. M. A. Rafiq Khan, on behalf of the plaintiff. Before I deal with the contentions raised by learned counsel for the defendant in support .Of his attack on the two non-speaking Awards, it may be mentioned here that the case of the plaintiff in the two claims was that the works under both the contracts were required to be completed within prescribed periods and on account of the actions and delays on the part of the K. M. C. The plaintiff could not complete the works within the prescribed periods anal it took much more time in both the Phases to complete the works, and on account of this delay, damages were suffered by the plain--tiff for which and on certain other counts, claims were filed by the plaintiff.
7. Learned counsel for the K. M. C. Had first contended that both the previous awards dated 23rd December, 1978 were speaking awards in which the same Arbitrator had given reasons but the present two awards dated 7th September, 1980 are both non-speaking awards. According to learned counsel for the defendant, as the previous awards were speaking awards; the Sole Arbitrator was in law bound to give reasons in the present Awards also. The law is clear on the point that an Arbitrator is not required by law to give reasons in his award and an award without reasons, i.e. a non-speaking award, cannot be challenged on the ground that reasons have not been given: In my view even if reasons had been given by the Sole Arbitrator in the previous two awards dated 23rd December, 1970, it was not necessary under the law for the same Arbit--rator, on the awards being remitted to him for reconsideration, to again give reasons for the Awards. The Sole Arbitrator has not committed any illegality in not giving reasons in the present awards.
8. The second contention of learned counsel for the K. M. C. Was that there was hardly any evidence to support the Awards given by the Sole Arbitrator. On a specific question asked by the Court. Mr. S. M. Muslim Naqvi very frankly stated that there was some evidence and that it was not a case of "no evidence". If it had been a case of no evidence" the Court might have looked into the evidence on record to satisfy itself whether in fact it was a case of no evidence. However, as it has been admitted by learned counsel for the K. M. C. That there is some evidence, the present awards being non-speaking awards, the court will not look into the record and evidence. Insufficiency of evidence is no ground for setting aside a non-speaking award.
9. The third contention of learned counsel for the defendant was that the Sole Arbitrator bad framed issues in both the cases but in the Awards he has not given separate findings on each issue. Under the law an Arbitrator is not required to give separate finding on each issue framed by him. In the present case the issues were framed by the Sole Arbitrator for his own convenience and it was competent for him' to give a lump sum award without giving separate findings on each issue. What is required under the law is that the Arbitrator should give an intelligible award disposing of the controversy between the parties. A perusal of the two Awards in the present cases shows that adequate opportunity was given by the Sole Arbitrator to both the parties to lead oral as well as documentary evidence and after going through the record and after hearing .The arguments of the parties the two awards were given by the Sole Arbitrator. I do not find any illegality on the face of two Awards.
10. The next objection by the learned counsel for the defendant was that the two contracts entered into between the patties were lump sum contracts and no claim could be filed or entertained on account of fluctua--tion of market rates. Further according to the learned counsel as the two contracts were lump sum and there was no provision in the two contracts that damages could be granted, the claims made by the plaintiff in both the cases on account of damages for delay were incompetent. Mr. M. A. Rafiq Khan, learned counsel for the plaintiff, contended that the claims of the plaintiff were not in respect of. Any escalation on account of fluctuation of market rates for the period provided by the contracts but the claims were on account of delay in the completion of the contracts on account of K. M. C. And because of this inordinate delay 'damages were suffered by the plaintiff .And the claims made by the plaintiff were on account of damages in this regard. In my view the fact that the two contracts were lump sum contracts did not debar the plaintiff from making claims on account of damages suffered for the reason of delay in the completion of the works responsibility whereof, according to the plaintiff, rested on the shoulders of K.M.C. As regards the contention of Mr. S. M. Muslim Naqvi, that as there was no provision in the contracts that damages could be granted, no damages could in law be granted, I find no merit in such contention. If, for instance, a contract was required to be completed within one year by the contractor but on account of delay, responsibility whereof rested on the owners, the completion takes place in 5 or 6 years, .The owners would obviously be responsible for damages to the contractor if any damages are suffered by the contractor on account of such delay, provided there was no clause in the contract debarring the contractors from claiming damages in such an event.
There is no such clause in the contracts between the parties.
