' SHAMEEM HUSSAIN KADRI, intra-Court appeal arises out of the judgment of a learned Judge in Chambers dated 9th July 1971, in F. A. O. No, 196 of 1969.
2. Brief facts of the case are that the appellants granted four contracts to the respondent for construction of buildings and roads in the Small Industries Estate at Sukkur and Larkana in the year 1962. For each work a separate agreement was executed. According to the agreement, dispute between the parties, arising out of the contract, had to be referred to the Secretary, Govenment of the then West Pakistan Communication and Works Department. Since the dispute arose between the parties, the contractor asked for the appointment of an arbitrator and ultimately on 7th October, 1968, he made an application under section 8 of the Arbitration Act, submitting his claim for each work. In this application it was submitted by the contractor that "the nominee may be removed for not deciding the dispute, it be placed before some body else and the arbitrator so named be directed to file his award in Court and the Court may make the award the rule of the Court".
3. The appellant resisted this application but ultimately agreed to refer the matter to the named arbitrator for adjudication. Finally, Dr. M. Anwarul Hag, Principal Small Industries Institute, Lahore, was appointed as an arbitrator with the consent of the parties. He allowed a sum of Rs, 2,35,630.( 0, as the amount payable to the contractor, for the work done under the four works. He also allowed 44 per cent. Compound interest on the amount found due from various dates amounting to Rs, 32,264.48. The total amount worked out was Rs, 2,67,895,08. The award was filed in Court on 5th April 1169, and the copies were supplied to the parties on 14th April 1969. The appellant raised the objection that (i) the arbitrator has misconducted the proceedings by not allowing proper opportunity to the appellant to present its case, (ii) there was a factual inaccuracy in determining the amount of penalty imposed, (Iii) no interest was payable, (h) the reference had not been specified in the order and (r) the award was based on no evidence.
4. The learned trial Court framed the following issues on the pleadings of the parties:-
(i) Whether the objections filed by the respondent are within time? O. P. R.
(ii) Whether the arbitrator has misconducted in proceedings of arbitra tion? 0. P. R.
(iii) Whether the award is beyond the order of reference? 0. P. R.
(iv) Relief.
' The learned trial Judge repelled the objections, other than the compound interest at 44 per cent.
Awarded by the arbitrator, which was altered to 6 per cent. From the date of filing of the award till 11th November 1969 and onwards till realisation of the amount. The award was made the rule of the Court. Before the learned Judge in Chambers the following five points were raised:-
(1) The application under section 8 of the Arbitration Act, filed on 7-10-1968, was not within time.
(2) The arbitrator had misconducted himself by being partisan, shutting out the evidence of the appellant and exercising undue influence on the attorney of the appellant in the conduct of the proceedings.
(3) The Court was not justified in refusing to call and examine the arbitrator as a witness in the case.
(4) Interest could not be allowed to the respondent on the sum ascertained by the arbitrator and upheld by the Court to be due.
(5) The award could not be made the rule of the Court as it did not have proper stamp and section 35 of the Stamp Act stood in the way.
5. The learned Single Judge accepted the appeal to the extent that the award being unstamped could not be made the rule of the Court. It was set aside. However, it was left at the discretion of the trial Court to make the modified award the rule of the Court on payment of stamp duty. The award was modified to the extent that the penalty deducted, shown as Rs, 56,648.47, shall be substituted by the amount of Rs, 31,929.
6. Before us the learned Advocate-General has raised the following points:-
(i) That the Arbitrator has misconducted himself (ii) the claim was barred by limitation ;
(iii) no opportunity was allowed by the Arbitrator to the appellant to produce Mr. Muhammad Ashraf attorney of the appellant, who appeared before the Arbitrator;
(iv) the unstamped award could not be made the rule of the Court ;
(v) the Arbitrator has awarded the amount in excess of the demand of the contractor, and
(vi) interest for pre-award period could not be allowed.
