NAGENDRA PRASAD SINGH, J.

(1.) This is an appeal under Section 39 (vi) of the Arbitration Act, 1940 (hereinafter referred to as the Act) against an order passed by the Additional Subordinate Judge, Third Court, Purnea, refusing to set aside an award.

(2.) The short facts of the case are these : The appellant company entered into a contract with the respondent State some time in March, 1966 for construction of approach overbridges on Purnea-Katihar railway line and Purnea-Katihar road as per rates approved by the Additional Chief Engineer, Lateral Road Project (East), Patna. The rates were approved up to maximum lead of 600 ft, and maximum lift of 14,00 ft. Upto June, 1966, the appellant excavated all the earth available within a lead of 600 ft. and then, under their letter, dated the 11th June, 1966, they informed the Executive Engineer that henceforward they had to excavate earth beyond a lead of 600 ft. In that letter they quoted a rate of Rs. 180/- (per thousand) oft. beyond a lead of 600 and within one mile. In October, 1966, the S.D.O., L.R.P. Works Division, Purnea, directed the appellant to carry on the earth work beyond 600 lead. The work done beyond 600 was duly recorded in Measurement Book No. 93. Later, under a letter, dated the 1st December, 1966, the Executive Engineer informed the S.D.O. Works Division that the schedule rate of Purnea P.W.D. Circle for carriage of materials within one mile lead beyond the initial lead of 600 was Rs. 90/- %0 cft. and the schedule rate for earth cutting was Rs. 20.50 paise %0 cft. and directed that a supplementary agreementbe got executed by the appellant. A supplementary agreement was, accordingly, drawn up and signed by the appellant and the S.D.O. and it was referred to the Additional Chief Engineer, L.R.P. (East). Patna for approval, under a letter of the Superintending Engineer, dated the 15th April, 1967. The Additional Chief Engineer, under his letter, dated the 22nd April, 1967, authorised the Superintending Engineer to approve the rates as recommended by him and the Executive Engineer. As per agreement noted in Measurement Book No. 93, the appellant had done cutting of earth, to the tune of 18,16,683 cft. for which they claimed a sum of Rs. 2,00,743.14 paise. Out of the said amount. Rupees 1,22,738.21 Paise was paid to them and they claimed the balance amount of Rs. 78,004.93. They also claimed certain amounts under different heads with interest, the total being Rs. 1,68,297. 14 Paise. There was correspondence between the Superintending Engineer, Executive Engineer and the appellant and finally the Superintending Engineer approved the rate of Rs. 85/- %0 cft. by his letter dated the 15th November, 1967. The appellant not being willing to accept the said rate, there was a difference between the parties, and ultimately by a letter dated the 27th February, 1960, the appellant prayed for an arbitration and the Superintending Engineer, L.R.P. Works Circle, Purnea was appointed as the sole arbitrator in accordance with the arbitration clause in the agreement.

(3.) By the impugned award, dated1 the 31st August, 1968. the arbitrator held that the appellant had carted earth beyond 600 lead from different heights totalling 14.43.989 cft. and was entitled to rates between Rs. 65/- to Rs. 101/- per thousand cft. The break-up of the tstal earth work done and the rates at which the appellant was held to be entitled were as follows:-- Appellant held entitled to.

(4.) On the 7th September, 1968, the award was filed in Court by the said arbitrator. On the 30th October, 1968, the appellant filed an objection to the said award and made a prayer for setting aside the same on grounds mentioned in the objection petition. The learned Subordinate Judge, on a consideration of the facts and the circumstances of the case, by his order, dated the 28th April, 1969, rejected the objection of the appellant holding that no ground had been made out for setting aside the award. He also directed that the .award be made a rule of the Court, subject to payment of stamp of Rs. 5/- as enjoined by Article 12 of Schedule I of the Stamp Act. Hence, the present appeal.

(5.) Learned counsel for the appellant has assailed the award in question on the following grounds:-- (i) That the arbitrator misconducted himself during the conduct of the proceedings before him and as such the award was invalid in law. (ii) That the award not being on stamped paper was void and the Court below erred, in directing it to be made a rule of the Court. (iii) That there is an error of law apparent on the face of the award inasmuch as the arbitrator has decided the question regarding total measurement of the work done by the appellant and held that the appellant, for the earth work done from beyond a lead of 600, was entitled at the rate of Rs. 65/- per thousand cft. when the Department itself had agreed to pay at the rate of Rs. 85/- per thousand cft.

