(1.) For raising construction of. A. T. Sheds and allied accommodation at Uri, a contract was allotted in favour of the petitioner -firm and a contract agreement bearing No. CESZ-12 of 1984, was entered into between the President of India through Chief Engineer Srinagar Zone and the petitioner, M/s. Surjit Singh and Sons on 28-4-1984. The date of commencement and date of completion of the work as per contract agreement was 9-4-1984 and 8-4-1986 respectively. The petitioner, however, could not complete the work within the stipulated time. The respondent at his request granted extensions and after availing extensions the contract work came to be completed on 10-5-1988. Certain disputes arose between the parties. There being an arbitration clause in the agreement, Shri Vidaya Bhushan, Chief Engineer, was appointed as Sole Arbitrator for adjudicating upon the disputes. The Arbitrator published his award on 12-3-1996 and filed the same in the court for making the same rule of the Court.

(2.) Notice u/S. 14(2) of the Arbitration Act was issued to the parties. Petitioner-firm has not challenged the award and as such (Contd. on Col. 2) Claim No. Brief description of the claim Claimed Award Rs. 1. Reimbursement of damages suffered on account of various breaches of 6,51,000.00 2,07,000.00 contract (claim partly sustained) 2. Forcing claimant to rectify such defects which were caused due to misuse of 55,400.00 42,000.00 buildings forcibly occupied by troops during op-alert 3. Shifting the site for SM barracks 26,200.00 5,000.00 4. Non-payment of final bill for the past about 4 years. 3,52,000.00 1,26,000.00 5. Payment of interest 24% Not adjudicated 6. Cost of reference 20,000.00 Nil. prayed it to be made rule of the Court. However, respondents-Union of India and others have challenged the award by making an application u/S.30/33 A. A.

(3.) From the pleadings of the parties, following issue has been framed :- "Whether the arbitrator has misconducted himself, if so how and what is its effect"

(4.) After framing the said issue, Union of India respondent was called upon to file evidence in the nature of affidavits. The petitioner was to file his affidavits by way of evidence thereafter. No affidavits have been filed by Union of India; however, an affidavit has been filed by the petitioner. In the affidavit the grounds alleged by the respondents for challenging the award in their application u/S. 30/33 A. A. have been opposed and replied.

(5.) I have heard the learned counsel for the parties and perused the record. The Arbitrator has passed the award in favour of the contractor in the following terms :- (See Table below)

(6.) From the bare perusal of the award it is manifest that the award is non-speaking award. The arbitrator while awarding partly claim No. 1 has granted Rs.2,07,000.00 in favour of the contractor on account of reimbursement of damages suffered on account of various breaches of contract. The arbitrator has not specified in the award as to which of the clauses of the contract have been breached by the respondent Union of India. The challenge has been thrown to the award by Union of India in respect of claim No. 1 alone. Mrs. Goswami, learned counsel for respondent-Union of India has submitted that the main reason for filing the claim by the contractor is the prolongation of the contract period; that the date of commencement and completion of the work under the contract was 9-4-1984 and 8-4-1986 respectively but the contractor completed the work on 10-5-1988. The delay, however, caused in completion of the work was taken care of by Union of India by granting extension of time when requested under condition 11 A and B of IAFW 2294 of the contract agreement. It has been submitted by Mrs. Goswami that the arbitrator has misconducted himself and the proceedings by violating the express conditions of the contract. Under condition 11-C of the contract agreement no claim in respect of compensation or otherwise arising out of the extensions granted under conditions 11 A and B could be admitted. Therefore, the arbitrator while allowing the claim of the contractor in respect of the delay caused has travelled beyond the terms of the contract agreement and has passed the award in violation of the express conditions of the agreement and therefore has committed error and the award, as such, deserves to be set aside.

