1. The Judgment of the court was delivered by Khalid, J. - These four appeals are filed by the Fertilizers and Chemicals Travancore Ltd., Udyogamandal, against a common judgment passed by the Principal Sub Judge, Parur, in O.P. Nos. 36 and 37/79 and 3 and 4/80. The 1st respondent in all the appeals is the contractor and the 2nd respondent, the arbitrator, who is a retired District and Sessions Judge. As per an agreement dated 6th September, 1973 between the appellant company and the 1st respondent, the 1st respondent undertook to carry out certain works at the Ambalamedu and Wellington Island premises of the appellant company. According to the appellant company the 1st respondent rescinded the contract unlawfully and without just cause as per letter dated 9th September, 1974 and called upon the appellants to measure the works done till then, and made certain claims on them. The appellant company denied their liability to pay any amount and informed the 1st respondent that the uncompleted and abandoned contract works would be got done at the risk and cost of the 1st respondent. In fact the uncompleted work was entrusted to some other contractors. The appellants made claims on the 1st respondent for the loss incurred by this entrustment. Both these disputes were referred separately for arbitration to the 2nd respondent. The 2nd respondent made awards rejecting the claim of the appellants and granting the claims of the 1st respondent. O.P. Nos. 36 and 37 of 1979 were filed by the 1st respondent under S.14 and 17 of the Arbitration Act to file the award in court and to pronounce judgment according to the awards made by the 2nd respondent and O.P. Nos. 3 and 4 of 1980 were filed by the appellants under S.30 and 33 of the Act to set aside the awards. O.P. Nos. 36 and 37 were allowed and the other Original Petitions were dismissed. M. F. A. No. 116 of 1981 is directed against the order in O. P. No. 4/80, M.F.A. 117/81 against the order in O.P. No. 37/79, M.F.A. No. 118/81 against the order in O.P. No. 3/80 and M.F.A. 128/81 against the order in O.P. No. 36/79.

2. The estimated value of the original work was Rs. 2,21,94,318.44. The parties agreed subsequently for an additional work of Rs. 23,00,000. As per the contract the work was to be completed within 15 months beginning from 15th September, 1973, and ending on 15th December, 1974. The 1st respondent contractor stopped the work on 9th September, 1974 and informed the appellants about this alleging that the appellants had committed breach of the the contract. The appellants in turn charged the 1st respondent of breach of contract and informed them that any loss incurred on account of entrustment of the work to other contractors would be realised from the 1st respondent. The 1st respondent complained that the appellants caused delay in handing over site and contravened the stipulation regarding the stage wise programme evidenced by Ext. A-40. On account of these laches on the part of the appellants, the 1st respondent suffered loss which they estimated at Rs. 45,52,030.53 excluding interest. It was this amount that was the subject matter of the claim by the 1st respondent in the arbitration proceedings. The appellant in turn had to make arrangements to get the work under the contract complete, which they did at extra cost by entrusting to others. The loss incurred by the appellants on account of the breach of contract committed by the 1st respondent was estimated at Rs. 1,81,24,883.32 excluding the cost of materials not accounted for. The claim for this amount was the subject matter of the other arbitration proceedings. Under the agreement, the appellants had to name the arbitrator and it was the appellant who chose the 2nd respondent as the arbitrator when the dispute arose. Two separate awards were made by the arbitrator on 29th September, 1979, rejecting the claim of the appellants and upholding the claim of the 1st respondent. The awards were challenged on the ground that the arbitrator had committed an error apparent on the face of the award by incorporating in the awards various clauses of the agreement and arriving at incorrect conclusions based on an erroneous interpretation of the said clauses. The court below upheld the awards stating that reference to any document or clauses in the award would not amount to their incorporation in the award and that the court had no jurisdiction to interfere with the award since the court was not sitting in appeal over the award. Relying upon (1) Allen Berry and Co. v. Union of India (AIR 1971 SC 696 [LQ/SC/1971/6] ) and M. Chellappan v. K. S. E. Board (AIR 1975 SC 230 [LQ/SC/1974/381] ), the court below held that the arbitrator was not bound to give a reasoned award and if in passing the award he made a mistake of law or of fact that was no ground for challenging the validity of the award.

3. Before considering the questions of law argued at length before us, we would outline in brief what really took place before the dispute arose. When tenders were called for, the appellants had made known to the contractors in a printed form the terms under which the work would be entrusted. The said printed form notified to the tenderers that they would be deemed to have understood its terms while submitting quotations. They were also notified that the work should be completed in all respects not later than 15 months reckoned from the date mentioned in the work order given to the tenderer and that time shall be of the essence of the contract. They were also told that the successful tenderer would have no claim against the employer if the work or any part thereof covered by the tender document was postponed to any later date or abandoned in the interest of the employer or for any other reason and that such decision of the employer would be final and binding on the contractor. The employer reserved the liberty to revise the contract rates and to extend the time for delivery in the event of alteration of specifications, pattern and drawings and this liberty was to be final and conclusive. Provisions were made for the extension of time for completion of the work, if in the opinion of the employer changes had been ordered which materially increased the magnitude of the work. The employer could grant extension of time which appeared reasonable to it in the circumstances and the contractor could request for such extension. The employer had the liberty to require the contractor to perform extra items or quantities of work and make changes within the general scope of the work and the contractor was bound to perform such extra items in the manner and to the extent specified in the written change order approved by the employer. The contractor cannot suspend the work on any contingency without the prior knowledge and approval of the employer and if he proposed to suspend the work he should report to the Engineer and obtain his prior orders furnishing to him the reason necessitating such suspension. The printed form stipulated extension of time when it became necessary. But such extension was within the discretion of the employer and the contractor had no voice in it. The 1st respondent by letter dated 19th April, 1973 placed certain counter offers before the appellants. There was some discussion between the appellants representatives and that of the 1st respondent. Changes in the rates were made in the revised quotation. There were negotiations subsequently and as per the minutes of the negotiations dated 29th June, 1973 it was agreed that a time schedule would be drawn up which would form part of the contract, that days lost due to labour strike and unprecedented weather conditions would be considered on merits for granting extension of time and the rates would be kept valid for a further period of nine months beyond the stipulated period of completion. There was further discussion on 2nd July, 1973. This was followed by a letter dated 23rd August, 1973, by which the 1st respondent was informed by the appellants that the works would be awarded to them at their later revised quoted rates subject to the condition that they agreed to a stage wise programme of construction for executing the work. As per a letter, dated 8th August, 1973, the 1st respondent withdrew all the conditions put forward along with the tender if the revised offer was accepted. Thereafter the works contract was given to the 1st respondent as per letter, dated August, 28, 1973, which reads as:

"Referring to your tender for the above work and your final revised offer as per letter No. FACT-82/740/73, dated 12th July, 1973 and letter No. FACT-82/792/73 dated 8th August, 1973 this is to confirm that your final revised offer for the work as per the conditions and schedule attached hereto is accepted.

* * * *

"The work should be completed in all respects within 15 months from the date of starting the work. The work shall be started at site within fifteen days from the date of receipt of this work order. The Contractor shall programme his work in such a way as to adhere strictly to the stage wise programme for construction which he has accepted. In case the contractor fails to achieve any of the milestones in this stage wise programme, it will mean that he is unable to complete the work within the stipulated time. This stage wise programme will form part of this contract."

* * * *

This work will be subject to our general and special conditions of contract copies of which are enclosed."

* * * * "

