' The award given by Mr. Justice (Rtd.) Dorab F. Patel who was appointed Umpire by this Court vide its order dated 23-5-1982, allowing the claim of the plaintiff to the extent of Rs,296,968.75 with interest at 14% per annum from the date of the award till the date when the award is made rule of the Court together with cost of Rs,45,000, has now been assailed by the defendants in the case.
2. The facts pertinent for resolving the present controversy are that in 1974 the Government of Sind had invited tenders for construction of a new block at the Civil Hospital, Karachi. The plaintiff's tender, being the lowest was accepted and it was informed as such by the Executive Engineer, Provincial Building Division vide his letter dated 9-5-1974. The Plaintiff was directed to start his work within 7 days from the said date. It may be pointed out that the new block was to be built where there was a previous structure, therefore, construction could not be made until the old structure was demolished. But since the contract for the demolition of the old structure had been given to another contractor, this could not be done in spite of about half a dozen reminders sent by the Plaintiff to the defendants between May and August, 1974. Perhaps in order to expedite, the plaintiff offered to demolish the old structure in accordance with the rates embodied in the PWD Manual and the case of the plaintiff is that it was requested by the Executive Engineer to demolish the old structure, which it did. Thereafter when the drawings and designs were supplied to the Plaintiff on 26-8-1974 it began the construction in September, 1974 and as its labour and equipment had remained idle for nearly three months, the Plaintiff through several letters made a claim for idle time which was, however, repudiated by the Executive Engineer. However, when the plaintiff started his work although the progress made by him was rapid but vide letter dated 21st October, 1974, the plaintiff was directed by the Sub-Divisional Officer "'to stop the work forthwith till further orders". The plaintiff in the first instance sent a claim for Rs,22,900 due for loss of idle labour etc. Which, of course was not accepted by the defendants. However, the plaintiff persisted with its demand.
Finally the plaintiff was informed by the Executive Engineer that he had terminated the contract under Clause 15 of the Contract documents. Consequently the plaintiff made a claim for compensation. It is pertinent to point out that vide its letter dated the 4th July, 1975, addressed to the Superintending Engineer, the plaintiff expressly stated that if its claim for compensation was not allowed the Superintending Engineer should "take up the case for consideration in the capacity of an arbitrator under the specific clause of arbitration", which was followed up by reminders and one of the reminders being a letter dated 21-10-1975, whereby the demand for arbitration was repeated by the plaintiff who named the Superintending Engineer as its arbitrator and called upon the Chief Engineer Building Department to nominate the Department's arbitrator under the arbitration clause. Thereafter, although the Superintending Engineer to whom the plaintiff had referred its differences did not give any decision but then the plaintiff did not take steps for the appointment of two arbitrators within the period prescribed in the arbitration clause. However, after the expiry of this period the plaintiff filed an application before this Court under Section 20 of the Arbitration Act for referring its claim for arbitration and by a consent order dated 25-10-1977 Mr. Agha, an S.E. Was appointed as defendants' arbitrator, whereas Mr. Junejo, another S.E. Was appointed as the arbitrator of the plaintiff. As said arbitrators did not take any steps in the arbitration, another application was filed on behalf of the plaintiff before this Court and by another consent order dated 5-8-1978 Mr. Saecd and Mr. M.A. Qureshi, both of whom were Superintending Engineers were appointed arbitrators for the defendants and the plaintiff respectively. However, again the arbitrators failed to take any further steps in the matter with the result that another application was filed in this Court and by a consent order dated 21-10-1979 Mr. Shamsul Arfeen the then Deputy Secretary, Home Department, Government of Sindh was appointed as plaintiffs arbitrator while said Mr. Saeed continued to be defendant's arbitrator. Thereafter in January 1982 the defendants filed an application for removal of Mr. Shamsul Arfeen as the plaintiffs arbitrator alleging misconduct against him but the application was dismissed by order of this Court dated 2- 5-1982. It may be pointed out that on 28-1-1982 the arbitrators in their first sitting tried to appoint an Umpire but as they could not agree about the appointment, Mr. Shamsul Arfeen the plaintiffs arbitrator made a reference to this court for the appointment of an Umpire and vide order dated 23-5-1982, Mr. Justice (Retd.) Dorab Patel was appointed as Umpire. The defendants who were absent at the time of the passing of the said order challenged the appointment first before the learned Single Judge in Chambers, and subsequently by an appeal before a Division Bench but their objection was overruled. In the meanwhile the arbitrators entered upon the reference and the plaintiff filed a claim for Rs,46,66,351.85 consisting of 20 items before the arbitrators. The arbitrators then gave their award on 5-11-1985 and the plaintiffs arbitrator held that the defendants were estopped from relying on the arbitration clause, while the arbitrator of the defendants Mr. Saeed held that the arbitration clause was fatal to the plaintiffs claim. The defendants' arbitrator also rejected the various claims made by the plaintiff on merits while the plaintiffs arbitrator allowed the same but only to the extent of Rs,811,126.20 for damages and Rs,242,285.97 for other specific item.
The plaintiff was also awarded interest at 12% on the amount of Rs,242,285.97 together with the costs. As the arbitrators did not agree the matter was referred to the learned Umpire who entered on the reference on 14-12-1984. Therefore, after considering the various factual and legal objections raised on behalf of the defendants the Umpire gave its award dated 13-4-1988 which has now been assailed before this Court as pointed out earlier.
3. 1 have heard Mr. Syed Ahmed Farooqui, learned counsel for the defendants and Mr. Iqbal Kati, learned counsel for the plaintiff.
