' The present transfer application has been filed with a prayer to transfer First Rent Appeal No,230 of 2001 pending in the Court of 1st. Additional District Judge, Karachi South to the Court of any other Additional District Judge.
' At the outset Mr: Safdar Hussain Fani, learned counsel for the respondent submitted that the present application was not maintainable as according to him such an application was to be made to the learned District. Judge, who is the Appellate Authority. It was further contended by him that subsection (1-B) of section 21 of the Sindh Rented Premises Ordinance, 1979, empowers the District Judge to recall an appeal referred to an Additional District Judge and either hear it high self or refer it for disposal of another Additional District Judge.
' On the other hand Mr. Sohail Muzaffar, learned counsel for the applicant,' while referring to subsection (1-E) (b) of the above said section submitted that High Court has the power to withdraw any appeal pending in the District Court and transfer the same to any other competent Court.
' Mr. Sohail Muzaffar further added that he had made a similar application for transfer before the learned District Judge Karachi South, but such application was returned to him by the office, on the ground that the District Judge had no jurisdiction. He, however, failed to produce any such order or a copy of the transfer application stated to have been filed before the District Judge.
' Subsection (1-B) of the above section is very clear on the point, which may be reproduced below.:- -- "(1-B) The District Judge may recall n appeal referred to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge."
From the perusal of the above, it is very much clear that the' District Judge can recall an appeal referred to an Additional District Judge and either hear it himself or refer it far disposal to another Additional District Judge. Mr. Sohail Muzaffar, learned counsel for the applicant wanted the appeal to be decided by any other Additional District Judge in the District. Admittedly, the above FRA was referred to the Court of learned 1st. Additional District Judge, Karachi (South), by the District Judge of the District. Hence such District Judge was competent to recall such an appeal and either hear it himself or refer it for disposal to another Additional District Judge.
' In view of the above, this application is dismissed as not maintainable. The applicant may file such an application before the Court of learned District Judge.
On being ' pointed out by Mr. Fani that the applicant wants to prolong the matter as the rent case was filed as far back as 1991, it is directed that in the event of filing of similar application the learned District Judge, shall decide the same expeditiously and the learned Court seized of the above appeal shall decide the appeal within a period of two months.
Case remanded.
2002 YLR 1494 [Karachi] Bafore Anwar Mansoor Khan, J M. IFTIKHAR & COMPANY (PVT.)
LTD.---Plaintiff versus PAKISTAN. STEEL MILLS LTD.---Defendant Suit No,1717 of 1997, decided on 27th. September, 2001.
(a) Arbitration Act (X of 1940)--- ----Ss. 14, 17, 30 & 33---Limitation Act (IX of 1908), Ss.,5, 14(2) & Art. 158---Sindh Chief Court Ales (0.S.), Rr.280 & 282(1)---Objections to' award, filing of---Limitation--Non-filing of objections in time due to non-supply of copy of award by arbitrator for non-payment of his fee---Award accompanied by application under S. 14(2) of Arbitration Act, 1940 was filed in Court on 23-12-1997- --Notice of award was received by respondents on 21-1-I998---Respondents on 27-1-1998 filed Vakalatnama of the counsel-Application- for certified copy of award was made on 28-1-1998, which was received by them on 13-2-1998---Objections to award were filed on 9-3-I998--- Contention of respondents was that time spent in obtaining certified copy was liable to be excluded, therefore, time as provided under Art.158 of Limitation Act, 1908, would run from 13-2-1998 and not from date of service of notice of filing the award-Validity-Copy of award was available with respondents as had been stated in affidavit annexed with their application---Respondents could have taken certified copy of award, in case same was not available with them-Certified copy of award had admittedly been taken---Objections were beyond limitation as notice of filing award had been served on 21-1-1998 and time for filing objections to award had expired on 20-2-1998-- Section 5 of Limitation Act, 1908, being not applicable, extension in time could not be granted--- Award being validly filed had to be seen on its own merits---Court did not accept objections to award as being time-barred. [pp. 1502, 1503, 1505] A, B & C Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 80Q; Inayatullah Khan v.
Obaidullah Khan and others 1999 SCMR 2702; Standard Insurance Company Ltd., Multan v. Fazal Cotton Industry and another 2000 MLD 1564; Burma Oil Mills Ltd., Karachi v. Messrs Colony Textile Mills Ltd. 1980 CLC 512 and Akhtar Trading Co. v. Food Department and others 1991 CLC 258 ref.
(b) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Making award rule of Court-Duty of Court to examine award suo MOW in.
Absence of any objections---Scope--Question,whether all objections that may need to be taken up in application under S.33 and all objections as provided in S.30 of the Act would have to be scru. tinisedValidity-Section 17 of the Act comes into play after time for making application to set aside award under Ss. 30 & 33 of the Act is expired or where same has been refused-- Expression "where the Court sees no cause to remit.Award" as used in S.17 of the Act, gives a wide scope to the Court to look into all the aspects contained in 5.30 of the Act and see, if there ,ore grounds for setting aside or modifying the award. [p. 1506] D Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 and Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 ref.
(c) Arbitration Act (IX of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of 1908), Art.158---Making award ride of Court---buts of Court to scrutinize award in absence of objections thereto---Scope--- Objections to award filed under S.33 of the Act being time-barred were refused by Court---Effect---Court could itself, scrutinize award7--While doing so, Court was not required to act as a Court of appeal and could not substitute its own finding on appreciation of evidence-Duty of the Court was to see, in absence. Of any objections, whether award suffered from cini.; legal defect or infirmity. [p. 15071 E Pakistan through General Manager, Pakistan Railways v. Messrs O.M.R. Expert. Consultants PLD 1990 SC 800 and Messrs Abdullah Traders v. Trading Corporation of Pakistan Ltd. And 2 others 1999 CLC 2047 ref.
(d) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of .1908), Art. 158---Making award rule of Court--Court sought assistance of respondent, after dismissing his objections to award made under S.33 'of the Act as being time-barred---Such objections filed could not be looked into or argued before Court- - Excessive burden had been Cast on Court to determine correct facts---Court allowed Counsel of respondent to argue matter only to show any misconducted proceedings---Court did so only for the purpose of determination, whether award could or could not be set aside, and whether the proceedings or any part thereof had , been misconducted or not within the scope of S.30 of the Act.
[pp. LSO& 15091 F & G
(e) Arbitration Act (X of 1940)--- ----Ss. 17, 30 & 33---Limitation Act (IX of 1908), Art. 158---Making award rule of Court-Powers of Court to examine award on its own in absence of objections---Objections to award not considered by Court for being time-barred--Court could proceed under S.17 of Arbitration Act, 1940 to examine, award---Both parties duly represented before arbitrator had put up each contract separately and argued the matter- Arbitrator in award had given details of each contract separately--Award was-based on evid,ence-Documents produced were admitted documents---All claims of claimants and counter-claim made by respondents had been stated in award and dealt, with by arbitrator-Court made award rule of the Court in circumstances. [pp. 1509, 1510, 15141 G, H, J & S
(f) Arbitration--- ----Contractual obligation---Jurisdiction of arbitrator---Contractual obligation including the arbitration and jurisdiction would naturally .Run from each of the specific contracts entered into. [p.