4. After the acceptance of the work, differences surfaced between the appellants and the 1st respondent resulting in a series of letters. We will in brief refer to some of them culminating in the cessation of the work. On 30th October, 1973 (Ext. A-8) the 1st respondent informed the Chief Engineer of the appellants to supply all required materials immediately so that the progress of the work was not hindered. They were also told that the structural drawings of bagged storage and also the balance drawings of bulk storage had not been received and requested the appellants to arrange for the same. On 7th November, 1973 (Ext. A-9) the Chief Engineer of FACT Phase II, Ambalamedu, was told that the 1st respondent would be forced to discontinue the work for bulk storage and water treatment plant if detailed drawings were not made available immediately. On 13th November, 1973 (Ext. A-10), the Chief Engineer was told that unless the "materials were completely removed from the site", which was not done in spite of repeated requests, it would hinder the construction of the bagged product storage which was well ahead of the schedule. On 17th December, 1973 (Ext. A-11), the Chief Engineer was told that the work of steel fabrication was progressing very well and the non-supply of materials would shatter the programme of the work. His immediate and earnest action in procuring the materials as well as drawings at the earliest opportunity was solicited. There have been periodical reviews of the work. On 2nd January, 1974 (Ext. A-13), the Chief Engineer was told that the 1st respondent was forced to delay the work of the empty bagged storage since the site was not cleared of the steel materials stored there and despite this delay they would try to complete the building as per the programme. Regarding the bulk storage, the Appellants Engineer was told that the detailed drawings had not been received till then, that the work of the foundations and columns were in progress, that if the detailed drawings of the tunnel could be furnished, the necessary work could be started without delay. The appellants Engineer was also told that the work of the tunnel was not visualised in the stage wise programme for which suitable extension of time had to be granted. Regarding the main sub-station work, the Engineer was told that the progress of the work was in accordance with programme and that the 1st respondent hoped to complete the work of the sub-station ahead of schedule. On 10th January, 1974 (Ext. A-14), the Chief Engineer was told referring to the construction of the balance work of Phase II that the said work was completely paralysed due to non-availability of materials and lack of proper power connection. The immediate and urgent attention of the Chief Engineer was invited to this. On 8th February, 1974 (Ext. A-15), referring to the same work, the Chief Engineer was told that the 1st respondent was still awaiting the clearance to commence the work of the bagging plant. Ext. A-15 is a review of the progress of the work upto 8th February 1974, in which the 1st respondent again brought to the notice of the appellant the difficulties experienced by them due to the non-cooperation of the appellant in not making available the necessary materials. Ext. A-16, dated 10th March, 1974 is a review of the programme of the work since 8th February, 1974. The Chief Engineer was again told by this letter that the 1st respondent had not yet received the notice to start the work of the bagging plant. Still, the appellants were told that "we are putting in all efforts to complete this work at the very earliest as desired by you." Ext. A-18, dated 29th April 1974, is the fourth review of the progress of the work. The appellant were told that if the 1st respondent had been allowed to stick to the stage wise programme much of the difficulties and problems which they are facing could have been avoided. In this review they reiterated the difficulties experienced by them and the high cost they would incur because of the increase in prices, cost of labour and transport. Things went on like this unsatisfactorily between the parties. It is seen from the materials available that the work under the contract had to be suspended with effect from 18th May 1974, on account of the violence by the striking labour of the Cochin Division Phase II. The 1st respondent complained of the steep increase in prices, their financial difficulties and their inability to proceed with the work unless they were relieved of the precariously critical financial situation. Ext. A-31, dated 7th August, 1974 was sent by registered post by the 1st respondent to the Appellant. In that letter the appellants were told that the 1st respondent was able to execute the work worth only about Rs. 80,00,000.00 under the contract. The stage wise programme could not be adhered to on account of various defaults detailed in the letter on the part of the company. The 1st respondent complained that out of the 14 months specified for the completion of the work about 10 months had already been wasted because of lack of diligence on the part of the appellant. The 1st respondent put forward several terms and conditions in this and informed the appellants that if the terms and conditions so put forward were not favourably considered and settled the 1st respondent could be constrained to stop the work. Subsequent to this on 18th August 1974, the officers of the appellant and the 1st respondent met and a revised state wise programme appears to have been drawn up by the Chief Engineer (Civil) and a copy handed over to the 1st respondent. The appellants then wrote Ext. A-32, dated 22nd August, 1974 in which they called upon the company to assist them by making advance payment of Rs. 8,00,000 immediately and to settle the claims made by them. They were also told that it would be necessary for the strict adherence of the revised stage wise programme to give them fortnightly 70 per cent of the value of the work done and to arrange payment of part bills every 30 days. Further discussions between the appellant and the 1st respondent appear to have taken place on 25th August, 1974 and 6th September, 1974 without making any headway. The appellant sent a letter to the 1st respondent, dated 29th/31st August, 1974 in which the appellant complained that the 1st respondent had not been cooperative in speeding up the work and that there had been slackening in the work both at Ambalamedu and at Wellington Island. The Appellants made it clear to the 1st respondent that the relevant factors could be considered at the appropriate time in regard to the extension of time. To this letter, the 1st respondent sent Ext. A-33 reply, dated 2nd September, 1974 in which they denied the allegations made against them. The appellant informed the 1st respondent that extension of time could be granted for completing the contract. The appellants were told that the 1st respondent was willing to take necessary action according to the terms of the agreement provided the appellants settled the various claims before 7th September, 1974 as promised by the General Manager. Subsequent to this, there was suspension of construction activities by the 1st respondent which resulted in an express telegram being sent by the appellant to the 1st respondent followed by Ext. A-34 letter, dated 9th September, 1974. In this letter, the appellant charged the 1st respondent about the drastic action taken in stopping the work all on a sudden without the prior knowledge and approval of the appellant. The 1st respondent was told that their unilateral action of the suspension of the work would be considered as non-compliance with the provisions of the contract. They were told that if the work was not immediately resumed with additional men and equipments to make up the loss of time, the appellants would be compelled to terminate the contract and arrange independent agency at their risk and cost. On 9th September, 1974 itself, Ext. A-35 reply was sent by the 1st respondent repeating the charge of breach of contract on the part of the Company, that they could not be expected to wait indefinitely for decisions even on elementary matters. The appellants were told as follows:

"11. In the circumstances we take it that your Company is not interested in completing the work even as per the revised construction schedule which tantamounts to unlawful repudiation of the contract on your part and accordingly we hereby treat the contract as rescinded with immediate effect, which please take notice of."

The appellants were told to cause the final measurement of the work done till then and to pay the final bill based on such measurements. On 9th October, 1974 Ext. A-37 was sent by the appellant stating that they were not blameworthy and had diligently and properly done whatever could be done, that during the discussions they had indicated their willingness to render financial assistance, that despite their best efforts to see that the 1st respondent withdrew the termination of the contract, the demands by the 1st respondent were unreasonably and unconscionably high, that the unilateral repudiation of the contract launched the Company in a very difficult situation and that the 1st respondent had committed breach of contract. The 1st respondent was informed that action would be taken to recover the loss caused because of the breach, that the security deposit would be forfeited, that they would entrust the remaining work to others, and that they would take possession of the works with a view to completing them.

They wanted the contractors cooperation in the matter of taking measurements. On 15th October 1974, as per Ext. A-38, the 1st respondent sent a letter informing their readiness to cooperate for taking final measurements. This is how the contract fell through.

5. Claims were made by the appellants and the 1st respondent separately. The 2nd respondent was ultimately appointed Arbitrator by the appellant to decide the dispute that had arisen between them. Two separate awards were made by the 2nd respondent. In the claim made by the 1st respondent, nearly twenty lakhs were grouped under various claims, interest on the amount as per head No. 20 at 9 per cent for the period from 5th January, 1975 till date of decree and on the amounts as per other heads from the date of the award till date of decree and costs of Rs. 35,000. The claim made by the appellant was rejected. The 1st respondent filed O.P. Nos. 36 and 37 of 1979 under S.14 and 17 of the Act to pass judgment according to the award. The appellant filed O.P. Nos. 3 and 4 of 1980 under S.30 and 33 of the Act to set aside the awards. The 2nd respondent produced in court all the papers available with him in connection with the arbitration proceedings in the steel trunks locked and sealed by him. When these appeals came before another Division Bench it was noticed that neither the court seal nor the initials of the Sheristadar were put on the records produced by the Arbitrator. Explanation was therefore sought from the Sheristadar, Sub Court, Parur why the court seal and initials of the Sheristadar were not put on the records produced by the arbitrator. Two statements are seen submitted; one by the Sheristadar at the time papers were filed and the other by the one who succeeded him. In the statements it is stated that the papers were submitted by the arbitrator in steel trunks locked and sealed and that the key of the boxes were under the custody of the Presiding Officer. The two sealed boxes and the sealed covers in the boxes were opened under the direction of the Presiding Officer in open court at the time of the hearing of the Original Petition and that it was the usual practice in Sub Courts to open sealed covers or sealed boxes only by the Presiding Officers and not by the Head ministerial Officer. It was also stated that there was no occasion for the staff to see whether the memorandum in the two arbitration cases which is item No. 63 in the list submitted by the arbitrator was signed or not.

6. The occasion for calling for a report from the Sheristadar arose under the following circumstances. Among the papers submitted by the arbitrator, there were two memorandums shown as item No. 63 in the list with three copies. One was a bound volume running in more than 300 pages. The other was also in book form with 33 pages. They are not seen signed by any one. It was perhaps to verify about this fact, that explanation was sought from the Sheristadar. The importance of the memorandum arose at the appellate stage. The bigger memorandum is a compendious volume containing a very detailed discussion of the case both on facts and on questions of law. The appellants in their attempt to get the awards set aside rested their case largely on this memorandum, because according to them the conclusions arrived at by the arbitrator in the memorandum were grossly erroneous and were based on erroneous statement of law. The 1st respondent took the stand that the two memorandums did not form part of the award and that they should not be looked into for the purpose of these appeals. The sealed cover containing the award was opened by the Division Bench before whom the case was originally listed. Subsequently, the appeals came before us. A second sealed cover item No. 66 in the list was opened before us, on 15th February, 1982. This contained the notice under S.14 of the Act, and other relevant papers. Since the memorandum did not contain any signature we had to make sure that it was prepared by the arbitrator himself. While the counsel for the appellants said that it was one prepared by the arbitrator himself, the counsel for the 1st respondent did not commit himself either way. Therefore, we summoned the arbitrator by our order dated 1st March, 1982 and directed him to appear before us on 8th March, 1982 at 10.30 a.m. He appeared on the said date, was sworn and deposed as follows:

Table:#1

With this evidence it is beyond doubt that the typed memorandums were prepared by the arbitrator though they do not contain his signature.

7. That takes us to the question whether this typed memorandum could be looked into to ascertain whether the award is bad for an error apparent on the face of a document appended to it. In other words, whether the errors, if any, committed by the arbitrator in formulating questions of law and coming to his conclusions as reflected in the memorandum could be made the foundation to set aside the awards. Before doing so, it will have to be decided whether this memorandum forms part of the award. The 1st respondents counsel took us through various authorities to contend that it did not form part of the award, and therefore it was not permissible for the court to look into it. The appellants counsel rest contented with the submission that the memorandum could only be a part of the award though it did not accompany the award in the strict physical sense, for no other purpose could be served by it, except to understand the basis on which the award was passed. The arbitrator having given his detailed reasoning in this memorandum, he should be deemed to have intended it to form part of the award.

