' Pursuant to the arbitration proceedings arising out of Suit No,733 of 1991 an award was filed in this Court.
2. No objections to the award were filed on behalf of the plaintiffs, while the objections filed by the defendants were not entertained, as those were filed beyond the prescribed time and the application moved by the defendants for extension of time was dismissed.
3. However, since the award was found to be suffering from defects apparent on the face of it, on account of patent anomalies, it was remitted to the learned sole Arbitrator for re-consideration of Issue No,11 in Suit No,1420 of 2001. The learned sole Arbitrator was accordingly required to re-submit the decision with definite findings within the period of six months after providing full opportunity of hearing to the parties concerned.
4. Learned sole Arbitrator has re-submitted the decision. This time the objections to the award have been filed by the plaintiffs.
5. Arguments have been heard.
6. It was contended on behalf of plaintiff that the learned sole Arbitrator committed misconduct by not taking into consideration the evidence adduced by the plaintiffs which was available on the record. It was argued that an additional document titled "Composite Schedule of Rates-2000" published by High Way Authorities was totally ignored.
' It was next argued that learned sole Arbitrator awarded 1% of the total value of contract instead of 5% value of contract and thus, violated the principle laid down by Honourable Supreme Court in the case of Karachi Transport Corporation v. Karachi Tameerat Limited reported in PLD 1992 SC 479.
' It was next argued that in the previous decision learned sole Arbitrator awarded a sum of Rs,10,000,000 (Rupees ten million) under the head of plant idle costs but now it was refused, while giving decision on the remitted award despite availability of sufficient evidence. Learned counsel attempted to point out certain documents to show that those documents were kept out of consideration, by learned sole Arbitrator, which necessitated setting aside the award and/or remitting the same.
' In support of the contention raised hereinabove learned counsel for the plaintiff placed reliance on the cases reported in 1990 M LD 301, AIR 1963 Cal. 163 and PLD 1966 Kar.
513.
7. On the other hand, the award was supported by the defendants. It was contended on their behalf that the objections raised by the plaintiffs were devoid of merit. It was argued that there was no evidence for grant of compensation in respect of plant idle cost. It was further contended that the decision was supported by sufficient reasons and that the Court has to lean towards upholding the award, rather than vitiating the same.
' Certain cases were cited in support of submissions put forward on behalf of defendants.
8. I have anxiously considered the arguments advanced, besides seeking guidance from the case- law cited by the parties and have examined the decision on the remitted award.
9. At the outset it must be re-emphasized that initially when award was filed in the Court, no objections were raised on behalf of plaintiffs. The objections which were filed on behalf of defendants were not taken into consideration for the reason that those were barred by time.
However, in view of patent illegality apparent on the face of it, the award was found to be bound satisfaction, thus, the same had to be remitted to the learned sole Arbitrator.
10. So far as the legal position is concerned, it is well-settled proposition that while hearing the objections to the award, the Court has not to act as Court of appeal. Further that the Court should be slow in proceeding to scrutinize the award in order only to discover an error for the purpose of setting it aside. Indeed, it was the duty of the Court to give every reasonable intendment in favour of award and lean towards upholding, rather than vitiating the same. The rule is based on the logic that the Arbitrator is chosen by the parties themselves therefore, prima facie the award be treated final, except that the same may be modified or corrected when it falls within the scope of section 15 of the Act, and it can be set aside if it is covered by the provisions of section 30 of the Act. If a reference is needed, the case of Messrs Waheed Brothers (Pak.) Ltd. Lahore v. Messrs Izhar (Pvt.)
Ltd., Lahore 2002 SCM R 366 can conveniently be referred. Except for the conditions laid down in the above provisions, the Court shall proceed to pronounce the judgment according to the award.
11. While scrutinizing the award it was observed that the claim of the contractor with regard to plant idle cost was based on no evidence as no witness of the contractor has explained before the Arbitrator as to how and on what basis the said amount was calculated as observed in para.62 of the original award. So far as the production of printed book entitled "Composite Schedule of Rates January, 2000" was concerned, it was rightly observed by leaned sole Arbitrator that those schedules prepared in the year 2002 could not be made applicable in the present case as the case in hand will not be governed by documents which was to take effect and operate prospectively.
Since the observation made by this Court affirming the findings of sole Arbitrator with regard to lack of evidence while remitting the award on the subject of plaint idle costs were not challenged by the plaintiffs, those have attained finality and were not open to challenge at this stage. Thus, the award to that extent is unexceptionable.
12. So far as the grant of compensation on account of delay is concerned, it may be observed that as detailed in para.60 of the original award, while applying the rule of thumb, learned sole Arbitrator has determined a period of "15 months as the period of delay as the basis of calculation for overheads and superintendence costs" holding that it {{URDU TEXT}} ill be in consonance with justice and equity".
' In his decision on the remitted award, learned sole Arbitrator has affirmed the said period, and has awarded I 'X of the total value of the contract as compensation to the plaintiff. In my view the quantum of compensation, in the given circumstances was correspondingly inadequate. It will not be difficult to comprehend that the plaintiffs would have to retain the staff, maintain the establishment thus, have to incur overhead expenses. Besides they also got themselves engaged in the work. In such situation, the loss suffered by them was inevitable. I am, therefore, of the considered view that the compensation so awarded to the plaintiffs was unjustly insufficient. It needed to be enhanced, to make up the losses.
13. The guiding principle governing the award of compensation on account of delay in completion of project if it is caused by employer and the contractor has to incur more expenses which caused to loss to him has been laid down in the case of Karachi Transport Corporation v. Karachi Tameerat Limited reported in PLD 1992 SC 479. In the said case Honourable Supreme Court awarded the compensation at the rate of 5% to the contractor for the period of delay caused by employer which was 23 months.
14. While following the guidelines provided by the apex Court the claim of 1% as awarded by learned sole Arbitrator need to be enhanced. It is accordingly enhanced to 3% of the total value of the contract for the period of delay caused by employer which is in the present case is 15 months.
' With the above modification the award is made the rule of Court.
Award made rule of the Court.