11. The next submission of the learned counsel for the defendant, was that written arguments had been submitted by the K. M. C. To the Sole Arbitrator but the Sole Arbitrator refused to accept the written arguments. I do not find any reference to such action in the Awards. However I find that the Arbitrator has very clearly mentioned in the Awards that oral argu--ments of the parties were heard. On a question from me, learned counsel for the defendant stated that no allegation was being made by the defendant against the Sole Arbitrator as regards his honesty or integrity. In view of the fact that oral arguments had been heard by the Sole Arbitrator, even if it is assumed that the Sole Arbitrator did not accept the written arguments from one of the parties. I do not find this act on the part of the Sole Arbitrator to be such as to sustain an attack on the legality of the Awards.
12. The last objection of the learned counsel for the defendant was that the Arbitrator should have done justice in accordance with law and in the present two cases he had not done justice in accordance with law. I do not find anything on the face of the two awards to support the contention of the learned counsel for the defendant. The two Awards are very clear in which the Sole Arbitrator has referred to the claims and replies filed by the parties and the oral and documentary evidence led by the parties and the fact that several hearings took place before him and that the Awards were given after hearing oral arguments from the parties. Honesty and integrity of the Sole Arbitrator is not challenged. There is nothing on the record to show that the Arbitrator has not decided the cases in accordance with law or that he has acted in manner which is not in accordance with or authorised by law.
13. Mr. S. M. Muslim Naqvi, learned counsel for the defendant had in support of his contention, relied upon the following judgments : Ghulam Rasool v. Government of Azad Jammu and Kashmir (PLD 1971 Azad J & K 127), Pakistan v. Asain Associated Agencies(PLD 1974 Kar. 155), Rachna Traders v.
Government of Pakistan(PLD 1974 Note 89 at p. 138), Brooke Bond (Pah isfan) Ltd. v. Government of Sind (PLD 1977 SC 237), Pakistan v. Rizvi and Company ()PLD 1979 Kar. 744 and Nawab Brothers v.
Government of Pakistan (PLD 1980 Kar. 600).
The above judgments were either not relevant or did not support the contentions of the learned counsel. In P. L. D. 1971 A. J. And K. 127 reference has been made to several judgments of the Superior Courts of the Indo-Pakistan sub-continent and then certain principles drawn from the decided cases have been enunciated for deciding the question whether in a particular case the arbitrator is guilty of misconduct. None of the principles expressed in this judgment are applicable to the two Awards in question.
PLD 1974 Kar. 155 (a D. B. Decision) it was held that the arbitrators cannot traverse beyond the reference or submission, and, if they do so and decide or determine a matter which has not been referred to them, they would be acting without jurisdiction. This principle is not relevant to the instant cases as the Sole Arbitrator has not decided any--thing which was not referred to him. In fact no argument regarding absence of jurisdiction was raised.
I n PLD 1979 Kar. 744 as well as Y in PLD 1980 Kar. 600 speaking awards were under challenge whereas in the instant cases the two Awards given by the Sole Arbitrator are non-speaking awards.
14. The two Awards in these suits are non-speaking awards and inthis connection I may refer to the order of the Supreme Court of Pakistan in the case of Mushtaq Ahmed v. Hajra Bi (19 80 SCMR 394).
"The arbitrator has not given any reasons whatsoever for the payments ordered by him. As his silence about the reasons for his decision are like that of the sphinx, could any Court have read an error in the award much less an error on the face of the award? The question is of the meaning of the words "an' error apparent on the face of the award" and we cannot do better than reproduce the classic observations of Lord Dunedin in Champsev Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd. AIR 1925 P C 66 :-- An error in the law on the face of the award means in their Lordships' view, that you can find in the award or a document, actually incorporated thereto; as for instance, a note appended by the arbitrator stating the reasons for his Judgment, some legal pro-- position which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract onwhich the parties' rights depend to see if that contention is sound. We are in respectful agreement with these observations, which were approved by this High Court in Messrs A. Z. Company v. MIS. S. Maula Bux Muhammad Bashir PLD 1965 SC 505. Therefore, the petitioner can succeed only by showing that the award itself or a note attached to it contained some legal propositions which were erro--neous. But, as the arbitrator has not given any reasons whatever for his findings it follows that this sphinx like toward could not possibly be set aside on the ground of an error apperent and the view taken by the lower Courts was in flagrant disregard of the settled principles of law and the view taken by the High Court was the only possible view."
15. The objections to the two Awards made by the defendant in these suits have no substance and as a result C. M. A. No. 4628/80 in Suit No. 907/80 and C. M. A. No. 4629/80 in Suit No. 908/80 are dismissed and the two Awards, both dated 7th September, 1980 are made rules of the Court and I pass decrees in terms thereof. The plaintiff shall also be entitled to costs in both the suits.