8. Now we will consider the authorities cited before us to decide this aspect of the case. The first case brought to our notice is the oft-quoted decision reported in Champacy Co. v. Jivraj Balloo Co. (AIR 1923 PC 66). At page 68, the following passage alone is relevant for our purpose: (in all the passages extracted below emphasis is ours).

"The only exception to that rule are cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, I think firmly established viz., where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. ......"

At page 69, occurs the following oft-quoted passage:

"An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance, a notice appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous .............."

In M/s Alopi Shaiad v. Union of India (AIR 1960 SC 588 [LQ/SC/1960/13] ) it is stated in Para.16 as follows:

"16. The extent of the jurisdiction of the court to set aside an award on the ground of an error in making the award is well defined. The award of an arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it, as for instance, a note appended by the arbitrator, stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. ........."

In Giacamo coats Fu Andrea v. British Italian Trading Co. Ltd. (1962 (2) All ER 53) at page 59 the above passages are noticed with approval. In Kanpur Nagar Maha v. Narain Das Haribanah (1969 (2) SCC 620 [LQ/SC/1969/289] ) at page 622 the following passage is relevant:

"8. This Court in the case of Dr. S. Dutt v. University of Delhi said in our view all that is necessary for an award to disclose an error on the face of it is that it must contain, either in itself or in same manner intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous."

In Allen Berry and Co. v. Union of India (AIR 1971 SC 696 [LQ/SC/1971/6] ) the following passage is relevant:

"6. The principle is that the Court while examining an award, will look at documents accompanying and forming part of the award.

In Iftikhar Ahmed v. Syed Meharban Ali (AIR 1974 SC 794 [LQ/SC/1974/35] ) at 752, the following passage is relevant:

"In the award, the arbitrator has stated that the judgment of the High Court in the second appeal would not operate as res judicata as regards the title to the properties but was only a piece of evidence".

In N. Chellappan v. K. S. E. Board (AIR 1975 SC 230 [LQ/SC/1974/381] ) in Para.13 it is stated as follows: -

"An error of law on the face of the award means that you can find in the award or a document actually incorporated thereto, or for instance, a note appended by the arbitrator........." (page 235).

In Halsburys law of England Fourth Edition Vol. II, at Para.623 page 334 it is stated:

"In order to be a ground for setting aside the award, an error in law on the face of the award must be such that there can be found in the award, or in a document actually incorporated with it, some legal proposition which is the basis of the award and which is erroneous."

Strong reliance was placed by the respondents counsel on the above passage to contend that the memorandum in this case did not either form part of the award nor was it appended to it nor did it accompany it nor was it incorporated in it. In reinforcement of this submission he took us through the meanings of the words "accompanying" "appended" etc., in various dictionaries. We refrain from extracting the dictionary meanings here for the reason that it would be an unnecessary exercise. Passages in judgments of superior courts cannot be subjected to interpretational scrutiny in the manner passages and words in statute are subjected. Even in statutes, dictionary meanings may not always be a safe or acceptable guide, much less so while considering passages in judgments. Instead of trying to understand the meanings of the expressions used by superior courts in passages occurring in their judgments, with the help of dictionaries the proper thing to do is to try to understand what was really meant by the courts in those passages. Considering the passages quoted above what comes out is this: Courts can look into the papers filed with the award to test its validity. The one important limitation imposed is that such paper or papers should accompany the award, should form part of it, should have been actually incorporated in it and the arbitrator should have intended such paper or document to form part of the award. In other words, such a paper should form an integral part of the award.

9. The arbitrator has deposed that he sent the signed copies of the award to the parties and that he did not send copies of this memorandum along with it. He also deposed that he sent the award to the court in sealed cover. It is therefore clear that this memorandum did not accompany the award in the physical sense. It was not appended to the award even in the legal sense because it can be safely assumed that the arbitrator never intended this memorandum to form part of the award.

10. Counsel for the 1st respondent supported his submission that the memorandum did not form an integral part of the award stating that the evidence of the arbitrator conclusively proved it. He further stated that once the arbitrator made the award and complied with the provisions contained in S.14(1) of the Act he become functus officio and all that he did subsequently was only acts administrative in nature and not any work connected with the arbitration. Under S.14(1), the arbitrator, after making the award, has to sign it and give notice in writing to the parties of the making and signing the award. In this case the arbitrator did this on 29th September, 1979. While complying with S.14(1) in this case, the arbitrator, sent copies of the award also to the parties. The award was sent to court in a sealed cover separately. The memorandum was included among the papers sent to court under S.14(2). This was an administrative act done by him. One document alone, from the list of documents sent, cannot be picked out to contend that it formed part of the award. According to him, S.13(d) confers on the arbitrator, after he signs the award, only the power to correct any clerical mistake or error arising from any accidental slip or omission. In this case the arbitrator did not at any time suggest that he had either appended anything to the award or that there was something else which formed part of the award. It is on the date of the publication of the award that he should have caused other document or paper to be appended to the award or to accompany the award. The existence of this memorandum was not known to either party till the appellate stage. The pleadings before the court below and the grounds of appeal before this court proceeded on the validity of the award, copy of which was sent to the parties, and it was only when the existence of the memorandum was discovered before this court that the new case was attempted to be built upon this memorandum. On these materials he contended that the memorandum would not in law form part of the award.

11. The learned counsel for the appellants met these submission with the plea that it was not necessary for the arbitrator under S.14(1) of the Act to send copies of the award along with the notice making the award. The only purpose of including the memorandum along with the list of document sent to the court was to afford the court an opportunity to understand how he arrived at his conclusions in the award. According to him, the memorandum was not an unnecessary exercise by the arbitrator. It was meant for the court to read and therefore he submitted that it did form an integral part of the award.

12. We have given our anxious consideration to this important aspect of the case. Perhaps it would be argued that the memorandum was not one of the papers or documents which the arbitrator was bound to submit to the court under S.14(2). S.14(2) obliges the arbitrator to cause the award or a signed copy of it to be filed in the court together with any deposition and document which may have been taken and proved before him. The memorandum does not fall within the scope of these documents. It is beyond dispute now that this memorandum was prepared by the arbitrator. We would refrain from making any guess as to when he prepared this memorandum and as to why he did so. We are now invited to decide the only question whether this memorandum forms part of the award or not. This question is not res integra. The Supreme Court has, in a catana of decisions, laid down the guideline to understand whether a particular document or paper forms part of the award or not. From the passages extracted above we hold that the memorandum in this case cannot be said to be a part of the award and the validity or otherwise of the award and the question whether there is an error apparent on the face of the award cannot be decided with reference to the reasoning in the memorandum. We endorse the submission made by the counsel for the 1st respondent that the pleadings and the grounds of appeal were based on the award alone and were not challenging the reasoning contained in the memorandum. It was under fortuitous circumstances that the parties became aware of the existence of this award at the appellate stage and this fortuitous circumstances cannot be taken advantage to escape from the rigour of the law laid down by the Supreme Court in understanding what is a paper appended to the award or what accompanies the award. We repel the contention of the appellants Counsel that the memorandum forms part of the award.

13. That takes us to the question as to whether there is an error apparent on the face of the award. The 1st respondents counsel submits that the jurisdiction of the Court in examining the errors apparent on the face of the award is the same where the award is a speaking award or a non-speaking award. According to him, interference with awards is permissible only when there is a patent error in the award. Courts are not permitted, by a process of inference and argument, to speculate on the reasoning in the award, and try to substitute their views to the views of the arbitrator, even if they are erroneous. The parties having entrusted the arbitrator with the freedom to resolve disputes between them, his decision is binding, right or wrong, erroneous or not, except where the awards come within the mischief of the errors outlined by binding precedents. According to him, the arbitrator in this case was first appointed by the appellants on 25th November, 1974 in the first dispute and again appointed for the second dispute on 18th October, 1975. The 1st respondent had no choice in this matter. He wanted to impress upon us that the appellants had implicit faith in the arbitrator which is reflected by the two appointments within a span of one year. The awards made by this arbitrator cannot be assailed simply because they have proved inconvenient to the appellants. According to him, unless the appellants satisfy the court of errors of law committed by the arbitrator, in the manner laid down by the binding authorities, the awards will have to stand.

14. Before we consider the awards in this case, we would in brief refer to the guidelines afforded by precedents on this aspect of the case. In A. M. Nair and Co. v. Gordhandas Sagarmull (AIR 1951 SC 9 [LQ/SC/1950/42] ) the Supreme Court has held that if it is shown that the dispute raised by the parties fell within the scope of the arbitration clause, the Court will not be concerned with any error of law or fact committed by the arbitrator and it will not be within the province of the court to determine the true construction in the contract to find out whether the conclusions arrived at by the arbitrator is correct or not. Tharwardas v. Union of India (AIR 1955 SC 468 [LQ/SC/1955/30] ) the Supreme Court was considering the construction put on Clause.6 of the Contract by the Arbitrator. In Para.10, the Supreme Court held thus:

"There can therefore be no doubt that the arbitrator was wrong in his law. His construction of the terms of the contract was at fault. The question now arises whether his decision on this point is final despite it being wrong in law."

and answered the question as follows in Para.12:

"An arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide these disputes according to law and so is bound to follow and apply the law, and if he deem not, he can be set right by the courts provided his error appears on the face of the award. The single exception to this is when the parties charge specifically to refer to a question of law as a separate and distinct matter.

and in Para.13:

"If, therefore, no specific question of law is referred, either by agreement or by compulsion, the decision of the arbitrator on that is not final however much it may be within his jurisdiction, and indeed essential, for his to decide the question incidentally."