1509] 1
(g) Arbitration Act (X of 1940)--- ----Ss. 30 & 33---Grounds for setting aside award---Jurisdiction of Court to enter into factual controversy---Scope---Objection to award was that various claims filed by claimant before Arbitrator were timebarred-Validity-Duty of Court was to see, whether Arbitrator had exceeded his jurisdiction in deciding the matter, which did not fall within the ambit of various claims---Arbitrator had rejected objection as to limitation after having dealt with matter at some length---Court would not enter into factual controversy, which was the domain of Arbitrator. [p. 1511] K
(h) Words and phrases--- - ---"Perverse"---Meanings. [p. 1512] L Qazi Ghulam Ahmad v. J.F., Elahi, Election Tribunal, Chakwal and others PLD 1962 Lah. 786; Parry's Employee's Union v. Parry & Co., Ltd. And others AIR 1966 Cal. 31; Aiyer's Judicial Dictionary, 11th Edition, page 867; Aiyer's Law Lexicon, 1997 Edition, page 1457; Law Terms and Phrases by Makal, page 686 and Words Phrases by Kakahel 3918 ref.
(i) Arbitration Act (X of 1940)--- ----S. 30---Grounds for setting aside award---Arbitrator was not obliged to give findings on each and every issue comprising the reference---Insufficiency of evidence or non-consideration of empire evidence by Arbitrator or his failure to consider a particular, piece of evidence or the possibility of a different and more plausible view of the matter in dispute could not be a ground for interference with an award under S.30 of the Act. [p. 1513] M & N Messrs Joint Venture KG/Rist v. Federation of Pakistan and 2 others PLD 1996 SC 108; Province of Punjab and others v. Messrs Mian Muhammad Saleem & Co. 1985 SCMR 1215; Ghulam Abbas v.
Trustees of the Port of Karachi PLD 1987 SC 393; Messrs Badruddin H. Mavani v. Government of Pakistan, Ministry of Food and another 1981 CLC 339; Messrs National Construction Co. v. The West Pakistan Water and Power Development Authority PLD 1987 SC 461; Abdur Rahman Munshi and 7 others v. Dr. Abdul Malek and 11 others 1968 SCMR 275; Gulzar Hussain Awan v. Akbar 1984 CLC 3164; Moinuddin Siddique v. Saleem Siddiqui 1984 CLC 2568; Messrs Alpha Insurance Co. Limited v.
Messrs Ch. Nizam Din & Sons and another 2001 CLC 289; Messrs Ghee Corporation of Pakistan Ltd. v.
Messrs Kouk Oils and Grains (Pvt.) Ltd. 1999 MLD 2617; Turner Morrison Garahams Group of Companies, London v. Rice Export Corporation Pakistan Ltd. PLD 1998 Kar.79; Zakaullah Khan v.
Government of Pakistan PLD 1998 Lah. 132; Messrs Ibad & Co. v. Province of Sindh and 2 others PLD 1980-ar.207; The Premier Insurance Co. (Pakistand., Karachi v. Ejaz Ahmed Khawaja and 3'others 1981 CLC 311; AJ&K Government v. Ghulam Rasul Lone 1983 CLC 926; Associated Constructors Ltd. v.
Karachi Municipal Corporation 1982 CLC 1984; Messrs Qamar Din Ahmad & Co. v. Pakistan and another PLD 1971 Lah. 380; Baluchistan Province and another\v. Malik Halt Gul Hassan PLD 1982 Quetta 52; Faizanul Haq v. Irfanul Haq, etc. 1986 MLD 2750; Province of Baluchistan v. Messrs Tribal Friends Company, Loralai PLD 1986 Quetta 321 and Messrs Hussain Textile Mills Limited, Karachi v. Messrs Dada Sons Limited, Karachi PLD 1973 Kar. 413 ref.
(j) Arbitration Act (X of 1940)- - ---Ss. 13, 8, 20, 23 & 2(a)---Jurisdiction of Arbitrator---Scope---Arbitrator has to act within the jurisdiction, scope of reference and arbitration agreement. [p. 1513] 0
(k) Arbitration Act (X of 1940)--- - ---S.30---Award, setting aside of---Grant of interest/general mark-up and profit from date of award, until decree---Validity---Court disallowed same being in excess of jurisdiction, scope and authority of Arbitrator. [p. 1514] P, Q & R
(1) Arbitration Act (X of 1940)--- ----Ss. 14(2), 17 & 38---Arbitrator's claim as to fee and costs due in respect of arbitration--- Arbitrator filed award in Court alongwith application under S.14(2) of the Act---Court while making award rule of Court allowed-such claim of Arbitrator and directed respondents to pay their share of costs stated in award. [p. 1514] S & T Rahim v. Shahban and others AIR 1935 Sindh 200 and Shib Krishna Tarafdar v. Sunil Kumar Tarafdar AIR 1949 Cal. 189 ref. Bilal A. Khawaja for Plaintiff. Akhtar Ali Mehmood for Defendant.
Date of hearing: 21st November, 2000.
' This is an application under section 14 of the Arbitration Act, 1940 (hereinafter referred to as the Act of 1940) whereby the sole arbitrator has filed the award in Court, in the said application, however, upon filing, the sole arbitrator has stated that the Pakistan Steel be directed to deposit in Court their share of the fee, due to the arbitrator before any application of any party challenging the validity of award or otherwise is entertained. An application being C.M.A. No,784 of 1998 was filed by the respondents namely Pakistan Steel Mills Ltd.: seeking directions to supply copy of the application under section 14(2) alongwith award so as to enable the defendants to file their objections to the said award. On 4-8-1998, an order was passed on the said application, dismissing the same, on the ground that the application had become infructuous as, the objection had already been filed. Before I proceed to deal with the merits of the arbitration award, it is important to thrash out the positions taken up by Mr. Akhtar Ali Mehmood, Advocate for Pakistan Steel, as to whether the application under section 14(2) filed by the arbitrator could be deemed to be an application within the meaning of law and the objection of Mr. Bilal A. Khawaja for the Plaintiff whether the objections filed thereto were valid, within time and could be accepted.
2. The facts as propounded by Mr. Akhtar Ali Mehmood are that, in 1992, Mr. Fakhruddin G. Ibrahim who was appointed as sole arbitrator entered reference on the basis of an order passed by this Court on 13-12-1990 in Suit No,511 of 1987. The proceedings concluded on 12-7-1997. It is stated by Mr. Akhtar Ali Mahmood that on 15-7-1997, the arbitrator fixed his fee at Rs,3.5 million requiring, the parties to pay the same equally. On 27-9-1997, the arbitrator issued a notice under section 14(1) of the Act of 1940 for announcement of award. The award was announced on 6-11-1997. A copy of the award was, however, not delivered to the respondents as, the arbitrator claimed lien thereon, on the ground, that Pakistan Steel, the defendant herein failed to settle the arbitrator's fee. It is stated that on 7-11-1997 Pakistan Steel addressed a letter to the arbitrator that, the copy of arbitration award had not been received by them. The arbitrator on 1-12-1997, wrote back to state that he would not supply the copy, however, the same could be collected by Pakistan Steel, upon paying their share of fee for arbitration. In view of the refusal to pay their share of fee, and aggrieved by the arbitrator's claiming lien on the arbitration award, the said defendants filed a Judicial Miscellaneous Application No,4 of 1998 praying, inter alia, that the, arbitrator be directed to deliver the award, to the petitioner and that the Court determine a reasonable fee. The application was ordered to be heard along with the main case-.
