AGHA ALI HAIDER, J.---This appeal from the judgment and decree of a learned Single Judge of this Court dated 15-11-1965, arises in the following circumstances:
2. A dispute arose between the appellants and the respondents in respect of 1000 bales M-100 Sg.
Setharja. The: parties referred the dispute to arbitrators. The arbitrators. Having failed to agree between themselves, Mr. Mumtaz A.I Khan, the umpire, after hearing the parties, gave the award on 6-6-1962. At the request of the respondents, the umpire filed the award on 30-5-1964 with the prayer to make ft the rule of the Court. The parties were served with the notices of these allegations on 30-10-1964. On 25-1-1965, the appellants filed an application under section 17 of the Arbitration Act, by way of written statement, praying that in view of the patent errors on the face of the record, the award should not be made rule of the Court. The objections raised were that the umpire had calculated the damage on the basis of spot rate, while according to the terms of the contract, Satta rate of March 4, FRG 62 was to be taken. The second objection was the reference to arbitration was ultra vires and Invalid, as the Karachi Cotton Association did not recognize plinth selection contract. The third objection was in regard to the pecuniary jurisdiction of this Court, on the allegation that the amount of damages would be below its. 25,000.00. It appears-- that on 18- 1-1965, the appellants had filed objections to the award under section 33 of the Arbitration Act, in similar terms. Later on a third application was filed containing the prayer, that the award be referred to the umpire, for filing in the District Court. The respondents also very much more than a month after the service of notice filed an application under section 16 of the Arbitration Act, read with section 151 of the Code of Civil Procedure, for remitting the award to the umpire, for calculating the damages, as he had stopped short with giving only the basin for calculating the award. The application of the respondents was granted per order dated 31-3-1965 and the award was remitted to the umpire. The umpire after hearing both the parties, calculated the quantum of damage at Rs. 25,461.00 and sent back the award. As the amount in question was within the pecuniary jurisdiction of this Court the application riled by the appellants on that score came to be dismissed. The learned Single Judge also dismissed the applications under sections 17 and 33 of the Arbitration Act as he found that though the appellants were duly served with the notice of the filing of the award by the umpire along with a copy of the award, they had not cared to file objections within a period of 30 days, as required by Article 158 of the Limitation Act. He therefore made the award rule of the Court resulting in this appeal.
3. It is to be seen, that the umpire, in his award dated 6-6-1962, had given the appellant an option to take or refuse the delivery of the goods in question. In case of refusal, they were to pay the invoicing back differences on the rates as agreed to between the parties. It is true, that he had not calculated the figure, or to be more precise, the compensation to be paid by the appellants, but when the award was remitted, his duties could not exceed those which were necessary to give effect to the order of the Court. It was observed in Johnson v. Latham ((1851) 80 L J R B 235) as given in Russel on the Law of Arbitration, 17 Edition, p. 353:- "Suppose an award is good as to three points and bad as to the fourth, and sent back to that alone, as at present advised. I am of the opinion that the arbitrator is functus officio as to three and cannot alter his judgment as to them."
The learned author goes on to say:- "And he has only power, it would seem, to reconsider the matters referred to him in some way which does not amount to a re-determination of matters already decided by his award. The arbitrator must carry out and abide by the order remitting the matter to him."
4. Further, as is to be found in Russel's Law of Arbitration, page 352:- "The Court will not set aside an award can the ground, that the arbitrator has exceeded his authority, when the party complaining has made no protest at the hearing before the arbitrator."
Demonstrably, no such protest had been registered before they Umpire. The award was remitted by the learned Single Judge, to the Umpire merely to work out the compensation. It had already determined the rights and the liabilities of the parties, though not the whole cause, and therefore it was open to the appellants to prefer an appeal against the said order. See Industrial Sale and Service, Karachi and another v. Archifar Opal Laboratories Ltd. (PLD 1969 Kar. 418). That was not done. The award was sufficiently certain on the principle that, that is sufficiently certain, which can be made certain. See Broom on Legal Maxims, 1911 Edn p. 478 and Beale v. Beale (1635 Cro. Car: 383). In the case of M/s. Alhaj Muhammad Karamat A.I do Co., Ltd. v. M/s. Amin Jute Mills Ltd., Chittagong (PLD 1961 Dacca 452) there is a reference to the observations of Caushing, J. In Strong v. Strong ((1852) 9 Coashing 560), wherein it was observed that:- "When it is laid down as a final principle of law, that an award should be final, the meaning is not that nothing should remain to be done to complete the execution of the award, but that the thing to be done shall have been determined and defined to reasonable certainty."