' We shall take up points 1 and 3 together. The learned Advocate-General submitted that the Arbitrator shut out the evidence of his client and fair opportunity was not allowed. The attorney of West Pakistan Small Industries Corporation, Mr. Muhammad Ashraf was not allowed to be produced. So far as the fair opportunity of leading evidence is concerned none of the witnesses produced before the trial Court, had made any complaint to the effect that the Arbitrator had not permitted them to produce any oral or documentary evidence. The appellant found no cause of revoking the power of attorney in favour of Muhammad Ashraf, who appeared before the Arbitrator on behalf of the Small Industries Corporation. The other allegation that he was not permitted to appear in Court is factually incorrect. He did appear before the Court and stated that fair opportunity had been allowed by the arbitrator to both the parties for leading any kind of evidence.
It does not lie in the mouth of the appellant to condemn Mr. Muhammad Ashraf as a person interested in the other party, for, be remained trusted authorised agent of the appellant all the time before A the Arbitrator and no grievance of any such nature was made either before the Arbitrator or the Court. Assuming for the sake of arguments if the appellant feels so inclined, then the remedy for it would be to proceed for damages against its own attorney but the appellant is certainly bound by the acts of its duly authorised attorney.
7. The learned Advocate-General submitted that the Arbitrator, followed a novel procedure of getting a certificate from both the parties on' the award in the following words:- "The arbitration proceedings were carried out in a congenial atmosphere without coercion or undue influence. Opportunities were afforded to express our viewpoint at all stages."
' This according to the learned Advocate-General was a mala fide act of the Arbitrator to conceal his irregularities and partialties. Surely, the argument could carry some weight had some evidence been led in support thereof. The attorney has appeared on behalf of the appellant in Court. He stated that the conduct of the arbitrator was above board. There is hardly any forcer in this submission which is repelled.
8. The next allegation which the learned Advocate-General made against the Arbitrator was that he failed to put in Court the documentary and other evidence on which he had relied in submitting the award. He also failed to discuss the evidence. It was not incumbent upon the Arbitrator to submit the oral and documentary evidence in Court along with the award. However, a case would have certainly been made out had the Court called C upon the Arbitrator to produce such evidence and had he refused to comply with it. This is not the case. According to the learned Single Judge and the trial Court the award gives details of every claim, the extent to which it was allowed or disallowed and the Arbitrator had recorded his own reasons for it. The completion certificate issued by the Chief Engineer that the work was done by the contractor satisfactorily and according to the classification was before the Arbitrator and it was for this reason that the penalty could not be imposed for delay or unsatisfactory work. As regards the delay liability has been fixed in the award. We are, therefore, in complete agreement with the learned Single Judge that there has been no misconduct on behalf of the Arbitrator. He has allowed full opportunity to the parties and has performed his duties properly. The learned Single Judge, however, in para. 12 of his judgment has corrected the amount of penalty, which was based on miscalculation and has altered it from Rs, 56,618.47 to Rs, 31,929. The award was rightly corrected to this extent.
9. As regards the contention that the claim was barred by limitation the learned Single Judge has well-considered this objection and has rightly repelled it. Under Article 56 of the Limitation Act a suit for the recovery of "the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment" can be instituted within a period of three years when the work is done. According to the award the completion of the work had taken place in August 1965. We called upon the learned Advocate-General to show us the date of the last payment made, but be was unable to do so, for, the limitation will start if the amount is refused after the last payment. Looking at any angle we are of the view that the claim cannot be said to be barred by limitation.
10. So far as the objection, that the arbitrator has awarded the amount in excess of the demand of the contractor, is concerned the learned Advocate-General has not been able to substantiate this allegation from the record. It is, therefore, misconceived.
11. As regards interest for pre-award period this allegation is equally without force. In fact the trial Court has altered the rate of compound interest at 6 per cent. From the date of the award.