3. Upon the arbitrator' filing the application under section 14(2) on 23-12-1997, notice under section 14(2) was received by the defendants on 21-1-1998. According to Mr. Akhtar Ali Mehmood, the matter was fixed before the Additional Registrar on 27-1-1998 when the Vakalatnama was filed and it was, at that point in time that the defendant was informed / of the arbitrator's objection, that he has claimed lien on the said award and that a copy thereof, ought not, therefore, be delivered to the' said defendant, till such time they pay their share of fee to the arbitrator. However, the defendant on 28-1-1998, moved an application for a certified copy of award, which copy was received by the respondent on 13-2-1998 and objections were filed on 9-3-1998. . Mr. Akhtar Ali Mehmood, Advocate states. That the time for receiving the certified copy is. Liable to be excluded.
According to him the time shall run from 13-2-1998 and not from the date of the service of notice of filing the award as provided under Article 158 of the Limitation Act, 1908. According to him the service could be said to be good only when he received the copy of the said award which was 13- 2-1998. According to him the objections were filed on 9-3-1998 within the stipulated period of 30 days, as such the objections were within time. Mr. Akhtar states, that notwithstanding the fact of the receipt of notice, in fact, the filing of the application under section 14(2) is also improper and that, Article 158 would not be applicable to the provisions of subsection (2) of section 14 of the Arbitration Act which postulates, that when there is no dispute' with the arbitrator as regards the fee, costs and charges and upon payment thereof the award is liable to be filed. According to him, the award could only be filed under the provisions of section 14(2) which reads as under:-- "(2) The arbitrators or umpire shall at, the request of any party to the arbitration agreement or any ,person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration."
' Mr. Akhtar Ali Mehmood states, that the award could only be filed upon payment of the fees and charges due in respect of the arbitration and of the costs, and charges for filing the award. He says that if there was a. Claim of the arbitrator, ought not to have filed the award, till such time, the claim is settled and that, if the party choosing to enforce the award requires the arbitrator to file the same, he ought to have made the entire payment to the arbitrator. According to him, once the award is filed in Court, it will be deemed, that the arbitrator has foregone his right on the amount and the entire amount be deemed to have been paid. Otherwise also, if the lien according to him had, been exercised, filing in Court would amount to waiver of the lien on the award. According to Mr. Akhtar Ali Mehmood, the provision of section 38 of the Arbitration Act is clear, that if in case of arbitrator or umpire refusing to deliver his award except on the payment of fees demanded by him, the Court may on an application in this respect, direct the arbitrator or umpire to deliver the award to the applicant on payment into Court, by the applicant of fees demanded and shall, after such inquiry as the Court deems fit, further order that, out of the money so paid into Court, there shall be paid to the arbitrator or umpire by way of fees such sums as the Court may consider reasonable.
According to Mr. Akhtar Ali Mehmood, the award was filed directly by the arbitrator and not on orders of this Court and upon the award having been filed it is liable to be delivered to the said defendant and has further stated was delivered on 13-2-1998.
4. Mr. Akhtar Ali Mehmood further argues that under rule 282 of Sindh Chief Court Rules, it is provided that the arbitrators or umpire shall cause the award or a signed copy of it to be filed in Court by forwarding the same in a sealed cover to the Registrar (O.S.) in Form 12-B of Appendix ' A', requesting the same to be filed. According to him in Form 12-B Annexure ' A' to the Sindh Chief Court Rules, the words "at the request of" is included, which is clear evidence that the arbitrator ought to have stated as to who had required the award to be filed. According to him, the Form ought to have been filed alongwith the award and that, when the words "at the request of" is stated the party requesting should have made the payment, if any, to the arbitrator and in not doing so.
Notwithstanding the fact, that subsequently claim was made such a claim was unlawful and, therefore, there would be no dispute in regard to payment of charges. Mr. Akhtar in this regards has referred to the case of Rahim v. Shahban and others (AIR 1935 Sindh 200) in which it was held.
"If the arbitrator so wished he could have insisted upon payment of the fees before he patted with the award. But in view of what is stated in the award I am afraid I cannot help him. The Advocate who appears for arbitrator has argued that as in one of the cases decided by this Court under section 10, Civil P.C., it was held that as an arbitrator was also party to the proceedings filed under Indian Arbitration Act, but not a party to the suit, the suit should not be stayed. I am not concerned with an application for stay of the suit under section 10 and I do not propose to go into the question whether or not an arbitrator is a party to or interested in the proceedings under the Indian Arbitration Act while he is not a party,to the suit on the original cause of action.
' It is sufficient for me to observe that the award as it stands cannot be enforced as a decree so far as the arbitration fees go. The arbitrator has indubitably a right to file a suit for recovery of his fees as would appear from the ruling quoted by my brother Aston in J. Misc. No, 500 of 1921 and also from the case of Crampton & Holt v. Ridley & Co., (1887) 2 QB 48."
' He has further referred to the case of Shib Krishna Tarafdar v. Sunil Kumar Tarafdar (AIR 1949 Calcutta 189) wherein it was held as follows:- "(5) It was contended before us on behalf of the petitioner that the Court could not be powerless to grant some relief to the parties in a case like the present and that a party ought not to be allowed to nullify a reference by sheer recalcitrance and by refusing to pay the arbitrator's fees. That may be true, but the question before us is whether the law authorises the Court to grant relief in the particular form insisted on by the petitioner. It appears to us that the Arbitration Act addresses itself to this very question and prescribes a remedy which is not the remedy .Proposed by the petitioner.
(6) The two relevant sections are section 14 (2) and section 38. Section 14(2) provides that the arbitrators or the umpire shall, at the request of any party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration, cause the award or a copy of it to be filed. It is clear that two conditions must be fulfilled, before an arbitrator can be compelled to file an award. -There must be a request by a party to the arbitration or a direction by the Court, and secondly, the fees and costs of the Arbitrator must first be paid. The other provision in section 38 of the Act which lays down that if in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and then Court should after further enquiry order that out of the money so paid, there shall be paid to the arbitrator by way of fees such sums as the Court may consider reasonable, subsection (2) of this section, however, provides that subsection
(1) will not apply in a case where the fees have been fixed. There may be some question as to whether the present case is one where the fees have been fixed,' for all that has been fixed is the rate per sitting. But whether section 14 (2) applies to the present case or section 38 does, it is quite clear that, in either case, the applicant cannot have the award filed unless he pays of the balance of the fees due to the arbitrators. The Act, it appears to us, does not provide that if any of the parties does not pay his share of the arbitrators' fees, the Court has power to compel him to do so by means of an interim order at the instance of another party who has paid his share and wants to have the award filed.