(7.) In view of the objection raised to the award by the objector-Union of India, the necessary question which falls for determination is as to whether this Court can examine the terms of the contract agreement to find out as to whether the arbitrator has travelled beyond the scope of the contract agreement Learned counsel for the petitioner has argued that, as the award is non- speaking award, the Court is not empowered under Section 30/33 A. A., to go into the terms of the contract and the record of the arbitration to find out what was the basis on which the arbitrator had made his award. According to him the Court cannot analyze the mental process of the arbitrator, which impelled him to make the award in favour of a particular party. In support of his contention he has relied upon a case titled M/s. Sudarsan Trading Co. v. Govt. of Kerala, AIR 1989 SC 890 in which Their Lordships held as follows :- (Para 29) "It is not open to the Court to probe the mental process of the arbittor and speculate, where no reasons are given by the arbitrator as to what impelled the arbitrator to arrive at his conclusion. In the instant case the arbitrator has merely set out the claims and given the history of the claims and then awarded certain amount. He has not spoken his mind indicating why he has done what he has done; he has narrated only how he came to make the award. In absence of any reasons for making the award, it is not open to the Court to interfere with the award. Furthermore, in any event reasonableness of the reasons given by the arbitrator cannot be challenged. Appraisement of evidence by the arbitrator is never a matter, which the Court questions and considers. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the Court to take upon itself the task of being a judge on the evidence before the arbitrator."

(8) . Their Lordships have further held :- "Once there is no dispute as to the con- tract, what is the interpretation of that contract, is a matter for the arbitrator and on which Court cannot substitute its own decision. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the Court. Therefore, the High Court had no jurisdiction to examine the different items awarded clause by clause by the arbitrator and to hold that under the contract these were not sustainable in the facts found by the arbitrator."

(9) Mr. Gupta learned counsel for the contractor has also relied upon AIR 1987 SC 2045 in which the Apex Court has held as follows :-

"An award can only be set aside where there is an error on its face. Further it is an error of law and not mistake of fact committed by the arbitrator, which is justiciable In, the application before the Court. It is an error of law and not mistake of fact committed by the arbitrator which is amenable to corrections by the Court."

(10) . On the strength of these authorities Mr. Gupta has argued that in the present case the arbitrator has not spelt out in his award as to which were the clauses of the contract in his view, which stood breached. He has not given any reason in the award to show as to what impelled him to take the decision that these unspelt out breaches had caused damage to the contractor, which should be compensated by Union of India. The arbitrator has interpreted the contract. The interpretation given by the arbitrator is not open to the scrutiny of this Court. He submits that the Court cannot go into various terms of the contract so as to scrutinize and re-judge the reasonableness of the conclusions drawn by the arbitrator.

(11) Per contra Mrs. Neeru Goswami has argued that even if the award is non-speaking the Court can examine the terms of the contract so as to find out as to whether the arbitrator has travelled beyond the scope of the agreement. In support of her contention she has relied upon the following au- thorities :- 1999 (4) Supreme 12 : (AIR 1999 SC 1409 } (V. G. George v. Indian Rare Earths Ltd.) in which Their Lordships of the Apex Court have held as follows :- (Para 11 of AIR) "Law is well-settled that If the award is non-speaking the Court can look into the question as to whether arbitrator has travelled beyond the scope of the contract as he derives his jurisdiction from the contract and if the arbitrator exceeds his jurisdiction the award can be set aside. An award can also be set aside in case of misconduct apparent on the face of the award. It can also be interfered with if the arbitrator has given reasons for the award disclosing an error apparent on the face of it."

