' ATHAR MINALLAH, J.---This order is directed to dispose of C.S. No,57 of 2013.
2. The facts of the case, as narrated in the Award dated 29-6-2013 2013 (hereinafter referred to as an "Award") are not disputed.
3. Briefly, the National Highway Authority (hereinafter referred to as the "Authority") and, Messrs Zarghoon Enterprises (hereinafter referred to as the "Contractor"), entered into a contract for the construction of the project titled, "Rehabilitation and Widening of Coastal Highway, from Gharo to Keti Bunder Road Project-Package-HI" (hereinafter referred to as the "Project"). During the construction, quantities of one BOQ Item No, SP-24 (Formation of Embankment in Water Logged Area), increased from the given/agreed quantity. Pursuant to this increase, the Contractor submitted a variation order and claimed the BOQ Rate, as was already agreed at the time of executing the contract. The Engineer, in accordance with the terms of the contract, initially fixed the rate at Rs,1147 per CUM, which was later revised on the request of the Authority. It is pertinent to mention that this revised rate was lesser than the rate, as had been agreed in the contract. The Authority did not respond to the rate proposed by the Engineer and, therefore, the Contractor, pursuant to clause 67.1 of the contract, sought the Engineer's decision. The Engineer gave his decision and confirmed / upheld his earlier determination. The Authority did not agree with the Engineer 's decision and, therefore, invoked the Arbitration Clause. The Authority proposed the name of Justice (Retd) Nasir Aslam Zahid, as the sole Arbitrator and, after acceptance by the Contractor, arbitration proceedings were initiated without the intervention of the Court.
4. After the completion of the arbitration proceedings, the sole Arbitrator announced his Award dated 29-6-2013. It is important to mention that on the basis of the claim / reference filed by the Authority, the sole Arbitrator framed four issues. Both the parties were heard and each issue was discussed in detail. After the announcement of the Award, the Authority filed its objections under section 33, read with section 17 of the Arbitration Act, 1940 (hereinafter referred to as the "Act") while the Contractor urges that the Award be made the Rule of the Court.
5. Mr Zahid Idrees Mufti, A.S.C., learned counsel for the Authority contends that; the Award has been filed by a person who was not authorized under the law, and in this regard he states that the Board Resolution has not been filed by or on behalf of the Contractor. Reliance is placed on the cases titled as Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550) and Messrs Nishat Chunian Ltd. v. Province of Punjab through Secretary, Local Government (2012 CLD 1288); the Award is not properly stamped; the main objection of the Authority relates to the findings of the learned sole Arbitrator on issue No,II; the Engineer could not have fixed the rate without the approval of the Authority; the rate fixed by the Engineer is arbitrary; the provisions of the contract, particularly clauses 5.1 and 5.2, have been misinterpreted-and thereby, the learned sole Arbitrator has committed misconduct; reliance is placed on the case titled as Messrs Jaffar Bros Ltd., v. Islamic Republic of Pakistan and another (PLD 1978 Karachi 585). Further contends that the Arbitrator instead of construing the contract in accordance with the intentions of the parties, has given his own construction or interpretation of the relevant clauses, thus the Award is invalid.
6. On the other hand, Mr. Muhammad Masood Khan, A.S.C., the learned counsel for the Contractor has drawn the attention of this Court to the Board Resolution, placed on record and has further demonstrated that the Award is properly stamped. It is contended by the learned counsel that; the Award has been passed after extensive deliberations and giving the parties a reasonable and proper opportunity of being heard. There is nothing on the face of the Award nor discoverable by reading the Award that there is any error or infirmity, so as to render the Award as invalid; the Award is well reasoned and each issue has been addressed and decided in detail; the question relating to the fixation of the rate has been discussed in detail, including the provisions of the contract and there is no error nor the clauses have been misinterpreted. In support, the learned counsel has placed reliance on the cases titled as Mian Corporation through Managing Partner v.
Messrs Lever Brothers of Pakistan Ltd., through General Sales Manager Karachi (PLD 2006 SC 169), Messrs Joint Venture KG/RIST v. Federation of Pakistan (PLD 1996 SC 108), Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCMR 1903), President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Naqvi (2004 SCMR 590), Ascon Engineers (Pvt.) Ltd. v. Province of Punjab (2002 SCMR 1662) and Lahore Development Authority v. Khalid Javed Co. (1983 SCMR 718).