This is authority for the position that interpretation of a clause in a contract involves a question of law and that an erroneous decision on a question of law, not specifically referred to the arbitrator, can be the basis of interference at the hands of the court. The same principle is repeated in M/s Alopi Shaiad v. Union of India (AIR 1960 SC 588 [LQ/SC/1960/13] ) and in Union of India v. Rallia Ram (AIR 1963 SC 1685 [LQ/SC/1963/119] ).

15. In Jivarajbhai v. Chintamanrao (AIR 1965 SC 214 [LQ/SC/1963/259] ) the Supreme Court has observed that it is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of his award. In Firm Madanlal Roshanlal v. Hukumchand Mills (AIR 1967 SC 1030 [LQ/SC/1966/150] ) and in Union of India v. Bungo Steel furniture (AIR 1967 SC 1032 [LQ/SC/1966/182] ) also, the Supreme Court declined to interfere with the awards, repelling the contention, in one case that the award was based on an erroneous legal proposition and in the other that affidavits and statements made before the arbitrator were incorporated in the award. In Allen Barry and Co. v. Union of India (AIR 1971 SC 696 [LQ/SC/1971/6] ) the jurisdiction of the Court is further clarified in Para.6 as follows: -

"6. The principle is that the Court, while examining an award, will look at documents accompanying and forming part of the award. Thus, if an arbitrator were to refer to the pleadings of the parties so as to incorporate them into the award, the Court can look at them. In some cases, however, Courts extended the principle and set aside the award on a finding that the contract though only referred to but not incorporated into the award as part of it, had been misconstrued and such misconstruction had been the basis of the award......"

and further observed as follows in Para.7:

"The Privy Council upheld the award stating that it was impossible to say that was the mistake on the face of the award which the arbitrators had made as they had not tied themselves down to any legal principle which was unsound. The mere fact that the Court would have construed a document differently than the arbitrator would not induce the Court to interfere unless the construction given by the arbitrator is such that it is against the well established principles of construction. See Kelanton v. Duff Development Co. (1923 AC 396)."

The above passages would indicate that the court can look into the pleadings of the parties if incorporated in the award and examine whether the arbitrator has misconstrued or misconstructed the terms of the contract. The second passage quoted above whittles down the expansiveness in the earlier passage. If the arbitrator has not tied himself down to any legal principle which is unsound the award cannot be interfered with. The mere fact that the Court would have construed a document differently also would not be sufficient to interfere with the award. The Supreme Court then laid down the principle of incorporation and its effect in the award of a contract or a clause of it in the following words:

"The question whether a contract or a clause of it is incorporated in the award is a question of construction of the award. The test is, does the arbitrator come to a finding on the wording of the contract. If he does, he can be said to have impliedly incorporated the contract or a clause in it whichever be the case. ....." (para 9).

This passage enables the courts to examine the conclusion arrived at by the arbitrator, if the court finds that the arbitrator has come to a finding on the wording of the contract. The court will be at liberty to examine such conclusion even if the contract or a clause of it is impliedly incorporated. Iftikhar Ahmed v. Syed Meharban Ali (AIR 1974 SC 749 [LQ/SC/1974/61] ) and N. Chellappan v. K.S.E. Board (AIR 1975 SC 230 [LQ/SC/1974/381] ) deal with the same principle.

16. We do not think it necessary to multiply citations in this behalf. The law is now settled that where the arbitrator has referred to the dispute between the parties only as a narration in the award or has referred to them in a prefactory manner in the award, the courts will not look into such narration and probe into the award to find out whether there is any error apparent on the face of the award. Again, if the award only refers to the contract between the parties in general, the courts will not look into the contract either. But where the award incorporated the terms of the contract or specific clauses thereof and while interpreting the contract or the clause propounds a legal position which is erroneous and which forms the basis of the award, Court can step in to scrutinise the conclusion based on such erroneous propositions. Even here a guarded approach is prescribed. If the interpretation placed by the arbitrator on a specific clause or the terms of the contract is not patently erroneous, even if an alternative construction by the Court is possible, the Court will not substitute its view to the view taken by the arbitrator. The Courts access is permitted only when the basis of the award is the wrong proposition of law on a misconstruction of the terms of the contract or a specific clause contained therein. It cannot be disputed that the interpretation of a document or interpretation of a particular clause in a document is a question of law.

17. It is with these principles in view that we have to examine the award in these appeals. The examination would cover the questions whether the awards are bad for an error apparent on their face, whether the arbitrator has incorporated the pleadings between the parties in such a manner as to invite consideration thereof by the Court, and whether the arbitrator has incorporated the contract in general or specific clauses therein and has propounded questions of law which are erroneous and which form the basis of the award.

18. We will first examine the award in M.F.A. No. 116 of 1981. This appeal is directed against the order passed by the Court below in O.P. No. 4/80, an application filed under S.30 and 33 of the Act seeking to set aside the award made by the 2nd respondent allowing certain claims made by the 1st respondent on the appellants. The total amount claimed by the 1st respondent was Rs. 45,52,050.53 excluding interest. The 2nd respondent held that the appellants committed breach of contract and it was on this basis that some of the claims were allowed by him. It is necessary to extract portions of the award to examine whether the 2nd respondent has made a speaking award and also to examine whether he has incorporated in the award materials which could be looked into by the court. The 2nd respondent was appointed arbitrator on 25th November, 1974. He entered on the reference on 5th January, 1975. The claims statement was filed on 18th January, 1975 to which a counter was filed by the appellants. Ext. A-1 to A-43 and B-1 to B-205 were marked. C.W.1., R.Ws.1 and 2 were examined as witnesses. In the narrative portion of the award, the 2nd respondent states thus:

"I have considered the effect of the various clauses in the contract documents in the light of the oral and documentary evidence and the arguments addressed by either side based on well known and authoritative texts on Building and Engineering Contracts. In the light of the relevant averments in the claim statement, the counter and other various statements filed in the course of the proceedings and the documents relied on by either side, I have considered the question whether Ext. A-40 forms part of the contract and whether the delays and laches of the employer and the defaults committed by him did have the effect of rendering it impossible for the contractor to commence and complete the work within the dates stipulated therein. The interpretations put on the various clauses in the contract by either side were taken into consideration for ascertaining who committed breach of contract. The arguments addressed by either side were meticulously analysed and sifted in the light of the oral and documentary evidence and the circumstances emerging therefrom to ascertain the importance to be attached to Ext. A-40. The effectiveness of the various exclusion clauses in the contract documents and the consequences arising from breach of contract have been fully considered in the light of the materials placed before me and I make the following Award......"

After this narration, begins the award. Omitting six paragraphs in the award beginning with the words "And Whereas" the 7th, 8th, 9th and 10th paragraphs read as follows:

"AND WHEREAS almost all works mentioned in the stage wise programme are seen to have been pushed forward to periods beyond that envisaged in Ext. A-40 because of the delays and laches of the employer and the defaults and breach of contract committed by him;

AND WHEREAS I am satisfied that the various exclusion clauses relied on by the respondent do not derogate from the effectiveness of Ext. A-40 in so far as it relates to the commencement and completion of the works;

AND WHEREAS I am convinced that Ext. A-40 is part of the contract and that the liability or obligation of the Contractor to adhere to the stage wise programme cannot be displaced by a unilateral extension by the employer of the time for completion, in view of the high increase in the cost of materials, transport and labour prevailing on the date of each job got pushed forward into an extra Contractual period.

AND WHEREAS I have reached the conclusion, on the basis of the materials placed before me, that the respondent has committed breach of contract."

After these paragraphs, the 2nd respondent awarded different amounts under different hands of claims. The 1st respondents counsel submits that the award is a non-speaking award and that the arbitrator has not "incorporated any clause or clauses in the award inviting their consideration by the Court, nor has he raised any proposition of law which is erroneous and which forms the basis of the award. All that the award contains is a narration of the facts, and a reference in general to the exclusion clauses without actually incorporating them in the award. The appellants counsel, on the other hand contends that the arbitrator has actually incorporated the terms of the contract and has considered the effect of the exclusion clauses vis-a-vis Ext. A-40 stage wise programme and has made the award on a misconstruction of the terms of the contract and on a misapplication of the law of contract where the time is of the essence of the contract.

19. We will examine the rival contentions. In the first paragraph quoted above, the 2nd respondent has only made a statement of fact that the appellants rushed forward the stage wise programme beyond the period envisaged in Ext. A-40, because of the laches on their part. This statement of fact cannot be construed as anything beyond a conclusion arrived at by the 2nd respondent on the materials before him. In the second paragraph, the 2nd respondent states that the various exclusion clauses relied on by the appellants did not derogate from the effectiveness of Ext. A-40. Has the 2nd respondent expressly or impliedly incorporated the exclusion clauses by this observation, is the question that presents itself before us. The 2nd respondent finds that the exclusion clauses cannot affect the stage wise programme contemplated in Ext. A-40. In the third paragraph quoted above, the 2nd respondent states that he is convinced that Ext. A-40 is part of the contract and adds that the liability of the 1st respondent to adhere to the time limit in Ext. A-40 cannot be displaced by a unilateral extension by the employer of the time for completion. The reason given for this conclusion is the injustice in pushing forward the different milestones contemplated in Ext. A-40 into an extra contractual period in view of the high increase in the cost of materials, transport and labour charges. Here again, the question arises whether the 2nd respondent has incorporated any clause or clauses of the contract and if so whether he has come to an erroneous conclusion on them permitting the Court to look into such clauses. We would like to make it clear at the outset that we will not be justified in holding that the 2nd respondent has expressly incorporated any of the terms of the contract in the above paragraphs. The further question is whether there is implied incorporation to attract what Denning, L. J. stated in D. S. Balaiber and Co. Ltd. v. Leopold Newborne (London) Ltd. (1953 (2) Lolyds L.R. 427):

"The question whether a contract, or a clause in a contract is incorporated into an award is a very difficult one. As I read the case, if the arbitrator says: On the wording of this clause I hold, so and so, then that clause is impliedly incorporated into the award because he invites the reading of it; but if an arbitrator simply says, I hold that there was a breach of contract, then there is no "incorporation."

