1. ' SALEEM AKHTAR, J.---The respondent was awarded construction work by the appellant under an agreement which provided for an arbitration clause. A dispute arose between the parties whereupon the respondent filed an application under section 20 of the Arbitration Act on 8-11-1974 which was registered as suit No,3 of 1975. It was alleged that the appellant has refused to pay Rs,15,18,613 and has neglected to refer the dispute to the arbitrator in terms of agreement. The respondent's prayer for filing of the arbitration agreement and appointment of the arbitrator was granted. The appellant appointed Mr. Ghulam Mohammad Junejo as its arbitrator while with the consent of the respondent Mr. Shamsul Arfin, the then Deputy Secretary, Home Department, was appointed as an arbitrator on behalf of the respondent. Both the arbitrators gave conflicting award. According to Mr. Ghulam Mohammad Junejo the respondent was entitled to Rs,25,380.90 while Mr. Shamsul Arfin awarded Rs,13,38,700.14 with interest at the rate of 12% from the date of award till payment. The appellant required to appoint umpire first appointed Mr. Shah Nasim as umpire but his appointment was recalled and Mr. Sajjad Haider was appointed as umpire who failed to make his award and therefore on 11-11-1984 the Court appointed Mr. Justice (Retd.) Agha Imdad Ali as umpire and further ordered that award may be made within two months of the receipt of the notice. An application was filed for extension of time for making the award and by order dated 7-4-1985 time was extended by two weeks to be computed from the date of the order.
2. The learned umpire submitted his award dated 3-4-1985 alongwith the application for filing it in Court which was presented on 8-5-1985. The learned umpire concurred with the award made by Mr. Shamsul Arfin. After award was filed the appellant filed objections while the respondent did not file any objection. After hearing the learned counsel for the parties, the learned Single Judge by the impugned judgment made award of the umpire as rule of the Court and decree in terms thereof was passed.
3. ' Mr. Abdul Ghafoor Mangi the learned AA.-G has contended that as award was not made within the time fixed by the Court it has no legal value and could not have been confirmed. In support of this contention the learned counsel pointed out that the umpire was appointed on 11-11-1984 for making award within two months which expired on 10-1-1985 and the application under section 28 was granted on 7-4-1985 for making award within two weeks. The learned umpire had signed the award on 3-4-1985. The learned counsel further contended that after 10-1-1985 umpire had become functus officio and on 3-4-1985 he had no jurisdiction to make the award. From the above facts it is clear that the award was not made within two months and for that purpose an application under section 28 was filed for extension of time which was granted on 7-4-1985 and two weeks time from 7-4-1985 was allowed. This means that the time was extended upto 21-4- 1985. The learned umpire made the award on 3-4-1985 and therefore by virtue of order dated 7-4- 1985 it was made within the extended period. The learned counsel contended that on 3-4-1985 the learned umpire did not have the authority to make the award. Such authority was conferred by virtue of extension of time granted by the Court and the umpire was authorised to make the award upto 21-4-1985. The order of extension of time operated retrospectively validating all actions done from 10-1-1985 to 21-4-1985.
4. ' The learned counsel then contended that the award was filed on 8-5-1985 which was beyond the period extended by the Court. This contention completely overlooks the fact that making of the award is different from filing of the award. The time was extended for making the award and filing the award. The period for filing the award is computed from the date when the award is made as provided A by the Limitation Act. The learned counsel for the appellant has not been able to show how the award when filed by the learned umpire on 8-5-1985 was beyond time. Reference can be made to Article 178 of the Limitation Act under which award can be filed in Court within a period of 90 days from the date of service of the notice of the making of the award. Mr. A.G. Mangi the learned counsel for the appellant has referred to PLD 1953 Sindh 18, where award made on expiry of date fixed by Bye-law was held to be invalid. In PLD 1956 Sindh 195 it was held that award made beyond four months as provided by para 3 of Sch. I to the Arbitration Act is not void but voidable.
5. These authorities do not apply to the facts of this case as the award was made within the time extended by the Court under section 28 of the Arbitration Act. The fact that the award was signed on a date before the time was extended does not invalidate the award as the extension operated with retrospective effect.
6. ' Mr. Abdul Ghafoor Mangi the learned counsel then challenged items of claims under issues Nos.3 and 4 which according to him were awarded without any proof or any evidence on record. In this regard he has first referred to claim No, 1-A and 1-B. Under this heading the respondent had claimed Rs,1,39,209.08 as follows: I. Cartage of sand, bajri, lime, morum, manure, earth, building rubbish including loading, unloading and stacking at site lead 12 miles.