It is also an axiomatic principle of law, that if an award is otherwise valid, the Courts of law cannot interfere and review it (See Saleh Muhammad Umar Dossal v. Mathurral Messamal (54 I A 427)) I am clearly of the opinion that the award was beyond any reproach.
5. The applications under sections 17 and 33 of the Arbitration Act had admittedly been filed by the appellants long after 30 days of the service of the notice of the earlier award. It was held in A. R.
Savkar v. Amritlal Kalidas and others (AIR 1954 Bom. 293) that,- "the only proper interpretation to give to section 17 is that it contemplates gall applications to set aside an award and all applications to set aside an award are filed under section 33 and not underth section 30. Section 30 does not deal with applications to set aside an award at all. It deals with what the powers of the Court are when an application is made to set aside an award. But when a Court wants to decide what is the right of a party to apply to set aside an award and what procedure he should follow, then the Court has got to turn to section 33.
Thus, the Arbitration Act contemplates only one application to set aside an award and to such an application Article 158, Limitation Act, applies."
Under Article 158 of the Limitation Act, an application for-- setting aside of the award can be presented only within 30 days of the date of the service of the notice. It is not denied E that the appellants were served on 30-10-1964 and the applications were filed on 18-1-1965 and 25-1-1965.
All that was said was that the notice was not accompanied by a copy of the award. The learned Single Judge found that the allegation had not been proved. I do not find any conceivable reason to differ from the same. In all fairness it might as well be mentioned that Mr. Z. C. Valliani, learned counsel for the appellants made a mention of it only in a passing fashion. Looking to the circumstances involved, I agree with the conclusions reached by the learned Single Judge that the applications were time-barred.
6. As for the damages, Mr. Z. C. Valliani, learned counsel for the appellants made a grievance of the fact that the umpire had calculated damages on the basis of spot rate while according to the contract, the same should have been assessed at the Satta rate of March 4, F. R. G.
62. However as observed by their Lordships of the Privy Council in Mahindar Singh v. Ramindar Singh and another (AIR 1944 P C 83), if parties had chosen to submit their dispute to an arbitrator, they could not subsequently challenge his award simply on the ground that there was an error in the calculation of damages similar view was taken in Messrs Moosa Oomar & Co. Ltd., Karachi v. Messrs Haj: E.
Dossa & Sons and another (PLD 1971 Kar. 899). For the challenge to succeed, the error in the assessm ent must be apparent on the record. The r umpire has however not chosen to give any reason. Ono cannot -simulate whether the reasons which weighed with the umpire, were good bad or indifferent. The further contention of Mr. Z. C. Valliani, that the award must be set aside in the absence of any reasons by the umpire, militates with the view taken in Hamdard Dawakhana (Wakf), Karachi v. Messrs K. B. Joseph & Co. Ltd., Lahore (PLD 1971 Kar. 279).
7. Further as observed by Lord Goddard, C. J., in Mediterranean & Eastern Export Co. Ltd., v. Forters Fabrics Ltd. ((1948) 9 All E R 186): "The day has long gone by when the Courts looked with jealousy on the jurisdiction of the Arbitrator.
The modern tendency is in my opinion more specially in commercial arbitration, to endeavour to uphold awards of the skilled persons that the parties themselves have selected to decide the questions at issue between theta. If an Arbitrator has acted within the terms of his submission and has not violated any rules of what is so often called natural justice the Courts should be slow indeed to set aside his award."
8. Learned counsel for the patties had also addressed us on the merits of the case, but in the light of the view I have taken, it will be a work of supererogation to dilate on the same.
9. In the result, the appeal stands dismissed with costs.
DORAB PATEL, J.----I agree.