20. If in the paragraphs quoted above, we find that the 2nd respondent has incorporated the exclusion clauses and Ext. A-40 in the award in the manner indicated above and has come to a wrong conclusion that there was a breach of contract on the part of the appellants on a wrong construction thereof, then it would be said that he invites the court to the reading of the clauses. The 2nd respondent finds that Ext. A-40 forms part of the contract. It is necessary to see whether the said part is controlled by the other terms in the general contract. It is only then that the question whether the rigour of the time element in Ext. A-40 need be adhered to, despite the terms of the general contract, could be examined. The counsel for the appellant submits that the 2nd respondent should be deemed to have formulated a proposition of law that when time is of the essence of the contract, the other terms of the contract, which derogates from the rigour of the time element, have to be eliminated. We will examine the contention presently.

21. In Hind Construction Contractors v. State of Maharashtra (AIR 1979 SC 720 [LQ/SC/1979/76] ) the Supreme Court was considering the case of a contract, in which time was of the essence of the contract. There, a contract for the construction of an aqueduct was granted to the appellant plaintiff by the respondent defendant, the State of Maharashtra. The work order was issued on July, 2, 1955 and the appellant was directed to commence the work by July, 5, 1955. The formal regular contract in prescribed form was executed by the parties on July, 12, 1955. The period for completion of the work was fixed as 12 months from the date stipulated for commencement of the work which meant that the work was expected to be completed on or before July, 4, 1956. On the ground that the appellant did not complete the work as expected within the stipulated time, the Executive Engineer by his letter dated August 27, 1956, rescinded the said contract with effect from August 16, 1956. Thereupon, the appellant brought the action making a claim alleging wrongful and illegal rescission of the contract. The appellants case was that time was not of the essence of the contract, that the initial fixation of July 5, 1955, as the date for commencement of the work was nominal that the area where the work was to be done had usually heavy rainfall rendering it impossible to carry out the work and that it was the practice of the Public Works Department to deduct the period of monsoon etc. In that case the plaintiff put forward various other difficulties over which he had no control which made completion of the work within the time impossible. He also complained that the extension of time which was permissible under the contract had been wrongfully refused. The State of Maharashtra resisted the claim contending that the time Was of the essence of the contract and the date fixed for commencement of the work was real and not nominal. It was contended that the appellant plaintiff know the situation of the site and the so-called difficulties and that he accepted the work order with such knowledge. The trial Judge held that time was not of the the contract and that the contract was rescinded wrongfully. A decree for a portion of the claim was passed. There were two appeals to the High Court. The High Court proceeded to decide the appeals on the assumption that time was not of the essence of the contract and proceeded to consider whether the rescission of the contract by the State could be regarded as mala fide and unreasonable. The High Court upheld the forfeiture of the security deposit made by the respondent defendant on the ground that it was the plaintiff - appellant who committed the breach. The trial court decree was modified by reducing the amount decreed to the amount for the work actually done by him. The plaintiff moved the Supreme Court. Before the Supreme Court there was sharp controversy between the appellant and the respondent as to whether time was of the essence of the contract. While the appellants contended that time was not of the essence of the contract, the respondent controverted that plea. The Supreme Court observed thus after referring to a passage in Halsburys Laws of England 4th Edn. Vol. 4 Para.1179 dealing with building and engineering contracts:

"8. It will be clear from the aforesaid statement of law that even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; for instance, if the contract were to include clauses provided for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of essence of the contract........."

The Supreme Court referred to Clause.2 and 6 of the conditions of contract in that case. Clause.2 insisted on the contractor to complete the work during the stipulated period. Clause.6 enabled the contractor to seek extension of time from the Executive Engineer if the work was unavoidably hindered for reasons beyond his control, before the expiry of the period in the tender, and the Executive Engineer could grant extension as he thought necessary or proper and his decision in the matter were to be final. Construing the two clauses, the Supreme Court held that the time was not of the essence of the contract and in that case extension of time was granted beyond the agreed period and the Supreme Court applied the principle of waiver also. The rescission of the contract by the State of Maharashtra was held to be improper and it was held that it had committed a breach of contract.

22. This decision was rendered in an appeal from a suit. The principles of law applicable to suits and appeals may not strictly apply to arbitration proceedings. The courts jurisdiction in interfering with or disturbing the award of an arbitrator is not similar to that of an appellate court. The court cannot exercise an appellate jurisdiction in such matters. We have referred to the decision only to seek support for an examination by us of the scope of the exclusion clauses and their impact on Ext. A-40.

23. The 1st respondents case is that time was of th6 essence of the contract under Ext. A-40. Ext. A-40 is the stage wise programme of works for the period from September, 1973 to December, 1974 issued by the appellant to the 1st respondent. The appellants case is that Ext. A-40 is an independent contract but controlled by the general terms of the contract. According to the counsel for the appellants, the premature rescission of the contract by the 1st respondent was unjustified because the general terms of the contract stipulate extension of time though a unilateral one. which cannot be questioned by the contractor. To understand this, we will have to consider the facts of the case and examine whether the appellants can be deemed to have repudiated the contract by their conduct.

24. The learned counsel for the 1st respondent invited us to a few passages from Law of Contract by Cheshire and Fifoot, 10th Edition, in support of his contention that there was repudiation by the appellants. Reliance was placed upon the following passage at page 145:

(4) If there is any doubt as to the meaning and scope of the excluding or limiting term, the ambiguity will be resolved against the party who had inserted it and who is now relying on it. As he seeks to protect himself against liability to which he would otherwise be subject, it is for him to prove that his words clearly and aptly describe the contingency that has in fact arisen. Thus it may happen that, apart from the contract, he may find himself in a situation where the law casts upon him not only a duty of care but also some form of strict liability. In such a case, unless the language of the contract manifestly covers both types of obligation, he will be taken to have excluded only the latter.

* * * * *"

The 1st respondents counsel submitted that the appellants had a duty to satisfy the court that it had acted fairly and not to the prejudice of the contractor. He also placed reliance upon the following passages to contend that the appellants had by their conduct repudiated the contract. The passage reads as follows:

"Repudiation in the present sense occurs where a party intimates by words or conduct that he does not intend to honour his obligations when they fall due in the future. In the words of Lord Blackburn:

"Where there is a contract to be performed in the future, if one of the parties has said to the other in effect if you go on and perform your side of the contract I will not perform mine, that in effect, amounts to saying I will not perform the contract. In that case the other party may say, you have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as having put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract.

* * * * *

A repudiation is implicit where the reasonable inference from the defendants conduct is that he no longer intends to perform his side of the contract.

* * * * *

The result, then, of a repudiation, whether explicit or implicit, is that the innocent party acquires an immediate cause of action. But he need not enforce it. He can either stay his hand and wait until the day for performance arrives or treat the contract as discharged and take immediate proceedings."

The learned counsel for the appellants replied saying that it would be wrong to infer repudiation from the appellants conduct simply because there was delay in making available the site etc. The 1st respondent had time enough to complete the work and also opportunity to ask for extension of time. The premature rescission of the contract by the 1st respondent, according to him, in the circumstances of the case, cannot be justified.

25. While considering this aspect of the case we may advert to another passage in the same book under the heading: Proof of repudiation: (page 485)

"Whether a breach of contract amounts to a repudiation is a serious matter not to be lightly found or inferred. What has to be established is that the defaulting party has made his intention clear beyond reasonable doubt no longer to perform his side of the bargain. Proof of such an intention requires an investigation inter alia of the nature of the contract, the attendant circumstances and the motives which prompted the breach. In the words of Lord Selbone:

You must look at the actual circumstances of the case in order to see whether the one party to the contract is relieved from its future performance by the conduct of the other; you must examine what that conduct is so as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract...... and whether the other party may accept it as a reason for not performing his part.