(7)Some further light on what the Act intends is thrown by two other sections of the Act, name'y, sections 18 and 41 (b), section 18 deals with the case where an award has been filed and a decree has been passed. But where some one of the parties, has been trying to defeat or delay or obstruct the execution of the decree passed upon the award, in a such case, the Court is specifically empowered by section 18 to pass interim orders that may be deemed necessary in order to meet the situation created. It is significant that the Act does not contain any corresponding provision for passing interim orders before the stage at which the award is filed. The other section (section 41) deals with the powers of the Court in relation to arbitration proceedings and it provides that the Court has power to make orders in respect of the matters set out in Schedule 2 to the Act. A reference to Schedule 2 shows that the matters there provided for are appointment of a receiver and granting of injunctions and taking certain other steps for the preservation of the property. It is again significant that the Act, when specifically providing for orders which the Court can pass in relation to arbitration proceedings, does not provide that it can, if necessary, pass orders directing parties to pay their proportionate shares of the Arbitrator's fees in order that the award may be brought on the record. In our opinion, there is no warrant in the Arbitration Act for any interim order by the Court, directing the parties to pay the arbitrator's fees.
(8).................
(9) The Act, it appears to me, provides for two remedies and two remedies only. One is that the party who wishes the award to be filed can have his wish fulfilled by paying the costs himself. The recovery of the costs from the remaining parties must form the subject-matter of a separate proceedings or may perhaps be adjusted at the time of passing the final decree. The other remedy, it seems to me, is that if it is found that the arbitration is being brought to nothing by the recalcitrance of one of the parties who is refusing to pay his share of the arbitrators' fees, the person aggrieved may well-make that a ground for an application for superseding the reference.
The plaintiff has had these remedies open to him and if he did not take advantage of either he cannot except the Court to grant him a third and a new kind of remedy."
5. Mr. Akhtar states that section 12(4) of the Limitation Act excludes the time spent in obtaining copies and refers to the judgment in Pakistan through General Manager Pakistan Railways v.
Messrs. Q.M.R. Expert Consultants (PLD 1990 SC 800) in which it was held as follows:-- "9. In the above four cases, the Rangoon, Madras, Calcutta and Allahabad High Courts (first two cases were decided by Single Benches and the last two cases by Division Benches, it has been held that the time requisite for obtaining a copy of the award for filing objections is to be excluded under section 12 of the Limitation Act. We may point out that the above provisions refers to the requisite for obtaining of a certified copy of the order/judgment/award. In the present case the appellant had not applied for a certified copy of the award, but their Advocate was furnished with a copy of the award voluntarily by the Advocate for the respondent and, therefore, section 12(4) of the Limitation Act cannot be pressed into service."
' Mr. Akhtar Ali. Mehmood states that the arbitrator chose to file the award and that upon filing he has forgone his right. He has referred to the judgment in Inayatullah Khan v. Obeithillah Khan and others (1999 SCMR 2702) in which it was held:-- ' Even otherwise, this point could lose significance and nothing would turn on because in the latter part of this judgment we are going to hold that the arbitrators by themselves were not competent to file the award in Court as such filing of an award was not envisaged under section 14 of the Act because the arbitrators had neither been requested by any party to the arbitration agreement to file the award in Court nor had been so directed by the Court...."
' According to Mr. Akhtar, the claimants (M. Iftikhar & Company (Pvt.) Ltd.) has requested the arbitrator to file the award. He has done so without giving copy thereof to the defendants.
According to him the arbitrator could not tile the award suo motu and could only be filed upon a request by one of the parties and which has been done in this case. According to him, the application 'being C.M.A. No,784 of 1998 was dismissed as infructuous by an order dated 4-8-199 the that branch had given him the certified copy' as foretasted, on 13-2-1998 and the objections were filed on 9-3-1998. Therefore, even if the award has been- filed properly, the objections are within time and are liable to be considered.
6. On these questions, Mr. Bilal A. Khawaja, Advocate on behalf of the claimant M.I.C. Traced the history. He stated that the controversy started between the claimant and the defendant in November, 1985 when, Mr. H.N. Akhtar was agreed to be appointed as sole arbitrator which was confirmed on 28-6-1986. In July, 1987 Mr. Akhtar was transferred and could not continue. Mr. Akhtar was agreed to be substituted in a meeting on 13-4-1989, when Major S.A. Bulchari was to act as arbitrator till decision notwithstanding the fact that he may or may not remain the Chairman of Pakistan Steel.
7. Mr. Bilal A. Khawaja, Advocate rebutting the arguments of Mr. Akhtar Ali Mehmood stated, that the objections were barred by time. He states that an application being C.M.A. No,784 of 1998 was moved With a prayer, that a direction be given to the office of this Court to supply a copy of the application and award. According to him, the application was presented on 6-2-1998 supported by an affidavit of Lt. Col. S. Aslam Zaidi, In charge Law, Pakistan Steel, According to him, note of the Law Department, written by the said Lt. Col. S. Aslam Zaidi who was Acting General Manager Law, dated 4-2-1998, written two days prior to the filing of the application categorically speaks of the award being available with them. I have perused the said application (C.M.A. No,784 of 1998) which was no doubt presented on 6-2-1998. Alongwith the said application is also a Note bearing No, Law/HC/Civ/98/106 dated 4-2-1998 in which it is pointed out:-- "4. In the subject case, copy of the Award is attached but the Court has so far not supplied the application and its Annexures including the Award to us apparently due to an application forwarded by Mr. Justice (R.) Farkhru, t G. Ibrahim addressed to the Court, with a copy to Pakistan Steel.
5. The Notice in the subject case was received on 21st January, 1998 and we should file the Objections to the Award by or before 20th February 1998."
' In the said note it is also written:- "7. This is a lengthy and time-consuming case for 'which due care is to be taken by all concerned and Objections to the Award need to be submitted well within the period of 30 days limitation i,e, by or before 20th February, 1998."
Evidently, the said Lt. Col. (R.) S. Aslam Zaidi has stated that, the period of limitation would expire by or before 24-2-1998. Such is the position. The objections have been filed on 9-3-1998. According to Mr. Bilal. A. Khawaja as the objections have been filed by time, under Article 158 of the-- Limitation Act, 1908 (hereinafter referred to as the Act of 1908) which provides 30 days for the filing of the objections to the award from the date of service of notice of filing the award. Admittedly, the notice was served on 21-1-1998 and the time for filing the objections to the award, therefore, expired on 20-2-1998. Mr. Bilal states that section 5 of the Act of 1908 has not been made applicable to Article
158. According to him, therefore, the period provided by law cannot be extended. In the case referred to by Mr. Bilal being Standard Insurance Company Ltd., Multan v. Fazal Cotton Industry and another (2000 MLD 1564), it has be held, despite the fact that the Court had extende the period within which the objections the award could be filed and that as:-the Court was not competent to extend the prescribed limitation, none of its orders could directly or indirectly be construed to have granted extension in time for filing of the award. In the case of Burma Oil Mills Ltd., Karachi v. Messrs.