12. In regard to the contention that the award was unstamped and could not be made the rule of the Court the appellant cannot make any grievance, for, already the learned Single Judge has accepted the appeal to this extent. It was argued by the learned Advocate-General that the unstamped award cannot be made the rule of the Court in 'view of section 35 of the Stamp Act. He placed reliance on Pakistan Cement Industries Ltd, v. Teekayef Trading Co. (1), Mst. Najma Baqai and others v. Mst. Shamim Akhtar (2) and
(1) PLD 1971 Lah. 522 (2) PLD 1974 Note 62 at p. 102 ' Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat and others (1). The learned Single Judge in Pakistan Cement Industries Ltd. v. Teekayef Trading Co. Was dealing with the case in which the Arbitration Agreement was not stamped. It was held that it could not be acted upon. The case is distinguishable from the instant case. The learned Judge in para. 6 has observedt "it is clear that no valid arbitration proceeding can be taken unless there is in existence a valid arbitration agreement." This goes to the very root of the case in which the arbitrator proceeds on an agreement which is invalid. Moreover, while discussing sections 35 and 36 of the Stamp Act the attention of the learned Judge was perhaps not invited to sections 40 and 61 of the Stamp Act. The judgment does not speak about it. Moreover, section 36, in our view, deals with the case of an instrument which has been admitted in evidence. The award in this case having been admitted in evidence section 36 will be applicable and not section 35. Section 36 provides that "where an instrument has been admitted in evidence such admission shall not, except as provided in section 61, be called in question at any stage of D the same suit or proceeding on the ground that the instrument has not been stamped." A bare glance at section 61 would show that when any Court makes any order admitting any instrument in evidence upon payment of duty and penalty under section 35, such Court may of its own motion or on the application of the Collector, take such order into consideration. The procedure for the Collector is provided in section 40, which deals with the Collector's power to stamp instruments impounded. Printed headnotes in Mst. Najma and others v.
Mst. Shamim Akhtar are of no avail since judgment was not produced before us. Relying on Rustomji Ardeshire Ir Baqaiani v. Vinayak Gangadhar Bhat and others the learned Advocate- General submitted that an unstamped document is non-existent and, therefore, it should not be looked into. This was a case of trust deed. The legal implications of the admission and acting upon such a document have not been dealt with in this judgment. Reliance is further placed on Gopi Mal v. Vldya Wanti etc. (2), a Full Bench judgment of this Court, wherein it has been held that admitting into evidence and acting upon are two distinct things. Court in executing unstamped partition decree acts upon it within section 35. We are grateful to the Advocate-General who also placed before us a Division Bench judgment of the Punjab Chief Court reported as Gowardhan Das v.
Kesho Ram and others (3), a case on all fours. It was held in proceedings under section 20 of the Second Schedule to the Code of the Civil Procedure that an unstamped award may be admitted in evidence and filed in Court after payment of the penalty under the provisions of the Indian Stamp Act. The last mentioned two cases clearly go against the stand of the Advocate-General. In Haji Hamzo Panhwar v. Muhammad Ibrahim and another (4) Mr. Justice Anwarul Hag, as his Lordship was then a Judge of this Court, while dealing with the power of the Court, impounding an insufficiently stamped document under section 33, held that the Court itself is competent to impose penalty without forwarding document to the Collector for the purprose, irrespective of the fact whether document has been admitted in evidence or not. Our view is also supported by a Division Bench judgment of the Karachi High Court, reported as Samiullah v. Muhammad Ahmed and 6 others (5).
(1) (1910) 35 I L R. 29 (2) AIR 1942 Lah. 260 (1913) 201 C 491 (4) PLD 1963 Kar. 962
(5) P 1. D 1977 Kar, 49
13. The learned Single Judge has rightly set aside the order making an unstamped award the rule of the Court with a an observation that the lower Court will not be precluded from making the modified award the rule of the Court on payment of stamp duty. In view of the foregoing discussion we are inclined to hold that there is no merit in this appeal which is dismissed with costs.