7. 3,19,525 Cft. @ Rs,36.10 Cft Rs,1,16,307/10 II. Cartage of sand, bajri, lime, manure, earth, building rubbish etc. Including loading unloading and stacking at site lead above 12 miles. {{TABLE TEXT}} 2,06,396,33 Cft. Rs,62 @ Cft =Rs,42,558/92 Total of I & II: Rs,1,58,866.02 Less already paid: Rs, 19.
8. 656.94 Net claim of the plaintiffs: Rs,1,39,209.08 ' The respondent's claim was that the cartage of all kinds of material as specified in the description of item No, 48 of Schedule B namely sand, bajri, lime, manure, earth, building rubbish etc. Was to be paid at the rate quoted by it but the Executive Engineer paid it cartage of only building rubbish and earth. This claim was denied by the appellant on the plea that respondent No,3 was not entitled to claim the payment for cartage or materials required in the construction work either brought at site of work by them or supplied by the Department. Under clause 3 of the additional conditions, Part-1 appended with the agreement it was provided as under: "The contractor will not be paid for the carriage of material either brought by him to the site of work or supplied by the department."
9. ' The claim was based on item 48, but this item was meant for clearance of site, excavated earth and construction debris which was to be disposed of at a distance of 12 miles. In paragraphs 16 and 18 of the affidavit of the respondent the claims under items 1-A and 1-B were in respect of cartage of sand, bajri, lime, manure, earth building rubbish etc. For loading and unloading and stacking at site lead 12 miles and above. Therefore besides the amount paid by the appellant in respect of cartage for removing building rubbish further cartage is claimed for removing sand, bajri, lime, morum, manure, etc. At the site. According to the appellant in terms of clause 3 the contractor was not to be paid for carriage of material brought by him within the site and further that as per instructions of the Standing Rates Committee Sindh, cartage of material was not tendered for but added to the estimated cost of the work to include the carriage of material to the site. Therefore in our view there is error apparent on the face of the award when such provisions of the contract documents have not been properly appreciated c and considered. Mr. Iqbal Qazi the learned counsel for the respondent contended that in the objections filed by the appellant no such specific plea had been taken and therefore it cannot be raised at this stage. We have seen the objections. The appellant has challenged it in a general manner by stating that the claims awarded are not supported by any evidence. We would not knock out this objection on technical grounds. The learned umpire has awarded Rs,96,650. In our view this amount should not have been awarded.
10. ' The learned counsel for the appellant has challenged the award made on claim No,2 which relates to deform steel bars of 60,000 PSI per drawings and includes the cost of binding wire wastage overlapping etc for a quantity of 57.34 tons at the rate of Rs,6,620 per ton amounting to Rs,3,79,590.80 less Rs,1,30,505.84 already paid. The balance amount claimed was Rs,2,49,084.96 which has been awarded. The finding of the learned umpire which concurs with the finding of Mr. Shamsul Arfin is based on proper appreciation of evidence on record. The Executive Engineer in the 4th running bill approved the rate of Rs,6,620 per ton but provisionally allowed payment at the rate of Rs,4,200. Therefore so far the determination of the rate is concerned it finds support from the approval of the Executive Engineer. Thus the award cannot be challenged on the ground that there was no evidence on record. It may be pointed out that while considering objections on the award the Court does not act as a Court of appeal. If on the face of the award the finding does not appear to be supported by any evidence, the Court can interfere but if there is evidence which can support the conclusion then the award made by the arbitrator cannot be interfered. The appellant's contention in this regard is therefore rejected.
11. ' The learned counsel for the appellant also challenged claim No,3 for Rs,29,610 as an extra work for using S.R.0 in all RCC and CC work of foundation and plinth under subsoil water level. Here also the full rate claimed by the respondent at Rs, 300 per ton was approved by the Engineer In charge but payment was made at the rate of Rs,200 per ton. In this regard the award for the reasons stated in the preceding paragraph cannot be challenged.
12. ' The appellant's counsel then challenged certain claims from Nos.4 to 34. First he took up claims Nos.4 to 11 for Rs,2,834.65. ' The learned umpire while allowing this claim has approved the finding of Mr. Shamsul Arfin which is based merely on inferences and presumptions. From the award of Mr. Ghulam Mohammad Junejo it seems that from the last running bill the claims under serial Nos.4 to 11 which according to the respondent were paid at reduced rate, were paid at full rate and no claim in this regard was made by the respondent. We, therefore, agree with the contention of the appellant's counsel that this amount has been awarded without any basis.
13. ' The learned counsel then referred to claims Nos.27 to 33 for Rs,6,729.39 pertaining to the construction of overhead tank with a height of 75 feet. This claim has been allowed by the umpire but Mr. Ghulam Mohammad Junejo has disallowed to the extent of Rs,902.66 on the basis of certain presumption. No illegality or infirmity has been shown to compel us to interfere with this part of the award.