Colony Textile Mills Ltd. (1980 CLC 512) the question of extension of time for filing of award under Article 158 was discussed and it was held:-- "....The fact of the matter is that on 19th July, 1978 they raised objections against the said award and thus their application under section 151 of the Code was for all intents and purposes, an objection petition against the subsequent award. Therefore, its competency had to be examined in the light of provisions of Article 158 of the Limitation Act, and since it was time-barred according to those provisions the learned Senior Civil Judge was justified in dismissing the same on the ground of limitation. It has also been noted by the learned Senior Civil Judge, with reference to the That Development Authority v. Nisar Ahmad Qureshi (PLD 1962 Lahore 830) that although the provisions of section 5 of the Limitation Act did not permit the Court to condone delay in such-like cases yet the petitioner had not made any prayer in that behalf,"
' In the case of Akhtar Trading Co, v. Food Department and others (1991 CLC 258) the similar proposition has been taken and decided in the same manner, that time-barred objection to award cannot be taken into consideration. Mr. Bilal has referred to the diary sheet of the file dated 10-3- 1998 which categorically speaks of the objections to the award being beyond time a is an office note of the Additional Registrar dated 28-2-1998 reference of which is also made. It is stated in the said note:-- "In obedience to the Order of the Hon'ble Court dated 16-2-1998, directing the Additional Registrar (0.S.-I) to submit his reply to the application under section 151, C.P.C. (C.M.A. No, 784 of 1998) made by the counsel for the defendant for directing the office to provide copy of the application under section 14(2) and the Award to enable the respondent to file objections to the Award, if deemed appropriate, the undersigned submits as follows:-- ' It is submitted that the Award accompanied by an application under section 14(2) of the Arbitration Act was filed in this Hon'ble Court on 23-12-1997 in accordance with rule 282(1) of SCCR (O.S.) by the learned Arbitrator. For the purpose of this application, it is submitted that rule 280 SCCR (O.S.) provides that:-- 'A special case shall be forwarded to the Registrar (O.S.) accompanied by the documents or copies of the documents therein referred to. The Registrar (0.S.) shall fix a day for the appearance of the parties before him and issue a notice to the parties'.
' It is submitted that in accordance with the said rule, the notices of Award were issued to the parties, requiring them to file objections to the Award, if any. The said notice was served on the defendant on19-1-1998 and the application under reply has been made on 6-2-1998 despite the fact that the time limit as prescribed under the law is 30 days for filing objections to the Award from, the date of service of notice and not from the date of receipt of copy of Award.
' It is further submitted that there is no provision either in the Civil Procedure or Sindh Chief Court Rules (O.S.) under which the parties are entitled to have a copy of Award from the office. Even if it is presumed that a copy of Award was not supplied by the Arbitrator before filing of the Award, it was for the defendant to immediately apply for grant of certified copy of the Award without' loss of time and should have filed their objections within the time prescribed under the law, wherein the alleged plea for non-supply of copy of Award should have been taken as one of preliminary objections but the time for filing objectiong has since expired. The non-filing of objections in the absence of the copy of the Award, as stated in para. 5 of the application under reply does not justify the defendant for further extension of time to file objections to Award.
' It is respectfully pointed out that on 27-1-1998, the learned Arbitrator filed his objection, wherein he invited the attention of the Hon'ble Court to the effect that his fees have not been settled by the defendants and had requested the Hon'ble Court to direct the defendant to settle the Arbitrator's fees before further proceedings are taken in the matter, Statement may kindly be seen at flag "A".
Reference to the diary of the A.R. Dated 27-1-1998. "Copy supplied to the defendant" is in respect of copy of Arbitrator's objection.
' From the above submissions, it is clear that the defendant is not entitled to have a copy of Award from the office."
' In view of the above, it is stated by Mr. Bilal A. Khawaja that the objections are barred by limitation therefore, the said objections cannot be taken into consideration.
8. Rebutting the argument that an award has not been filed in accordance with the provisions of section 14(2) of the Act of 1940, it is stated by him that the provisions of section 14(2) are clear that, the arbitrator. Or umpire shall at the request of any party to the arbitration agreement file the said award in Court upon payment of fees and charges due in respect of the arbitration award and costs and charges of filing. Mr. Bilal states that the argument of Mr. Akhtar Ali Mehmood, that where the payment has not been made by one of the parties and that where the award has been filed in Court claiming the said amount of fees, it would not nullify the filing of the award or the award itself. According to him, the award has been filed at the request of the claimant namely M/s. M.
Iftikhar & Co. (Pvt.) Ltd. (MIC), According to him such is shown in the application under section 14(2), where it is stated that "The claimant MIC has requested the arbitrator to file the award in Court."
According to him, as regards the fee which Mr. Akhtar states, that it ought to be paid in its entirety before such award if filed in Court, is incorrect. According to him it is not the import of section 14(2).
He reads the provisions of section 14(2) again and states, that the person claiming and requesting the arbitrator to file the award should pay his due amounts to the arbitrator, Otherwise also, according to him, if the arbitrator refuses to file the award upon non-payment, the Court. Could direct him to do so. According to him, the reading of the provision that, the party requesting the arbitrator to file the award would do so, "upon payment of the fees and charges due in respect of the arbitration and award and of costs and charges of filing the award.... "According to him, therefore, the claimant having paid the entire amount the award has been properly filed and is not a nullity.
9. I agree with the arguments of Mr. Bilal A. Khawaja on this question that the objections are beyond limitation and that section 5 of the Act of 1908 not being available, the time for extension cannot be granted. In this case also, it is clear that the copy of the award was available with the respondents, as apparent from the note of the said Lt.-Col. S. Aslam Zaidi. In case it was not available, the respondents after notice could have taken a certified copy. In fact, admittedly a. Certified copy had been taken, wherefore the application being C.M.A. No,784 of 1998 was dismissed. The award being validly filed, it has to be seen on its own merits. I am, however, not inclined to accept the objections, as they are filed beyond time.
10. However, notwithstanding the fact that objections cannot be filed, Mr. Akhtar states, that the merits can be seen by this Court and he could proceed. The question, however, would be, that where objections have been stated to be barred by limitation and where there are, therefore, no objections to the award, can this Court, without scrutinizing the award itself, proceed to make it rule of the Court and decree the suit, For the purposes of answering this question, the provisions of section 17 of the Act of 1940 would be required to be scrutinised. The bare reading of section 17 would show that the court, where it sees no cause to remit the award referred to arbitrator for reconsideration or to set aside the award, it shall proceed, after time for making an application to set aside the same has expired or where such application has been moved, has refused to pronounce the judgment according to the award and upon pronouncement, a decree shall follow if no appeal shall lie. The important aspect that need to be looked into for the purposes of interpreting section 17 of the Act of 1940 is "where the Court sees no cause to remit the award...After the time for making an application to set aside the award is expired, or such application having been made, after refusing it....". There are categorical provisions that the Court has to see that, there is no cause in the award itself to remit the same. Section 17 only comes into play after the time for making the application to set aside the award is expired or where an application made under sections 30/33 has been refused. Thus, it will be clear, that this Court would be required to proceed and look into the award itself to find out as to whether the award is valid or not.
11. The question would, however, be as to what extent would this Court go into the said award.
Whether all the objections that may need to be taken up in an application under section 33 and all the objections as provided in section 30 would have to be scrutinised. From a bare reading of section 17, it will be seen that when, it is mentioned that the Court sees no cause to remit it is mentioned, it gives a wide scope, to the Court, to look into all the aspects contained in section 30 of the Act of 1940 and see if there are grounds for setting aside or modify the award.