1999 (3) Supreme 317 : (AIR 1999 SC 2262 ) (Grid Corporation of Orissa v. Balasore Technical School), wherein Their Lordships held as under :- (Para 3 of AIR) "Except in cases of jurisdictioiial errors it is not open to the Court to interfere with an award. However, when an award is made plainly contrary to the terms of the contract not by misinterpretation but which are plainly contrary to the terms of the contract would certainly lead to an inference that there is an error apparent the award results in jurisdictional error in the award. In such a case the Courts can certainly interfere with the award made by the arbitrator." 1999 (8) Supreme 319 : (AIR 1999 SC 3275 ) (Steel Authority of India v. J. C. Budharaja). Their Lordships of the Apex Court in this judgment have held as follows :- (Para 16 and 17 of AIR) "The Arbitration Act does not give any power to the arbitrator to act arbitrarily or capriciously. His existence depends upon the agreement and his function is to act within the limits of the said agreement. To find out whether the arbitrator has travelled beyond his jurisdiction and acted beyond the terms of the agreement between the parties, the agreement is required to be looked into. It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However in case where there is no question of interpretation of any terms of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards theamount despite the prohibition in the agreement, the award would be arbitrary, capri cious and without jurisdiction. Whether the arbitrator has acted beyond the terms of the contract or has travelled beyond his jurisdiction would depend upon facts, which however would be jurisdictioiial facts and are required to be gone into by the Court. Arbitrator may have jurisdiction to entertain claim and yet he may not have jurisdiction to pass award for particular items in view of the prohibition contained in the contract and, in such cases, it would be a jurisdictional error. For this limited purpose reference to the terms of the contract is a must."

(12) I have considered the respective contentions made at the bar.

(13) . The Arbitrator is the sole Judge of the parties. His decision is binding upon the parties. He has given a non-speaking award i.e. he has not disclosed his reasons for making his decision. The agreement does not require him to disclose such reasons in the award. He has not spelled out the clauses of the agreement which were breached. In order to find out which clauses of the agreement were in the mind of the arbitrator analysis of the mental process of the arbitrator is required. Law is well-settled that Court is not empowered to make such exercise. The claim No. 1 of the contractor before the Arbitrator was "reimbursement of damages suffered on account of various breaches of contract by respondent such as abnormal delay in carrying out bearing capacity of soil, delay in handing over site, delay in issue of Sch. B stores, delay in ordering exact quantities required against such. A Sections II to VIII and provisional sum, stoppage of all work due to opalert(sic) etc. resulting into prolongation of contract period to more than double the original contract period."

(14) The contention of learned counsel for the objector/Union of India is that sub- clause {c) of clause 11 of the general conditions of contract expressly barred the granting of compensation on account of delay in the specified conditions, but the Arbitrator has ignored the clause and as such committed the error in awarding the claim.

(15) . I have gone through the said clause. It transpires therefrom that all the claims made in claim No. 1 by the contractor are not covered by the said clause apparently. The clause reads :-

"11. Time, delay and extension- (A) Time is of the essence of the contract and is specified in the contract document or in each individual work order. As soon as possible after the contract is. let or any substantial work order is placed and before work under it is begun, the G. E. and the contractor shall agree upon a time and progress chart. The chart shall be prepared in direct relation to the time stated in the contract document or the work order for completion of the individual items thereof and/or the contract or work order as a whole. It shall indicate the forecast of the dates for commencement and completion of the various trade process or sections of the work and shall be amended as may be required by the agreement between the G. E. and the contractor within the limitation of time imposed in the contract document or work order. (B) If the work is delay (a) by reason of non-availability of Government stores mentioned in schedule B or (b) by reason of nonavailability or breakdown of Govt. tools and plant mentioned in schedule "C"; (C) No claim in respect of compensation or otherwise, however arising, as a result of extensions granted under conditions (A) and (B) above shall be admitted."

(16) As the Arbitrator has made the non- speaking award, it is not clear as to which particular breach of the contract was in the mind of the arbitrator. Therefore, the challenge thrown to the award by the respondent operator cannot be accepted. The issue No. 1 is therefore decided against the objector. the award is made rule of the Court. A decree be drawn in terms of the award. The claimant shall also be entitled to interest pendente lite at the rate of 6% P. A. Disposed of accordingly. Ordered accordingly.