(6.) So far as the first point is concerned, learned counsel for the appellant could not point out any material on the record of the case in support of his contention. In fact, the appellant had taken this objection even before the learned Subordinate Judge. But, as will appear from paragraph 3 of the order of the learned Subordinate Judge, at the time of argument this objection was not pressed. In that view of the matter, there is no merit in this submission and it has to be rejected.

(7.) In support of the argument regarding the invalidity of: the award on account of its not being on stamped paper, reliance has been placed on Article 12, Schedule I, of the Stamp Act, 1899 (hereinafter referred to as the Stamp Act). Article 12 reads as follows:-- In view of this Article of the Stamp Act. it cannot be disputed that an award by an arbitrator, other than an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit, requires stamp duty. Admittedly, the award in the present case is not on a stamped paper and is such there is a defect in the award inasmuch as it is in contravention of the aforesaid Article 12 of the Stamp Act.

(8.) Now the questions for consideration are-- (i) what is the effect of the said defect, and (ii) whether there is any mode for rectifying the same. Learned counsel for the appellant has urged that, in absence of stamp, the award is invalid in law and as such it is liable to be set aside in view of Section 30 (c) of the Act which empowers a Court to set aside an award if it is otherwise invalid. It is true that the words otherwise invalid should not be read ejusdem generis with the other cases mentioned in Clauses (a) and (b) of Section 30 and they should be restricted to cases where the award is invalid on one or more grounds other than those mentioned in that section. But, in my opinion, only because the award is not on a stamped paper, it will not be invalid within the meaning of Section 30 of the Act. It is merely a defect in the award. In this connection a reference may be made to the case of Rikhabdass v. Ballabhdas, (AIR 1962 SC 551 [LQ/SC/1961/366] ), where their Lordships were considering the case of an award which was unstamped and unregistered. Their Lordships quoted an extract from Nani Bala v. Ram Gopal, (AIR 1945 Cal 191 saying want of registration is a defect de hors the award or the decision of the arbitrator. Their Lordships then said-- "What was said there about a want of registration is clearly equally applicable to a want of stamp." Towards the concluding portion of the judgment they stated that it was open to the parties to take such steps, if any, as were available to them at law for curing the defect arising from the award being on an unstamped paper. It was then submitted by learned counsel for the appellant that, in any case, the learned Subordinate Judge should have remitted the award to the arbitrator under Section 16 of the Act as it was on an unstamped paper. Reliance was placed in this connection on the power of the Court under Section 16 (1) (c) of the Act under which the Court can remit an award to the arbitrator where an objection to the legality of the award is apparent upon the face of it. In view of the aforesaid judgment of the Supreme Court, there is no substance in this submission of the learned counsel for the appellant. In that case, after having considered the scheme of the Arbitration Act, their Lordships negatived the said argument and observed as follows:--

"Under Section 16 of the Arbitration Act an award can be remitted to the arbitrators only for reconsideration. When it is remitted for rewriting it on a stamped paper, it is not remitted for reconsideration. Reconsideration by the arbitrators necessarily imports fresh consideration of matters already considered by them. Now they can only consider and give a decision upon matters which are referred to them under the arbitration agreement. It follows that the reconsideration can only be as to the merits of the award. They reconsider nothing when they rewrite the award on a stamped paper."

(9.) In the present case the arbitration was without the intervention of the Court and the award had been filed by the arbitrator before the Court for being made a rule of the Court. If the reference to the Arbitration is at the instance of the Court, the award automatically becomes a part of the records of the case pending in the Court and the Court can proceed to hear objections if any, filed against the said award; and after rejecting any such objection, or if no objection is riled, after the expiry of the period of limitation, can make the award a rule of the Court. But the position regarding awards given on arbitration without the intervention of the Court is entirely different. Such awards have to be brought on the records of the Court and they are bound to attract the provisions of Section 35 of the Stamp Act, which prohibits any instrument, which is chargeable with duty, from being admitted in evidence for any purpose. Section 35 of the Stamp Act reads as follows:--

"35. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped."

In view of Section 35 of the Stamp. Act, the award in question could not have been admitted in evidence as it was chargeable with duty in view of Article 12 of the Stamp Act. Section 33 of the Stamp Act prescribes the procedure of impounding an instrument which is chargeable with duty when it is filed before any authority, including a Court, and by that procedure the defect of want of stamp can be cured and rectified.

