' This is a proceeding under section 14(2) of the Arbitration Act, 1940 read with Rule 282 of Sindh Chief Court Rules (O.S.) for making the Award, dated 10-1-1993 passed by the sole Arbitrator, Mr. S.A.
Nizami, rule of the Court. Earlier, vide order, dated 14-1-1998, the said Award was made rule of the Court but on the application (Civil Miscellaneous Application No,880 of 1998) filed by the defendant, the said order was recalled as it was passed ex paste and the matter was reheard on merits.
2. Brief facts of this case are that on 11-6-1998, two awards were given by the same arbitrator in respect of construction work carried out by the plaintiff at Sukkur Airport and Jacobabad Airport.
The award given by the sole arbitrator in respect of Jacobabad Airport which was subject-matter of Suit No,1027 of 1988 was remanded by this Court vide consent order, dated 9th August, 1998 in the following terms:-- "(1) The award is remitted to the Arbitrator for giving detailed reasons for the award.
(2) The Arbitrator while allowing the claim of the plaintiff on account of escalation has referred to customary usage and circular issued by the Government of Pakistan allowing escalation charges to the contractors. However, it appears that the defendant had knowledge in respect of such circulars. The Arbitrator would, therefore, bring such circulars to the knowledge of the defendants and then give his award after hearing the defendants or their counsel on the point.
(3) The Arbitrator shall give his award within four months.
(4) This order is without prejudice to the application filed by the plaintiff under section 28(2) of the Arbitration Act."
3. I have heard Mr. Naimur Rehman, Advocate for the plaintiff who has strenuously supported the award. I have also heard Mr. Saeed A. Sheikh, Advocate for defendants who has opposed the award. I have also perused the file of the arbitration proceedings. At the very outset Mr. Naimur Rehman has raised an objection that the objections filed by the defendant on 3-10-1993 could not be considered as these objections were filed after a delay of six months. Perusal of case file indicates that the present proceedings were forwarded by the learned Arbitrator alongwith his file on 10th March, 1993. Notices were issued to the defendant which were returned duly served and the learned Additional Registrar (0.5.) on 22-9-1993 granted 30 days time to file objections. The instant objections (Civil Miscellaneous 10209 of 1993) were filed within 30 days. Therefore, this preliminary objection being Tactually incorrect is hereby overruled. Even otherwise, a Court hearing an award under section 14(2) of the Arbitration Act, 1940 (hereinafter referred to as the Act, 1940), is competent to look into the legality or otherwise of the award even in absence of any objection as it is the requirement of sections 17 and 30 of the Act, 1940. I am fortified in my view by the two decisions of Honourable Supreme Court in the cases Messrs Awan Industries Ltd. v. The Executive Engineer Lined Channel Division 1992 SCM R 65 and Muhammad Tayab v. Akbar Hussain 1995 SCM R 73.
4. Mr. Saeed A. Sheikh, Advocate for the defendant has objected that the award being barred by time is not entitled to be made rule of the Court. He has referred to subsection (3) of section 16 of the Act, 1940. It is provided in section 16(3) that an award if remitted under subsection (1) shall become void on the failure of the Arbitration or the umpire as the case may be if the decision is not given within the time fixed. In the instant case, this Court while remanding the award directed the learned Arbitrator to give his award within four months. The instant award was given on 10th January, 1993. However, both the parties admit that in Suit No,1027 of 1988, a learned single Judge of this Court while hearing Civil Miscellaneous No,767 of 1992 extended time for six months enabling the learned Arbitrator to comply with the order of this Court, dated 9-8-1990 as reproduced hereinabove. Extension of time was made effective from 25-4-1992 which expired on 20-10-1992 as incorporated in the said order. Accordingly, the instant award was filed after a delay of 2-1/2 months. There is no explanation from Arbitrator's side or from the plaintiff for such delay.