12. In the case of M/s. Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another (1992 SCMR 65), it has been held:-- "17. But, in his submissions, he ignored the provision of section 17 of the Arbitration Act, which imposes a duty on Courts to see that there is no cause to remit the award or any of the matters referred to A arbitration for reconsideration or to set aside the award. This can be doney the Court suo motu, apart from the application which a party may make for either remission of the award or its reversal. Where, therefore, an award is found to be nullity because of the invalidity of the arbitration agreement or, for any other reason, or the award is prima facie illegal and not fit to be maintained, the Court has power under section 17 of the Act to set it aside without waiting for an objection to award being filed or without considering any application for setting it aside, if there be any, an irrespective of the question whether or not any objection to the award was filed or whether the objection, if filed, was not within time. In such cases section 30, clause (c) of the Act is also attracted. Another example can be where a party appoints a sole arbitrator without prior notice to- the other party, the award would be prima facie illegal and may be set aside. See Abdul Kale v.
Province of East Pakistan and another (PLD 1964 Dacca 166, and M/s. S.M. Fazail & Company v. M/s. Overseas Cotton (PLD 1959 Karachi 739)."
' In another case namely Muhammad Tayab v. Akbar Hussain (1995 SCMR 73),.It has been held:-- "6. In the circumstances we are of the view that learned single Judge in the High Court should not have refused to go into the merits of the case on the ground that objections were filed beyond stipulated time particularly in view of the plea taken by the appellant that he was not served with notice in the arbitration proceedings. We, therefore, set aside the impugned judgment in High Court appeal and also impugned order of the learned single Judge in the High Court to examine the record of the arbitration proceedings to find out whether the plea taken by the appellant about on-service of notice is justified or not. This seemingly can be done without going into the question of limitation as is observed in the ruling mentioned above. The appeal is allowed in the terms stated above."
' In the case of Pakistan through General Manager, Pakistan Railways v. Messrs. O.M.R. Expert Consultants (PLD 1990 Supreme Court 800), it has been held as under:-- " ....However, we may observe that under section 17 of the Act, it is the duty of the Court to examine, whether there was any reason for modifying of the award or for setting aside the award notwithstanding that an affected party may have failed to file objection to the award on account of the expiry of the limitation period or the parties to the arbitration proceedings may be in collusion and because of that, they may not file any objection to a collusive award...."
13. In view of the above, I am of the opinion, to which Mr. Bilal A. Khawaja is also in agreement, that notwithstanding the fact, it has been held that the objections filed are beyond time and after refusing the .Application made under section 33 of the Act of 1940, I shall proceed to scrutinise the award. It may, however, be made clear, that this Court whilst scrutinising the award is not sitting as a Court of appeal and could not substitute its own finding on appreciation of evidence but, at the same time, it is the duty of the Court to see, in the absence of any objections, whether the award suffers from any legal defect or infirmity. Such has been held in the case of Messrs. Abdullah Traders v. Trading Corporation of Pakistan Ltd. And 2 others (1999 CLC 2047) in the following manner:-
11. It is settled law that a Court while examining the legality or otherwise of an Award as provided under sections 30 and 33 of the Arbitration, 1940 could not substitute its own finding on appreciation of evidence. It was .Held in the case of Messrs Joint Venture KG/RIST (supra) that an error or legal infirmity must appear on the face of award in order to warrant interference of the Court. In the instant case, there appears neither any illegality nor any infirmity on the face of record. The contention of. Mr, Muhammad Saleem Samo. A.A.-G. That no reason in detail was provided by the Arbitrator in support 11/ of his Award is devoid of any fact. All the relevant pieces of evidence and documents were thoroughly discussed in the reasonings by the learned Arbitrator and I see no reasons to interfere with the same."
14. For the purpose of looking into the fact and any infirmities that may be caused to be shown in the award only within the premise and parameters provided by section ,30 of the Act of 1940, one would naturally require assistance and could not shun therefore, a party whether directly or through his counsel to be represented in Court, notwithstanding the fact that the objections filed cannot be looked into. No doubt it could be argued that if such is allowed, it would defeat the provisions of section 33 of the Act of 1940 and Article 158 of the Act of 1908 and would in fact allow those objections which have not been allowed to be taken up in writing through the application made under section 33 of the. Act of 1940. I am afraid that this may be a possibility, but the difference would be, that the appreciation of the award shall be made by Court through assistance could or could not be sought from the respondents whose application/objections have not been accepted. This Court could have refused to accept objections to be argued in Court, but naturally an excessive burden would have then been cast on Court to determine the correct facts. I have, therefore, allowed Mr. Akhtar Ali Mehmood to argue the matter only to show any misconducted proceedings. This is only for the purposes of determination, whether the award could or could not be set aside and whether the proceedings or any part have been misconducted, and not within the scope of section 30 of the Act of 1940.
15: The facts of the case are, that the claimants are contractors in respect of various works required to be carried out for the respondents. Various projects that were required to be conducted or carried out are conducted 'and carried out on various contracts granted to them from time to time by the Pakistan Steel Mills. There are 8 contracts of a total value of Rs,442,848,983.23 which are as under:-- {{DATA MISS ARANGE}} Contract date Description of project Value of Contract
(a) 25.3-1977 Constraction of Fire Rs,7,23,91,104.00 Clay Shop and General Facilities at Refractories and Lime Products Complex,
(b) 29-6-1980 Construction of Motor Rs,76.25,478.00 Road No,1 and Roads in Refractories and Lime Products Complex,
(c) 26-12-1977 Construction of Rs,2,51,99,167.00 Intershop Cable Tunnel etc., along Motor Road No,1,
(d) 23-4-1978 Erection of Steel Rs,43,09,803.00 Structures at Refractories and Lime Products Complex,
(e) 13/30-7-1978 Underground Rs,5,37,49,316.00 Communication No,1, (0 5-7-1979 Underground Rs,2,89.66.146.110 Communication Noll.
(g)19-6-1979 Construction of Rs,84,81,428.23 Qutfall Drain RCC Crossing and Dual Carriage Way, (h)16-2-1981 Construction of Cold Rs,24,21,26,541.00 Rolling Mills (Phase-II and Part III)
' Admittedly, all the contractual obligations as regards the claimant in completing the work has concluded and the claimants have handed over the projects to the respondent on different dates.
16. In respect of these contracts various disputes seem to have arisen between the parties. In view of the said position, where there were disputes the claimants agreed to refer the matter to arbitration, whereby initially the Chairman of Pakistan Steel was appointed as the sole arbitrator to settle the disputes. Mr. H.N. Akhtar, the then Chairman was, therefore, by a written consent appointed as sole arbitrator. However, during the pendency of the arbitration Mr. H.N. Akhtar ceased to continue as arbitrator as, the said Mr. H.N. Akhtar refused to continue as such informing the claimants therefor. A fresh meeting was held whereby Major General Shujaat Ali Bokharee.
Chairman Pakistan Steel was jointly appointed as sole arbitrator. However, upon the departure of Major General Shujaat Bokharee, as Chairman Pakistan Steel, the arbitration proceedings after a single hearing came to an end.