7. After hearing the learned counsel for the parties and perusing the record with their able assistance, it is held as follows:--
8. It is an admitted fact that the parties through insertion of an arbitration clause in the contract had agreed to refer their respective disputes to a forum of their choice. The sole Arbitrator was proposed by the Authority and duly consented by the Contractor; whereafter, the arbitration proceedings had commenced. The Arbitrator announced the Award dated 29-6-2011. The objections raised and argued before this Court, mainly relate to the findings of the learned Arbitrator on issue No,II i,e, "Whether the Engineer under the contract has powers to fix the rates pursuant to clause 52.2 of the contract in respect of the increased quantities". The sole Arbitrator has discussed this issue in detail and has examined relevant clauses of the contract. There is no force in the argument that the Engineer had no authority to fix the rates without approval of the Authority. The relevant clauses have been reproduced by the learned Arbitrator in the Award and the same have been discussed in detail. The leaned counsel for the Authority has not been able to persuade this Court that the Arbitrator has misinterpreted the clauses or any provision of the contract. The Authority has not been able to point out any error on the face of the Award, so as to render it invalid.
9. It is noted that in the present case, the parties voluntarily had agreed to refer their respective disputes to an Arbitrator, appointed under the "Act" without intervention of the Court. A sole Arbitrator was proposed by the Authority and consented to by the Contractor. It is by now settled law that an Arbitrator is the final judge of questions of law and fact and that his decisions ought to be honoured, unless it can be explicitly demonstrated that he or she had committed misconduct and the same was established to the satisfaction of the Court. The Court while examining the validity of an Award, cannot act as a Court of appeal. It is not open to the court to reappraise evidence recorded by the Arbitrator. Any alleged error or infirmity in the Award, should manifestly appear on the face of the Award. The Court cannot travel beyond the Award and make inquiries and investigations in the proceedings and documents, which do not form part of the Award. In order to construe misconduct on part of the Arbitrator, it is essential that the grounds are raised with precision and allegations are pleaded clearly, rather being evasive in nature. It is not for the Court to 'fish for latent errors in arbitration'. These principles and law have been laid down in the light of the object and purpose intended to be achieved by the Arbitration Act, 1940. Reliance is placed on the cases titled as A. Qutubuddin Khan v. CHEC Milawala Dredging Co. (Pvt.) Limited (2014 SCMR 1268), A. Qutubuddin Khan v. CHEC Millwala Dredging Co. (Pvt.) Limited (2014 CLD 824), Federation of Pakistan through Secretary M/o Food, Islamabad and others v. Messrs Joint Venture Kocks K.G./Rist (PLD 2011 SC 506), Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan an through General Sales Manager Karachi (PLD 2006 SC 169), KG/RIST v.
Federation of Pakistan (PLD 1996 SC 108), Messrs Tribal Friends Co. v. Province of Balcohistan (2002 SCMR 1903),President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Naqvi (2004 SCMR 590), Ascon Engineers (Pvt.) Ltd., v. Province of Punjab (2002 SCMR 1662) and Lahore Development Authority v. Messrs Khalid Javed and Co., (1983 SCMR 718).
10. The recent trend throughout the world is to minimize the interference by the Courts, when the parties have voluntarily chosen a forum of their own choice. The Courts can interfere to the extent as provided in the Act. It is emphasized that expeditious and inexpensive Dispute Resolution is the life blood for a vibrant economy and inevitable for economic growth and progress. The Courts have a crucial role to play in ensuring that the commitments made between the parties are honoured and implemented. It is the duty of the Courts to promote certainty by enforcing the binding commitments made by the parties.
11. Lastly, it is pertinent to observe that the tendency by statutory authorities and government departments to create impediments, either inadvertently or knowingly, in giving effect to arbitration clauses has been consistently deprecated or taken unfavorably by superior courts. The conduct of the appellant in the present case is an illustration of what has been observed by the august Supreme Court in the case of "1983 SCMR 718", as follows:-- "it is high time that Government Departments should accept more gracefully the awards made by forums selected by themselves and manned by their own officeRs, They would be well advised if they took greater pains and more care than they are doing at present in preparing and prosecuting their case before the Arbitrators rather than in subsequently expending their time, energy and efforts on fruitless objections and appeals against the awards made against by, them, for which they are mostly themselves to blame".
12. In the light of the above, there is no force in the objections filed by the Authority and the same are, therefore, dism issed. The Award, as a consequence is made "Rule of the Court". This Court further expects that the Authority and the contractor shall enforce and implement the Award without further delay.