5. It was contended by Mr. Naimur Rehman that the learned Arbitrator has given reason for not filing the award within time which is incorporated at page 4 of the award. It would be advantageous to reproduce the relevant portion referred to by Mr. Naimur Rehman as the same is also the operative portion of the award. It reads as follows:-- "I would, therefore, after due consideration and investigation of the documents brought on the record further and hearing both the parties, reaffirm my award, dated 11-8-1988 which include the item of escalation charges.
' When the award was remitted I was serving as Additional Law Secretary in Islamabad and had to visit Karachi on various dates for hearing the case. The travelling charges had to be borne by the parties. I had, therefore, asked the parties to deposit a sum of Rs,12,500 each towards the travelling charges. The, plaintiff had paid this amount but the defendants regretted their inability to make the payment due to shortage of funds, (their letter of dated 7-11-1991 , No, ADA/W/667/83/120) .
' Now I also fix my fee for rehearing and reconsideration of the case at Rs,30,000 (Rupees thirty thousand only) each party to pay a sum of Rs,15,000 (Rupees fifteen thousand only)."
6. It was also argued from the plaintiff's side that provision of section 16(3) of the Act, 1940 will not come into operation as the award was not earlier remanded by this Court under section 16(1). If what Mr. Naimur Rehman has stated is held to be correct, then the award was remitted to the Arbitrator as provided under section 26-A of the Act, 1940. This section was added through Ordinance XV of 1981 w,e,f, 11-5-1981. It provides that the Arbitrator or the umpire shall state in sufficient detail the reasons for the award to enable the Court to consider any question of law arising out of the said award and where it does not state the reasons in sufficient detail, the Court shall remit the award to the Arbitrator or Umpire, as the case may be to resubmit the award with sufficient details. Again in subsection (3) of section 26-A the same consequences are provided as of 16(3) that the award shall become void on the failure of the 'Arbitrator or umpire to submit the same in accordance with the direction of the Court. In both the situations, the award resubmitted under section 16(3) or 26-A(3) of the Act, 1940 is delayed by 75 days. Then it was argued by Mr. Naimur Rehman that the objection of Mr. Saeed A. Sheikh is highly technical. It was further contended that no objection was raised before the Arbitrator for causing delay in remitting the award within the time prescribed and, thus, the defendant acquiesced in the acts of the Arbitrator and could not, in the circumstances, raise plea of delay. He has placed reliance on the cases Messrs Qamaruddin Ahmad & Co. v. Government of Pakistan 1983 SCMR 1775 at 1777. In that case, it was held by a Full Bench of Honourable Supreme Court that where an award was filed- after expiry of four months without seeking extension from the Court and where a party, after the time for giving the award had expired and such party, without any objection participated in the proceedings and sought adjournments, the Court was justified in extending time under section 28.
The facts of the instant case are quite distinguishable. After remand of the award on 9-8-1990 the first hearing was conducted by the learned Arbitrator on 3-11-1990. On 5-1-1991, the leaned Arbitrator received documents from the parties who were directed to file their written arguments.
The matter was adjourned to 19-1-1991 at 2-00 p.m. Lastly it was on 9-3-1991 when Mr. Saeed A.
Sheikh appeared before the learned Arbitrator and the matter was adjourned to 30-3-1991.
Thereafter, it appears no proceeding was conducted till 29-10-1991 when the learned Arbitrator directed that notices be issued to the parties. On 28-9-1992, the matter came up after a lapse of nearly 11 months and nobody appeared. Still the learned Arbitrator directed the parties to deposit Rs,15,000 each as his fee. Thereafter, the second date was 10-1-1993 when the award was passed.
After expiry of the time extended by this Court which expired on 25-10-1992, none appeared from the defendant's side and in these circumstances, it cannot be said that the defendant acquiesced in the acts of the Arbitrator and that they cannot raise plea of delay in resubmitting of the award.
7. From whatever angle, either section 16(3) or 26-A(3) of the Act, 1940, this award is considered, admittedly, it was remitted by the learned Arbitrator after expiry of the time ultimately extended by this Court. The award, therefore, is to be treated to be void and cannot be made rule of the Court.
The suit stands dismissed with no order as to costs.