14. ' Mr. Abdul Ghafoor Mangi contended that the amount of escalation granted under issue No,2 is without any basis and should not have been granted. In this regard we have examined the awards of both the arbitrators, the award of the umpire and the documents produced by the parties. We find that the learned umpire has taken into consideration various facts and evidence brought on record and also relevant documents which supported the claim for escalation. As the award is based on evidence and is a result of proper appreciation of evidence no interference is required.
15. The learned counsel then referred to claims 46 and 47. Claim 46 relates to loss of hire charges for remaining idle of all machineries and loss of salaries paid to the drivers amounting to Rs,2,11,920 and claim 47 relates to loss of salaries of staff due to continuous suspension of work amounting to Rs,1,71,492. The learned umpire while agreeing with Mr. Shamsul Arfin has come to the conclusion that the appellant had delayed the work and the delay was due to its own default which could not be compensated by extension of time. Arriving at this conclusion reliance has been placed on evidence which was produced on record and nothing has been shown to us that the evidence was ignored or there was no evidence to support this finding. The work was delayed for 17 months which according to the learned umpire has caused loss to the respondent. This loss under both the items has been assessed and awarded at Rs,1,00,000. The reasoning of the learned umpire and the arbitrator are based on evidence on record and the same cannot be challenged.
16. ' So far claim No,53 is concerned the only objection raised by the learned counsel for the appellant is that the interest from the date of award till payment could not have been granted by the umpire.
17. The learned counsel for the respondent further contended that interest could not have been granted beyond the date of the award and as interest has been granted from the date of award till payment it is without jurisdiction. In this regard the learned counsel has relied on PLD 1986 Kar. 21, 1983 CLC 513 and PLD 1987 SC 393. Mr. Iqbal Qazi the learned counsel for the respondent has also relied on Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 paragraph 22 at page 412 which reads as follows:- "As far as the grant of interest from the date of the award until the payment of the principal sum it may be observed that the Arbitrator can under no circumstances award interest for the period beyond the passing of the decree by the Court on the award for the simple reason that the statutory provisions contained in section 29 of the Arbitration Act take over and it is the Court within whose discretion lies the power to order interest from the date of the decree at such rate as the Court deemed reasonable, to be paid on the principal sum as adjudged by the award and confirmed by the decree. From this it necessarily follows that future interest with effect from the date of the decree could not legally be awarded by the Arbitrator. However, the facts are that the award was made the rule of the Court by the learned Single Judge with the result that the part of the award granting interest beyond the date of the decree until payment was also incorporated in the decree passed by the Court. As held in Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad PLD 1956 Lah. 276, although, the Court could set aside this part of the award, it was open to it to exercise its own power under section 29 of the Arbitration Act and grant interest. Therefore, in making this portion of the award a part of the decree the Court must be deemed to have adopted it in the exercise of its own power under section 29. However, in his statement of claim the appellant had claimed interest only up to 3rd October, 1973. The issues were framed by the learned Arbitrator on the pleadings of the parties and therefore, interest beyond 3rd October, 1973, was not the subject- matter of reference for adjudication before the Arbitrator. The Arbitrator, therefore, exceeded his authority, in any case, to have awarded further interest for the period between the date of the award and the date of the decree on any basis. The reference was also earlier made to the case of Union of India and another v. M/s. D.P. Wadia and Sons AIR 1977 Bombay 10, in which the award of interest was upheld on the ground that no reasons were assigned by the Arbitrator. We are unable to agree with that view of the law and also feel that the facts in the present case are different. The award on the face of it refers to the statement of the claim in which the contractor claimed interest by way of damages and it is on that basis that the decision of the Arbitrator apparently proceeds.
18. As we have held that the Arbitrator in the facts of the present case could not according to law grant interest as claimed, there would be an error of law apparent on the face of the record. The mere fact that pleadings were filed before the Arbitrator and issues were then settled on the pleadings of the parties incorporating the question of interest does not necessarily give rise to the inference that the parties had agreed to refer specifically the question of grant of interest as a question of law for the decision of the Arbitrator, so as to preclude any party to the arbitration from challenging the award on the ground of error of law on the face of the award."
19. ' An arbitrator is not authorised to grant interest beyond the date of award but if it was granted and has been made rule of the Court then in view of the observation of the Supreme Court it shall be deemed to have been adopted by the Court under section 29. Therefore this technical illegality stands cured as the learned Single Judge has granted decree in terms of the award. The net result is that the appeal is partly allowed and award decree is modified by excluding Rs,96,650, and Rs,2,834.65 (total Rs,99,484.65) from Rs,13,38,700.14. We, therefore make the award rule of the Court to the extent of Rs,12,39,215.49 and decree the suit for the said amount with interest @ 12% PA. From the date of the award till payment with no order as to costs.