4. The first contention of Mr. Syed Ahmed Farooqui is that the award which was filed in this Court on 2-10-1990 should have been filed within 90 days from the date of its signing by the learned Umpire and consequently the same is time-barred. I find no force in this argument. No doubt, Article 178 of the Limitation Act provides for a period of 90 days for filing in Court of an award given under the Arbitration Act and the period of limitation, according to the said Article, would commence from the date of service of the notice of the making of the award but Article 178 would not be applicable where the award is filed by the arbitrator himself, as is the case in the present case. Reference may be made in A this regard to two judgments given by the Dacca High Court and the Lahore High Court respectively in the case of Province of East Pakistan v. Abdul Halim Nezamuddin (PLD 1968 Dacca 937) and Muhammad Shafi v. Muhammad Sabir PLD 1960 (W.P) Lah.
591. In both the cases it has been unequivocally held that there is no period of limitation prescribed in the Limitation Act for the arbitrators or Umpire to cause the award to be filed in the Court. As I find myself in respectful agreement with the view expressed in the said cases no further discussion is needed on the point. The first objection of Mr. Syed Ahmed Farooqui is, therefore, repelled.
5. The next contention of Mr. Syed Ahmed Farooqui is that the award was given by the Umpire after the expiry of the period fixed by the Court for the same and without obtaining of further extension of time from the Court. Consequently the award has become invalid on that account as well as for the reason that the arbitrator after the expiry of such time has become functus officio. I find no force in the second contention of Mr. Syed Ahmed Farooqui as well. The time limit fixed by the Court or prescribed under the law can be waived with the consent of both the parties. Since the defendants took part in the arbitration proceedings before the learned Umpire without raising an objection even after the period fixed by the Court had expired any objection in this regard would be deemed to have been waived by the defendants. Reference in this respect may be made to the judgment of the Supreme Court in the case of WAPDA and another v. M/s. Khanzada Muhammad Abdul Haque Khan Khatak and Co. (N.L.R. 1990 S.C.J. 183) wherein the Supreme Court declined to entertain a similar objection before it. The second argument of Mr. Syed Ahmed Farooqui, therefore also has no merit.
5-A. The third objection raised by Mr. Syed Ahmed Farooqui is that the learned Umpire while giving the award has failed to give his findings on the question of jurisdiction of the arbitrators/umpire in terms of the arbitration clause embodied in the agreement as they have failed to take into consideration the limitations imposed by the said clause. It may be pointed out that such objection was also raised by the defendants before the learned Umpire but the same was overruled. The learned Umpire after a lengthy discussion on the point came to the conclusion that in view of the consent orders respectively passed by this Court whereby, the matter was referred to the arbitrators/umpire the said contention had lost its force. The plaintiff had filed its suit (No,394/76) for appointment of arbitrators. The defendants contested the same on all such grounds which barred the arbitration. However, when the suit was allowed, the defendants were barred from opposing the arbitration on any of the grounds which "might or ought to have been made a ground of defence" in the suit. Consequently the learned Umpire came to a conclusion that all the objections which were either taken or could have been taken by the defendants could not be reagitated before the learned Umpire on account of the bar of res judicata. Mr. Syed Ahmed Farooqui has failed to throw any valid challenge to the findings arrived at by the learned Umpire. I am, therefore, unable to agree with the learned counsel that the learned arbitrators or the learned Umpire has travelled outside the ambit of their authority in the matter. Award made rule of the Court.
6. It was next argued by Mr. Syed Ahmed Farooqui that although the original claim made by the plaintiff, which was referred to arbitration, was only in respect of Rs,16,45,393 but admittedly when the plaintiff filed its statement of claim before the arbitrators the claim had been increased to Rs,46,66,351.00. Consequently, the award is beyond the reference. Mr. Iqbal Kazi, learned counsel for the plaintiff has pointed out that this objection has been taken on bahalf of the defendants for the first time before this Court as no such objection had been taken by the defendants before the learned arbitrators or the learned Umpire. This is clearly evident from the written statement filed by the defendants before the learned arbitrators. The same is also evident from the award as no discussion can be found in this regard in the award. I am certain if an objection in this regard had been taken before the learned arbitrators or the learned Umpire the same would have been determined by them. Since no objection in this regard was taken either before the learned arbitrators or the learned Umpire the defendants themselves permitted the arbitrators to give award in respect of the entire amount claimed by the Plaintiff before them. The objection now taken, therefore, would be deemed to have been waived and the same cannot be permitted to be taken for the first time before this Court. The contention of the learned counsel is, therefore, repelled.
7. The defendants have also assailed the award on merits but it is pertinent to point out that the findings of fact arrived at by the learned Umpire have not been assailed on any of the grounds which would call for reversing the findings of fact arrived at by the learned Umpire. This Court, notwithstanding the amendment introduced by insertion of section 26-A into Arbitration Act cannot act as a Court of appeal in respect of the findings of fact arrived at by the learned arbitrators or the learned Umpire and enter into reassessment of evidence. I, therefore, do not find it necessary to go into the factual findings arrived at by the' learned Umpire as nothing has been pointed out by Mr. Syed Ahmed Farooqui requiring such an exercise. The learned Umpire has arrived at its findings after careful consideration of the evidence adduced by the parties respectively in support of their case.
8. Consequently, I have no hesitation in dismissing the objections and making this award the rule of the Court and it is ordered accordingly.
9. Before parting with this case I would like to point out that after the arguments by the learned counsel respectively appearing for the parties had almost concluded Mr. Syed Ahmed Farooqui made an application for adjournment of the case to some other date. However, as the request made in the application was highly unreasonable, since the case had already been argued by both the learned counsel at great length I did not accept the same and dismissed the application.