* * * *

26. By exclusion clauses, one party to a contract inserts terms excluding or limiting liabilities which would otherwise be his. Normally exclusion clauses are regarded as mere defence. One should first construe the contract without regard to the exemption clauses in order to discover the promisers obligation and only then consider whether the clauses provide a defence to breach of these obligations. Denning, L. J., outlines the scope of exclusion clauses in the following words dealing with a hire purchase agreement in Karsales (Harrow) Ltd. v. Wallis (1956 (2) All ER 866) at 868:

"The law about exempting clauses, however, has been much developed in recent years, at any rate about printed exempting clauses, which so often pass unread. Notwithstanding earlier cases which might suggest the contrary, it is now settled that exempting clauses of this kind, no matter how widely they are expressed, only avail the party when he is carrying out his contract in its essential respects. He is not allowed to use them as a cover for misconduct or indifferences or to enable him to turn a blind eye to his obligations. They do not avail him when he is guilty of a breach which goes to the root of the contract. It is necessary to look at the contract apart from the exempting clauses and see what are the terms, express or implied, which impose an obligation on the party. If he has been guilty of a breach of these obligations in a respect which goes to the very root of the contract, he cannot rely on the exempting clauses. I would refer in this regard to what was said by Rocie, J., in Pinnock Bros. v. Lewis and Peet, Ltd. [1923 (1) KB 690 at p. 696] to the judgments of Devlin, J. in Alexander v. Railway Executive [1951 (2) All. ER 442] and Suration Manscomb & Co. Ltd. v. Sessoon I. Setty Son & Co. [1953 (2) All. ER 1471] and a recent case in this Court, 3, Spurling Ltd. v. Sradonhaw (S) (ante, p. 121), and the cases there mentioned. The principle is sometimes said to be that the party cannot rely on an exempting clause when he delivers something different in kind from that contracted for, or has broken a fundamental term or a fundamental contractual obligation. However, I think that these are all comprehended by the general principle that a breach which goes to the root of the contract disentitles the party from relying on the exempting clauses."

(pp. 868-769)

Here we are dealing with exclusion clauses in a building contract. Even so, we thought it useful to refer to the above passage to understand, as to how the exclusion clauses, could be understood to operate, when they are put forward as a defence.

27. It will be useful at this stage to refer to the sequence of events as is seen reflected in the correspondence. The work order was given on August 28, 1973. On 30th October, 1973 the 1st respondent informed the Chief Engineer of the appellants that necessary materials may be supplied and the structural drawings of bagged storage may be made available. On 7th November, 1973 the Chief Engineer was reminded of the detailed drawings. On 13th November, 1973 he was told to clear the site of other materials. On 17th December, 1973 he was told for supply of materials and make available drawings. On 2nd January, 1974 he was told that the work of the empty bagged storage was being delayed because the site was not cleared. Regarding the bulk storage he was told that the detailed drawings had not been furnished. On 10th January 1974, he was again told that the balance work of phase II was being paralysed due to non-availability of materials and lack of proper power connection. On 8th February, 1974 he was again told of these difficulties. In the review of the work report from 8th February, 1974 and 10th March, 1974 the same difficulties were notified. In the letter, dated 10th March, 1974 the Chief Engineer was told that the 1st respondent had not yet received the notice to start the work of the bagging plant. On 29th April, 1974 in the fourth review, the Engineer was told that if the 1st respondent was permitted to stick to the stage wise programmes, many of the problems could have been avoided and he could have proceeded with the work as agreed. It was further stated that it was not progressing satisfactorily because of the difficulties created by the non-cooperation of the appellant. Work from 18th May, 1974 had to be stopped for two months because of a strike by the appellants employees. It was in the context of these developments that we have to consider whether the appellants have repudiated the contract by their conduct. It is in this context again that the conclusions of the arbitrator extracted above have to be considered.

28. The 1st respondents counsel pleaded that the award did not incorporate any clause or clauses of the contract and therefore a detailed discussion of the terms of the contract to invalidate the award was not permissible. According to him, the arbitrator had only referred to the clause in general and has stated his conclusions in the award. The appellants counsel on the other hand, vehemently pleaded that in the paragraph extracted above the 2nd respondent had impliedly incorporated in the award the exclusion clauses and Ext. A-40, and before concluding whether there was any error apparent on the face of the award these clauses had to be closely studied.

29. We have already adverted to what Denning, L. J. said in considering such questions. We may also refer to the decision reported in F. R. Abasalom Ltd. v. Great Western (London) Garden Village Society Ltd. (1933 AC 592) before deciding ourselves whether the terms of the contract have been incorporated. In that case, the appellants were the contractors who entered into a contract, dated November 14, 1928 with the respondents who were the employer for erecting 24 houses subject to the conditions set forth in the schedule to the contract. The relevant conditions that fall to be considered were Nos. 26, 30 and 32. The dispute arose between the contractor and the employer and they resorted to arbitration. The arbitrator made and published his award, the third paragraph of which read as follows:

"3. I award and judge that having regard to the provisions of Clause.30 of the said conditions providing that the contractors should be entitled upon the valuation of the surveyor and under the certificates to be issued by the architect to the contractors within the period in that clause mentioned to payment by the employers from time to time by instalments when in the opinion of the architect actual work to the value of 100001 had been executed in accordance with the contract at the rate therein provided the architect had up to the said 11th day of March 1929, issued to the contractors certificates in accordance with the terms of the contract." (page 605).

The contractors were directed to pay certain amounts to the employer. Upon a motion to set aside the award, a Divisional Court of the Kings Bench Division ordered that the award should be remitted to the arbitrator for his reconsideration. The order of the Divisional Court was set aside in appeal. The matter went before the House of Lords by leave given by the Court of appeal. After referring to various authorities, the House of Lords addressed itself to the question whether the reference in that case was on a specific question of law or not. It was held that no specific question of construction or of law was submitted. It was observed:

"The parties had, however, been ordered to deliver pleadings, and by their statement of claims the contractor had claimed that the arbitrator should under his powers revise the last certificate issued etc......" (p. 510).

Then the following observation occurs in the speech by Lord Russal of Killowin:

"It is at this point that the question of the construction of condition 30 arose as a question of law, not specifically submitted, but material in the decision of the matters which had been submitted. This question of law the arbitrator has decided; but if upon the face of the award he has decided it wrongly his decision is in my opinion open to review by the Court." (page 610)

The noble Lord then considered the question whether his decision was erroneous. On a consideration of condition No. 30 it was held that the decision was erroneous, and that the arbitrator had misconstrued condition No. 30 and had thereby erred in law. He then proceeded to say thus :

"There still remains the question whether this error of law is apparent on the face of the award. I think it is. The award recites the contract and refers in terms to the provisions of condition 30. Condition 30 accordingly is incorporated into and forms part of the award just as if the arbitrator had set it out verbatim and had then proceeded to state the construction which he placed upon it. The Court can look at it just as it looked at the answers of the Divisional Court.. . . in the British Westing House Co.s case [1912 AC 673] at the contract in Landauer v. Asser [1005 (2) KB 184] and at the pleadings in Kelantan case [1923 AC 395]." (p. 611 and 612).

If we go by these decisions it may be difficult to hold that the arbitrator has incorporated the terms of the exclusion clauses in the award. The arbitrator had not set out the exclusion clauses verbatim and had not considered them after extracting them verbatim. Even so, we feel that the arbitrator has impliedly incorporated the exclusion clauses and considered the effectiveness of Ext. A-40 with references to these clauses. We hold that by such incorporation the arbitrator has invited the court to look into the clauses to find out whether the statement of law and the conclusions made by the arbitrator on a consideration of these clauses is erroneous and that even if there is an error it needs to be considered whether this error is apparent on the face of the award.

30. Ext. A-40 is not a written contract. It is a sort of graph drawings in six pages dealing with the stage wise programme of works in the Cochin Fertiliser Phase II. The various works shown in Ext. A-40 can be considered as separate contracts. In fact several contracts have been rolled into one. Ext. A-40 shows the time for the beginning and completion of each work. We will illustrate with reference to one work alone. For the works at Ambalamedu Bagging Plant, foundation is to begin from October, 1973 and to end in November, 1973; R.C.C. Columns etc. to begin in November, 1973 and to end in June, 1974; Brick work, doors, etc. to begin in January, 1974 and to end in July, 1974; structural steel fabrication, erection etc. to begin in June, 1974 and to end in August, 1974; A.C. sheeting to begin and end in September, 1974; Flooring Plastering to begin in June, 1974 and to end in December, 1974; Water Supply and Sanitary works to begin in August, 1974 and to end in December, 1974; and finishing to begin in October and to end in December, 1974. Similar are the time schedules or milestones, as it is called, for various other works. The work order dated 22nd August, 1973 marked as B-54(c) - A-1 has to be read to understand as to how the parties agreed about the completion of this work. The following paragraph is relevant :

"The work should be completed in all respects within 15 months from the date of starting the work. The work shall be started at site within fifteen days from the date of receipt of this work order. The Contractor shall programme his work in such a way as to adhere strictly to the stage wise programme for construction which he has accepted. In case the contractor fails to achieve any of the milestones in this stage wise programme, it will mean that he is unable to complete the work within the stipulated time. This stage wise programme will form part of this contract."

and also the following clause :

"This work will be subject to our General and Special conditions of Contract copies of which are enclosed."

What is stated above is a clear indication that the parties agreed time to be of the essence of the contract. In the work order the employer has insisted for the strict adherence to the stage wise programme for each of the milestones. The rigour of this condition is made more stringent by the stipulation that if the contractor fails to achieve any of the milestones it would mean that he has failed to complete the work within the stipulated time. If we read this clause side-by-side with Ext. A-40 it would admit of no doubt that the contractor was expected to achieve every milestone within the agreed time. The question that has to be considered then is the effect of the clause extracted above that the work will be subject to general and special conditions of the contract. Would the rigour of the time scale be watered down by the operation of the other general and special conditions. Has the contractor any freedom to put off the stage wise programme beyond the contractual period. Has he a right to get extension of time from the employer. Would he be justified in assuming repudiation of the contract by the employer once he finds that the employer has not been cooperating with him to complete each of the mile stones in the stage wise programme.