(10.) The question as to whether the Court should follow the procedure of impounding an award filed on an unstamped paper was considered in Sriniwas Rao v. Venkata Narasimha Rao AIR 1963 Andh Pra 193). Their Lordships held that the proviso (a) to Section 35 of the Stamp Act casts a duty on the Court in. all cases to admit a document on payment of penalty "subject to all just exceptions". They also made a reference to Mullas Commentary on Indian Stamp Act and took the view that that power could be exercised even in respect of an unstamped award. But, on the facts of that case, this power was not exercised because the award was not only unstamped but it was also unregistered. From a decision of the Madhya Bharat High Court in Tharpal v. Arjunsingh, (AIR 1957 Madh Bha 49), it would appear that their Lordships approved the procedure of impounding of an unstamped award. In my opinion, on the facts and, in the circumstances of the case in hand, the defect in the award can be cured by impounding it, and, after the defect is removed, it can be brought on the records of the case and made a rule of the Court.

(11.) Learned counsel for the appellant has further urged that Section 35 of the Stamp Act lays down that no such instrument "shall be acted upon", meaning thereby that in no circumstancea it can become a part of the records of the Court. In my judgment, the Court never, acts upon an award; either it rejects it as being invalid in law, or makes it a rule of the Court. In that view of the matter, it cannot be said that Section 35 of the Stamp Act imposes a permanent bar en the power of the Court to make such an award a rule of the Court, even if the defect regarding the stamp is cured by the procedure prescribed under the Stamp Act.

(12.) So far as the last contention of the learned counsel for the appellant regarding the error of law apparent on the face of the award, i.e. the arbitrator had decided the question regarding the total measurement of the work done by the appellant, instead of deciding only the rates of payment to the appellant, which alone had been referred to him. and had fixed a rate of Rs. 65/- per thousand cft., when the Department had itself agreed to pay at the rate of Rs. 85,. is concerned, learned counsel drew our attention to the claim filed by the appellant before the arbitrator, as also to the letter of the appellant to the Superintending Engineer, L.R.P. Works Circle, Purnea, dated the 27th February, 1968 (which is at page 58 of the brief) and to the letter, dated the 15th November. 1907 (which is at page 170 of the brief). It was submitted that the appellant had asked for reference to arbitration only on the question of rate, and the arbitrator should not have recorded a finding on the question of total earth work done by the appellant. A bare reference to the award will show that before the arbitrator the whole matter was examined and both parties produced materials in support of their respective contentions, and, ultimately, the arbitrator recorded his decision regarding the total earth work done by the appellant as well as the rate to which it was entitled. It has, therefore, to be presumed that the arbitrator intended to dispose of all the matters in controversy and his award would be held to be final. In this connection a reference may be made to the case of Smt. Santa Sila Devi v. Dhirendra Nath Sen, (AIR 1963 SC 1677 [LQ/SC/1963/133] ). Moreover, the learned counsel could not point out as to how the award is incorrect in fact regarding the measurement of the total work done by the appellant. In that view of the matter, in my opinion, there is no substance in this contention also.

(13.) Regarding the objection over the rate of Rs. 65/- per thousand cft. for the work done beyond a lead of 600, it should be pointed out that the arbitrator has not awarded the said rate for all the works done by the appellant. He has awarded the said rate only in respect of the removal of earth with a lift of 0 to 5 beyond the lead of 600. For the work with a lift of 5 to 10 he has awarded at the rate of Rs. 85/- per thousand cft. and for the lift between 10 and 14, he has awarded at the rate of Rs. 101/- per thousand cft. The total work done by the appellant with a lift of 0 to 5 is 37,161 cft. and the total amount calculated for that particular work is Rs. 2,415.50 paise. The difference between the payment at the rate of Rs. 65/- and at the rate of Rs. 85/- will be only of a negligible amount, as was also admitted by counsel for the appellant during the course of arguments. That being the position, the learned counsel for the appellant conceded that, even if the award be set aside on that ground, there will not be any substantial benefit to his client.

(14.) For the reasons aforesaid, no case has been made out for holding that the award, being invalid in law, has to be set aside. The appeal, accordingly. fails and is dismissed. The learned Subordinate Judge is directed to adopt the procedure of impounding the award as prescribed in Section 33 of the Stamp Act and then to proceed to make the award a rule of the Court. In the circumstances, there will be no order as to costs.