17. The claimants thereafter upon demands made by the Pakistan Steel for payment of various sums of money proceeded to file a suit in this Court being Suit No,511 of 1987 whereafter the suit was disposed of on 13-12-1990 in the following terms:--
1. The parties have already agreed to the sole arbitration of their disputes by- Maj. Gen. Shujaat Ali Bokharee, the Chairman of Defendant Company and his successor in office.
2. The defendant shall not encash the Bank Guarantee No,RGL/83/033/ 40U for Rs .47,25 ,517 (Rupees Forty Seven Lacs twenty five thousand five hundered and seventeen only) issued for Cold Rolling Mills Project of the defendant pending above arbitration.
3 The plaintiff shall get the said Bank Guarantee renewed every three months till the arbitration of disputes is finalized and keep the guarantee void until the award of the Arbitrator is finalized under the law.
18. Major General Shujaat Ali Bokharee having been required to act as sole arbitrator and upon his departure, his successor not being interested to act as arbitrator, the present arbitrator Mr. Justice (Retired) Fakhruddin G. Ibrahim was appointed on 8-11-1991 to act as arbitrator. The appointment was by consent. The arbitration award having been filed in Court and objections not being considered for the present as foretasted in the absence of objections, this Court can proceed under section 17 of the Act of 1940 to examine the same. In view of this I proceed to examine the award.
19. Both the parties were duly-represented before the learned arbitrator and each contract was separately put up and argued before the arbitrator. The learned arbitrator has in award given details of each contract separately. The award is based on evidence being led and documents being produced. It is contained in the award that `none of the parties have denied any document produced by the other side, as such all the documents produced are admitted documents.
20. The contractual obligation including the Arbitration and jurisdiction would naturally run from each of the specific contracts entered into.
21. All the claims of the claimants namely M. Iftikhar and Company (MIC) have been stated in the award and dealt with by the learned Arbitrator.
22.The counter-claim had been made by the Pakistan Steel, the respondents have. Been stated and dealt with by the learned Arbitrator.
' The learned Arbitrator under the various contracts awarded that a sum of Rs,3,33,91,223 be paid by the respondents namely Pakistan Steel to the Claimants. The break-up of the said amount is as under:--
21. The learned arbitrator has dealt with Construction of Cold Rolling Mills Phase-II and III (CRM Contract) entered on 16-2-1981 where, the work started in March, 1981 to be completed within 30 months on 26-9-1983 but was extended up to 15-8-1985. Admittedly, the claimants have fully performed the contract within the extended period but the respondents according to the claimants had the completion survey which was given 26-5-1986 in which the date of completion was stated to be 24-12-1985. Various claims have been made by the claimants which are mentioned in the said award. Amongst the various {{TABLE}} S.No, Contract CRM Amount (Rs,)
1.43,41,577.00 claims, five claims are important which I would like to dilate upon. The claims are as follows:-- R&LP 49,54,090.00
(d) Amount payable on Rs,66,27,277.00 MOTOR ROAD 1 2,28,828.00 account of illegal/ un-reasonable CABLE TUNNEL 58,482.00 detention of ERECTION Nill equipment and machinery UGC-I 1,03,12,780.00 belonging to the Claimants UGC-II 21,81,826.00 Rs,13,254,554.67 CULVERTS TOTAL 13,13,640.00 3,33,91,223.00 10% p.a. For 5 years. , {{TABLE}} ' In addition to the above amount, the learned arbitrator also awarded a sum of Rs,17,362 per month to be paid to the claimants by the respondents from the date of award to the date of the original bank guarantee bearing No, RGL/83/033/40U dated 7-2-1983 for a sum of Rs,47,251,517.
Additionally, the claimants were allowed mark-up/profit/commission at 16% per annum from the date such amounts should have been paid in relation to several claims from the date of award until decree.
(e) Bank charges paid Rs,12,83,424.00 to the Bankers of the Claimants in respect of Bank Guarantee submitted in lieu of Retention Money.
(f) Depreciation on the unreasonably/ illegally detained equipment and machinery upto the date it is finally released by the respondents at the same rate of 10% p.a. On the written down value of Rs,1,32,54,554.67
(g) Bank charges in addition to the amount at (e) above be paid in respect of the bank Guarantee submitted in lieu of retention money will also be payable to the Claimants upto the date on which the said Bank Guaranteeis returned by the respondents to the Claimants.
(h) Mark-up/profit at 16% per annum on sums found to have been due and payable to the Claimants but unreasonably denied to the Claimants.
The respondents had objected as to the bar of limitation in respect of the CRM claim and stated that the claims in the proceedings under the CRM Contract arose on various dates during the execution of the contract on items in dispute which was lastly on 25-12-1986. This matter has been dealt with at some length by the learned arbitrator and has rejected the objections as to limitation.
Similarly, various other claims under the CRM Contract have also been discussed in detail and have been allowed in favour of the claimants. I would not wish to enter into the factual controversy as such was the domain of the learned arbitrator. However, to the only thing that could be looked into is whether the learned arbitrator exceeded his jurisdiction in deciding the matter which did not fall within the ambit of various claims. As regards item (d) above, it is a claim for amount payable on account of illegal/unreasonable detention by the respondents of the equipment and machinery belonging to the claimants. It is the claim that after the completion of work on 15-8-1985, the claimants started ,moving their material, plant, machinery and other equipment's from the premises of the respondent which was required under Article 12.8 of the agreement within reasonable time after completion of the project. It is the case of the claimant that the respondent vide letter dated 16-3-1980 stopped removal of machinery etc. Claiming that it is deemed to be the property of the respondents but without further referring to any Article of the contract and that the said machinery could not be removed, till settlement of the final bill. According to the arbitration award, the respondent relied on Article 12.2 of the contract which says that the machinery brought at the site would be deemed to be the property of the respondent. The respondents also relied on Article 17 of the agreement that they could forfeit the machinery if the claimants became insolvent for abundant work or failed to proceed with the work. According to the learned arbitrator, in fact the work had been successfully completed and Article 17 could not have been invoked. The question that arises is whether the learned arbitrator had the jurisdiction under the contract to award any damages for detention of the machinery. I have gone through the agreement but have been unable to find in the provisions, the consequence of refusal. It could be argued that the said machinery was brought for the purpose of execution of the contractual obligation and was being removed upon due completion. That may be so, but in my view the learned arbitrator has overstepped his. Authority. Mr. Akhtar Ali Mehmood had argued this position and very strongly that items at (d) to (k) do not fall within the scope of reference. Mr. Bilal has, not been able to show under what provision, the arbitrator had taken up this item. In fact the learned counsel for the claimant, MIC argued with vehemence .That this Court cannot sit in appeal on the award and that the award was not perverse and inconsistent with the record of the case. He stated that the learned arbirator's reasoning were not perverse and the findings are in accordance with the contractual obligations and the scope defined by the said contract. He has referred to the work perverse and explained the same. He has cited the cases of Qazi Ghulam Ahmad v. J.F., Elahi, Election Tribunal, Chakwal and others (PLD 1962 Lahore 786) and Parry's Employee's Union v. Parry & Co. Ltd. And others (AIR 1966 Calcutta 31). He has also relied upon Aiyer's Judicial Dictionary, 11th Edition, page 867. Aiyer's Law Lexicon, 1997 Edition, page 1457, Law Terms and Pharases by Mokal, page 686 and Words Phrases by Kakahel, page 3918. According to him all what has been cited and relied upon above, clearly shows that the word 'perverse' means, that which is against the weight of the evidence and further that the words 'perverse' and wrong' are not distinguishable. He states that a view would not be perverse merely because another view was possible. He argues that a wrong conclusion or adopting a wrong view of the matter does not amount to misconduct nor is the same an error apparent on the face of award so as to make it invalid.