31. In this context we read Art.2 of the agreement Ext. A-54(cl) dated 6th September 1973 :

"Time shall be considered as the essence of the agreement and the contractor hereby agrees to commence the work as soon as this agreement is accepted and the site handed over to him which should not exceed two weeks from the date of award of the contract and agrees to complete the work within fifteen months from the date of commencement and to show progress as indicated in the stage wise programme for construction which he has accepted. In case the contractor fails to achieve any of the milestones in this stage wise programme, it will mean that he is unable to complete the work within the stipulated time."

The arbitrator has given due importance to this clause which is again seen reflected in the passage extracted from the work O.854(c) : When time is of the essence of the contract, the time schedule has to be respected. Non-adherence to the time schedule would result in the legal consequences mentioned above and if the contractor had not completed each milestone within the time prescribed same result would follow. If the employer had done all that was necessary to be done by him, the contractor would naturally be liable for the loss occasioned to the employer. If that were the case before us we would have unhesitatingly held the contractor guilty of breach of contract. But in this case, the breach alleged, has to be considered in the context of the complaint by the contractor of inaction on the part of the employer. The arbitrator has held that the exclusion clauses will not derogate from the effectiveness of Ext. A-40. For a proper appreciation of this aspect of the case it is necessary to advert in brief to the clauses which go by the name exclusion clauses.

32. The exclusion clauses are contained in the printed copy supplied by the employer. The tenderers are told to read the conditions contained in the printed form and to abide by that. In Ext. B-54 Chapter A, Clause.5 the tenderers are told that they are deemed to have understood the position regarding the site, drawings, specifications, transport facilities etc. In Clause.11 the time is fixed as 15 months for the completion of the contract reckoned from the date mentioned in the work order and the last sentence in that clause is:

"In this respect, the time shall be the essence of the contract."

In Clause.23, the successful tenderer is told that no claims can be made against the employer if the work is postponed to a later date or abandoned in the interest of the employer or for any other reason, and that the employers decision in the matter shall be final and binding on the contractor. Clause.30 deals with alteration of specifications, pattern and drawings which is also within the powers of the employer whose decision shall be final and conclusive. Chap.8 deals with general conditions of contract. Clause.5 stipulates that the contractor shall commence the work on or before the date mentioned in the work order and shall complete it to the entire satisfaction of the Engineer and employer in conformity with such instructions and hand it over to the employer on completion. On the work being awarded the contractor must submit a detailed programme for the execution of the several component items of work covered by the contract. He should also submit to the Engineer progress reports of work done at such intervals as may be prescribed by the Engineer and such programme will be subject to the alterations or modifications as the Engineer may in his discretion make. Clause.5(iii) mandates the contractor to fully and finally complete the work covered by the contract by the dates stipulated in the contract. If any changes have been ordered which in the opinion of the employer materially increases the magnitude of the work extension of time that may appear to be reasonable in the circumstances, can be granted by the employer. Extension of time however, has to be sought by the contractor. Clause.5(iv) stipulates that failure or delay by employer to hand over to the contractor possession of the lands necessary for the execution of the work or any other delay due to any other cause whatsoever shall in no way effect or vitiates the contract. The employer may extend the time for completion of the work in such circumstances by such period as may be considered necessary or proper. Clause.5(v) stipulates that the decision of the employer as to the need for extension of time to the contractor shall be final and shall not be called in question. Completion of work, however, as aforesaid, shall be deemed to be of the essence of the contract and if the contractor fails to complete the work within the prescribed time, the employer shall be entitled without prejudice to any other right or remedy available to it in that behalf to recover by way of ascertained and liquidated damages a sum equivalent to 1 per cent of the contract. Clause.13 stipulates that the employer will be at liberty to require the contractor to perform extra items or quantities of work. Clause.14 deals with power of the Engineer to order suspension of the work and the employer can extend the time for completion of the work on such suspension which decision shall be final. The contractor cannot in any contingency without the prior knowledge and approval of the employer suspend the work. If he wants to do it, he has to report to the Engineer furnishing the reasons for such suspension. Chapter C deals with special conditions of contract. The employer reserves the right to increase or decrease the quantity of work upto an extent of 25 per cent. Clause.12 deals with time schedule. It states that "the contractor to whom the contract is awarded shall so arrange and plan the progress of the work that the entire work is completed in all respects and handed over to the employer not later than FIFTEEN months (as detailed below) reckoned from the date of award of the contract to him by the Employer. In this respect, the time shall be the essence of the contract". The above are the relevant provisions by which the employer has reserved to himself unilateral powers not subject to any control by the contractor. On 19th April, 1973 the 1st respondent wrote to the appellants as follows:

"Regarding time of completion for works we will try all our best to adhere to the time schedule specified in the conditions of contract. But any delay due to reasons beyond our control like delay in furnishing drawing postponement of any item of work by the company, modification or variation of plans or specifications, failure to supply materials in time, labour strike unprecedented weather conditions etc. will not be our responsibility."

finally, as per letter dated 6th August, 1973 the 1st respondent agreed to withdraw all the conditions put forward by them and accepted the contract resulting in the work order Ext. 854(c) being issued.

33. The 1st respondents counsel argued that the stage wise programmes contemplated in Ext. A-40 stipulating separate period of performance for the construction of different structures in the contract and laying down that failure to achieve any of the milestones specified in Ext. A-40 would lead to the conclusion that the contractor was unable to perform the contract which provision was incorporated intentionally by the parties after negotiations subsequent to the tender, should be deemed to be incorporation of provisions superseding the conditions in the tender notice which run counter to these specific conditions. The insistence of performance of each milestone within the prescribed period according to him renders ineffective or inoperative the clauses providing for extension of time. According to him, when time is made of the essence of the contract and a clause to that effect is incorporated by the parties into the contract, such a clause cannot co-exist with conflicting clauses in the tender invitation form providing for extension of time and liquidated damages for delay in execution of the contract. He contended that Ext. A-40 prevailed over the General clause and the contractor was in law entitled to rescind the contract when the employer by his unilateral conduct rendered adherence to the time schedule difficult. In support of this submission, he invited as to a passage in Cheshires Law of contract at page 143 about the so-called "battle of the forms", and contended that when forms are exchanged between the contracting parties the last form should be regarded as the one which decides the terms of the agreement. The learned counsel for the appellants reply was that the doctrine of "battle of the forms was inapplicable to the case on hand because the case did not relate to exchange of any form. In this case the parties were bound by the terms of the general contract even for Ext. A-40. To understand what the parties agreed, general terms and Ext. A-40 have to be read together.

34. On an anxious consideration of the rival contentions put forward before us we hold that as far as Ext. A-40 is concerned time is of the essence of the contract. Even so, in our view, the terms of the general conditions of the contract cannot be completely eschewed from consideration. Even where time is of the essence of the contract occasions will arise where the contracting parties will have to push the contract beyond the contractual period for reasons beyond the control of either of them or both of them, like Vis Major Force Majure and the like. That even in cases where time is of the essence of the contract other conditions can be looked into, has been laid down by the Supreme Court in the decision reported in 1979 SC 720 [LQ/SC/1979/76] already referred to.

35. We proceed on the basis that Ext. A-40 is governed by the general conditions of the contract. The contract in question is one for the construction of various structures extending over a period of 15 months. This contract is not like a marriage contract or a contract for a musical performance or even for sale of goods which contracts would get frustrated on the happening of an event giving rise to a cause of action against the party who is responsible for the breach. Since this contract with each of its milestones extends over a period of 15 months it cannot be said that the contract would get frustrated on the happening of any particular event. The question would still arise whether the contractor, even though satisfied, that the employer has not been acting in conformity with the stipulations and thus acting to his prejudice in making it impossible for him to adhere to the time schedule should wait till the last date of the expiry of the period of contract. To contend so would be to do injustice to an innocent party. If from the materials available it could be found that the conduct of the employer was unhelpful to the contractor the contractor would in some circumstance be justified in treating such conduct as a repudiation of the contract on the part of the employer entitling him to rescind the contract. In this case the correspondence show that the contractor had been requesting the employer to do what is expected of them to do under the contract so that he could adhere to the time limit. In addition to the various defaults committed by the employer there was a strike of the employees of the appellants for two months physically disabling the contractors work being proceeded. The strike cannot be characterised as Vis Major or Force Majure. We cannot read into Ext. A-40 or into the exclusion clauses any understanding that the contractor was obliged to continue the work till the last date of the contract period irrespective of defaults committed by the appellants. In this connection we may refer to Ext. A-13, dated 2nd January, 1974 in which the Chief Engineer of the appellant was told that the 1st respondent had lost two months already to start the work because the drawings etc. were not made available, and to Ext. A-15, dated 8th February, 1974 in which he was told that the 1st respondent was still awaiting the clearance to commence the work of the bagging plant, that a portion of the building was still held up as they had not received clearance yet and alerting the Chief Engineer about the various other delays on the part of the appellants and to Ext. A-16, dated 10th March, 1974 in which also he was told that the 1st respondent had not yet received the notice to start the work of the bagging plant and informing him of the steep increase of prices for various commodities and requesting him to help the 1st respondent from his predicament and to Ext. A-18 which is the fourth review of the progress of the work where also he was told that for want of timely decisions by the Company, the stage wise programme could not be promptly attended to. The 1st respondent sent Ext. A-31 on 7th August 1974 which is a very detailed letter. The appellants were told that because of their non-cooperation out of the 14 months specified for the completion of the bagging plant work 10 months had already been wasted and that the calculation and programme of the 1st respondent had been completely frustrated for no fault of theirs. It is pertinent to note that the appellants did not respond to these requests by granting extension of time to the 1st respondent. These letters would show that all the delays were caused by the appellants. The appellants would have been justified in disputing the 1st respondents claim if they had indicated their mind as to whether extension could be granted or not because under the relevant clauses extension of time has to be granted by them which decision is not disputable before any one. The further developments would show that there was a revised stage wise programme drawn up in September, 1974 as a result of discussions. There was a suggestion to incorporate this revised stage wise programme into the contract as a time-bound programme. Even this did not find favour with the appellants. In Ext. A-33, dated 2nd September, 1974 the Chief Engineer was told that the complaint that the work was not going with increasing tempo after the strike was lifted was not justifiable and that the delay was attributable to the conduct of the Company. In that letter the 1st respondent mentioned that they were happy to note that at least at this late stage the appellants had realised that no delay in any of the items of work could be afforded. The 1st respondent requested the settlement of various matters, rights and claims immediately. In Ext. A-34, the appellants complained that the suspension of work by the 1st respondent as being unjustified and alerted them to resume construction activities failing which no further payment would be made. This was followed by Ext. A-35, dated 9th September, 1974 in which the appellants were told that at the discussions held on 18th August, 1974 their Managing Director had instructed the Chief Engineer to draw up a revised stage wise programme in the light of the changed context and accordingly a revised construction schedule was drawn up. The 1st respondent decided to execute the work according to the revised schedule inspite of heavy odds against them on certain conditions. There was a discussion on 6th September, 1974 which proved futile. The 1st respondent agreed to work according to the revised programme and made a request to give Rs. 3 lakhs as immediate advance. This did not find favour with the appellants. The appellants were reminded of the fact that the contract was a time-bound one and this was shattered on account of the defaults of the Company. At the time of the discussion held on 6th September, 1974 the 1st respondent was told to wait indefinitely. The 1st respondent wrote to the appellant that it was not possible for them to wait indefinitely for a decision being taken by the appellants even regarding elementary matters. The revised construction schedule was drawn up by the appellants and it was agreed by the 1st respondent on condition that the work would be allowed to be continued in an uninterrupted fashion from the time it was resumed on 15th July, 1974. The appellants were told that if no reply was received to the letters, dated 7th August, 1974 and 22nd August, 1974, the 1st respondent would be constrained to treat the contract as rescinded.

36. The arbitrator had before him all these materials when he referred to the exclusion clauses and Ext. A-40. The statement in the award that the stage wise programme was pushed forward to periods beyond that envisaged in Ext. A-40 because of the delays and laches of the employer is a statement of fact and a conclusion arrived at by the arbitrator on a consideration of materials before him. We will be exceeding our jurisdiction in faulting this conclusion of the arbitrator for it cannot be said that this conclusion is erroneous. The conclusion by the arbitrator that the exclusion clauses relied on by the appellant did not derogate from the effectiveness of Ext. A-40 in so far as it relates to commencement and completion of the work also cannot be said to be an erroneous approach for the reason that in the circumstances of the case the appellants have not in any manner indicated their readiness to extend the time even though they were repeatedly told that the 1st respondent is not in a position to adhere to the stage wise programme because of the fault on the part of the appellant. In the next paragraph the arbitrator observes that the liability or obligation of the contractor to adhere to the stage wise programme cannot be displaced by a unilateral extension by the employer of the time for completion. This again is a conclusion the arbitrator has arrived at on the materials available. From the work order it is clear that in case the contractor fails to achieve any of the milestones in this stage wise programme it would mean that he is unable to complete the work within the stipulated time. The contractor cannot indefinitely wait for instruction from the employer.

37. In the prefactory portion of the award, the arbitrator observes that "he considered the effect of the various clauses of the contract document in the light of the oral and documentary evidence and the arguments addressed by either side" and that he considered the question whether Ext. A-40 forms part of the contract and whether the delays and laches of the employer and the defaults committed by him did have the effect of making it impossible for the contractor to commence and complete the work within the dates stipulated therein, that the interpretation put on the various clauses on the contract by either side were taken into consideration for ascertainment of who committed the breach of contract and the effectiveness of the various exclusion clauses in the contract documents and the consequences arising from breach of contract. The arbitrator had in view the non-cooperation attitude on the part of the appellants in not granting extension of time or in not responding to the various requirements necessary for the execution of the contract. The additional reason that persuaded the arbitrator to hold that the liability to adhere to the stage wise programme cannot be displaced, is the steep increase in the cost of the materials etc., about which the 1st respondent had repeatedly informed the appellants. Viewed thus, it cannot be said that the arbitrator after incorporating the exclusion clauses and Ext. A-40 in the award, formulated an incorrect proposition of law. From the circumstances of the case, the conclusion appears to us to be justifiable. In this context, we find that the reliance by the counsel for the 1st respondent on S.39, 52 and 55 of the Contract Act is well founded. Before parting with this aspect of the case, we may in passing refer once again to AIR 1979 SC 728. There, after reading the clauses, the Supreme Court held that because the employer had granted extension of time, time could not be of the essence of the contract. The decision not to extend time there after and the consequent realisation of the contract by the State of Maharashtra was held to be invalid and the contractor was given relief by the Supreme Court. Seeking support from that decision the appellants would have been justified in repudiating the claim of the 1st respondent and found fault with the award if they had in time acceded to the request of the 1st respondent to the extension of time or acceded to their request to adopt the revised stage wise programme or at least satisfactorily explained the reason why time was not extended. From the inaction and conduct on the part of the Company a reasonable inference was possible that they no longer intended to perform their side of the contract. Repudiation therefore could be implicitly inferred. We have examined the relevant documents in this appeal and referred to the questions of law, to see whether the arbitrator had committed any error in his conclusion. He came to his conclusions based on these materials. For our satisfaction, therefore, we felt it necessary to consider the relevant materials ourselves. We hold that the conclusions of the arbitrator are not erroneous on the materials available. We therefore hold that there is no error of law on the face of the award; that the arbitrator has not come in an erroneous decision nor has he formulated an erroneous proposition of law as the basis of his award. The request to set aside the award has therefore to be rejected. In the result, we dismiss M.F.A. No. 116 of 1981 and confirm the order of the court below:

M.F.A. No. 118 of 1981:

This appeal is against the order passed by the Court below dismissing the claim of the appellant for Rs. 10,12,488.32 being the loan sustained by the appellant company on account of the entrustment of the work to others consequent upon the breach of contract committed by the 1st respondent. The court below declined to set aside the award made by the 2nd Respondent holding that there was no error apparent on the face of the award. The counsel for the Appellants contends that the award is erroneous and has to be set aside. The submissions made in the other appeal, according to him, apply to this case also.

38. The 2nd respondent was appointed sole arbitrator in this case by letter dated 10th October, 1975. He entered on this reference on 13th December, 1975. Claims statements etc. were filed. Both the references were heard together and disposed of together by consent of the parties. The 2nd respondent noticed the conclusion arrived at by him in the first reference that it was the appellant who committed the breach of contract and then made the award in this reference following that conclusion, and held that the appellants were not entitled to compensation claimed under the various heads. The award in this case is not a speaking order. There is no reference to any of the clauses. Nothing has been incorporated by the arbitrator in this award. The appellants have not made out a case to interfere with the order of the Court below. This appeal also therefore stands dismissed.

M.F.A.No. 117 and 128 of 1981:

These appeals can be disposed of together. These appeals are directed against the orders passed by the Court below in O.P. Nos. 36 and 37 of 1979 passing decrees in terms of the awards. These appeals are also filed under S.39(1)(vi) of the Arbitration Act, 1940. The learned Counsel for the 1st respondent raised a preliminary objection about the maintainability of these two appeals. According to him, an appeal under S.39 lies only from the orders enumerated in the said section. The section quoted in terms appear in S.39(1)(vi) which deals with "setting aside or refusing to set aside an award". The order under challenge is not an order coming within this sub-clause. The decree was passed by the Court under S.17 of the Act. S.17 provides that no appeal shall lie from such a decree except on the ground that it is an excess of, or not otherwise in accordance with the award. These appeals are not under S.17. The preliminary objection has therefore to be sustained.

39. Learned Counsel for the appellants requested that in case the appeals were to be held not maintainable, they might be converted into revisions. In a recent judgment rendered by us in M.F.A. Nos. 113, and 115 of 1981, an objection was taken that in the absence of an appeal against a decree passed under S.17, an appeal against the order refusing to set aside the award would not be maintainable. We held that the omission to file an appeal against a decree passed under S.17 would not render the appeal filed under S.39(1)(vi) invalid for the reason that if the award is set aside in the appeals filed under S.39(1)(vi), the decree passed in terms of the award would automatically disappear. Therefore even if M.F.A. Nos. 117 and 128 have not been filed, the appellants could still get their reliefs if they substantiated their claims in M.F.A. Nos. 116 and 118. Under these circumstances, we feel that the request to convert the M.F.As. into revisions, have to be accepted and we do so. Still we hold that no jurisdictional error was committed by the Court below in passing decree in terms of the awards. The appeals converted into revisions have therefore only to be dismissed.

In the result, we dismiss M.F.A. Nos. 116 and 118 of 1981 with costs of the 1st respondent and dismiss M.F.A. Nos. 117 and 128 of 1981 with direction that the parties will bear their respective costs.