' He contends that the issue of perversity of any finding would not fall within the scope of section 30 proceedings under the Act of 1940 which must be confined to the three precise and specific grounds mentioned therein as they have a limited scope and may not be treated as appellate proceedings against the award. In support of this proposition, Mr. Bilal A. Khawaja has relied upon the following cases:-- ' M/s. Joint Venture KG/Rist v. Federation of Pakistan and 2 others (PLD 1996 SC 108); ' Province of Punjab etc. v. M/s. Mian Muhammad Saleem & Co. (1985 SCMR 1215); ' Ghulam Abbas v. Trustees of the Port of Karachi (PLD 1987 SC 393); ' Messrs. Badruddin H. Mavani v. Government of Pakistan Ministry of Food and another (1981 CLC 339); ' Messrs. National Construction Co. v. The West Pakistan Water and Power Development Authority (PLD 1987 SC 461); ' Abdur Rahman Munshi and 7 others v. Dr. Abdul Malek and 11 others (1968 SCMR 275); ' Gulzar Hussain Awan v. Akbar (1984 CLC 3164); ' Moinuddin Siddique v. Saleem (1984 CLC 2568); ' Messrs. Alpha Insurance Co. Limited v. Messrs. Ch. Nizam Din & Sons and another (2001 CLC 289);
(x) Messrs Ghee Corporation of Pakistan Ltd.. v. Messrs. Kouk Oils and Grains (Pvt.) Ltd. (1999 MLD 2617);
(xi) Turner Morrison Garahams Group of Companies, London v. Rice Export Corporation, Pakistan Ltd. (PLD 1998 Karachi 79) and
(xii) Zakaullah Khan v. Government of Pakistan (PLD 1998 Lahore 132);
24. Replying the objections of Mr. Akhtar Ali Mehmood Mr. Bilal A. Khawaja also contended that insufficiency of evidence or non-consideration of the entire evidence is no ground of interference with an award under section 30 'on the Arbitration Act. He further argued that it is no ground for interference that on the material before the arbitration tribunal, the Court could have taken a different view of the matter. Mr. Bilal A. Khawaja argued, that the arbitrator is not obliged to give a finding on each and every issue comprising the reference. He states that in the same manner, arbitrator's failure to consider a particular piece of evidence or the possibility of a different and more plausible view of the matter in dispute cannot be a ground for interference with the award under section 30. In this respect he has relied upon the following reported cases:-- ' Messrs. Ibad & Co. v. Province of Sindh and 2 others (PLD 1980 Karachi 207); ' The Premier Insurance Co. (Pakistan) Ltd., Karachi v. Ejaz Ahmed Khawaja and 3 others (1981 CLC 311); ' AJ&K Government v. Ghulam Rasul Lone 1983 CLC 926); ' Associated Constructors Ltd. v. Karachi Municipal Corporation (1982 CLC 1984); ' Messrs Qamar Din Ahmad & Co. v. Pakistan and another (PLD 1971 Lahore 380); ' Baluchistan Province and another v. Malik Haji Gul Hassan (PLD 1982 Quetta 52); ' Faizanul Haq v. Irfanul Hag, etc. (1986 MLD 2750); ' Province of Baluchistan v. Messrs Tribal Friends Company, Loralai (PLD 1986 Quetta 321) and ' Messrs Hussain Textile Mills Limited, Karachi v. Messrs Dada Sons Limited, Karachi (PLD 1973 Karachi 413)
25. I absolutely agree with the proposition and the arguments of Mr. Bilal A. Khawaja, which no doubt is the correct law on the subject; but, the one fact that Mr. Bilal has not looked into nor has argued, is that where an arbitrator .Exceeds his authority provided for in the arbitration agreement, could, that portion of award be termed as misconducted proceedings. I am clear, that the arbitrator has to act, within the jurisdiction, the scope of reference and within 0 the arbitration agreement. In this case, however, under the CRM Contract, the amount for detention of equipment and machinery did not fall within the scope and purview of the arbitrator's jurisdiction, scope and the arbitration agreement. In having allowed the same, the learned arbitrator has misconducted the proceedings to that extent. I also agree with Mr. Akhtar Ali Mahmood when he has argued that items (e), (f), (g), (h) and (i) are also beyond the scope of the learned arbitrators. Thus, the award to that extent cannot be allowed and is set aside whereby the award shall be modified to that extent.
26. As regards the next contract, which is the contract for Construction of Fireclay Shop and General Facilities of Refractories and Lime Production Complex (R&LP Contract), the same was awarded by the respondent on 25-3-1997 and the agreement was signed on 18-7-1997. The completion date was 24-7-1978 and was extended by mutual agreement to 30-4-1979 and the work was admittedly completed within the period. I have seen the award. The said claim is dealt with in detail, and there is no cause for interference. The claim is thus allowed in its entirety.
27. The next contract relates to the Erection of Steel Structures at Refractories and Lime Production Complex (Erection). The learned arbitrator has not made any award in relation to this contract. The next relates to the Construction of Underground Communication Works in area of Refractories and Lime Production Complex Motor Road No,1 and V and Marshalling Yard (UGC-1) Contract). I do not see any ground to modify the same for the reasons as stated above. The award by the arbitrator, therefore, stands approved.
28. The next contract is regarding the Construction of Underground Communication Works for Rolling Mills and Facilities No,II (UGC-II), Whilst not interfering with the award given by the learned arbitrator, the mark-up granted by him is not allowed as, the same is in excess of his jurisdiction, power and scope.
29. The next contract relates to the Construction of Drains, RCC Crossing and RCC Pipe Culverts (Culverts Off Site Facilities). I do not see anything to interfere with the . Award in respect of this contract also. However, the interest/mark-up profit granted is not allowed for the aforesaid reasons.
30. In view of the above amount awarded in respect of the C.R.M. Contract is to be reduced by the amounts allowed by the learned Arbitrator in items (e), (f), (g), (h), (i) and (j). The interest awarded on the various contracts are also to be, deleted.
31. As regards the claim of Rs,17,362 per months totalling to Rs,47,25,517 in respect of the Bank Guarantee, the same is also not allowed as in excess of the jurisdiction and beyond the scope of arbitration. The general mark-up and profit allowed by the arbitrator @ 16% per annum from the date of award until decree is also disallowed as, in excess of jurisdiction, scope and authority.
32. As regards the claim of the learned arbitrator as cost and fee to be shared equally, the same is allowed whereby, the Pakistan Steel shall pay to the learned arbitrator their share of costs stated in the said award. In view of the above, the award by the learned arbitrator is made rule of the Court with the above modifications. The suit stands disposed of. Decree to follow.