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Suit No. 18 of 1976, decided on 28th March, 1978.

Arbitration Act (X of 1940)-

-- Ss. 30 & 33-Award-Plaintiffs themselves requesting to appoint an arbitrator to adjudicate upon claims contained in their letter Objection to award, held, futile in circumstances of case.- [Award].

A Syed Zajarul Haq for Plaintiff.

Syed Haider Ali Pirzada for Defendants.

Date of hearing : 28th March, 1978,

JUDGMENT

These are objections under sections 30 and 33 of the Arbitration Act filed by Messers Pak. National Construction Company, the plaintiffs, to the award dated 27th November, 1977 given by Mr. Masood Ali Zaidi, Superintending Engineer, Pak. P. W. D., Karachi as Sole Arbitrator in a dispute between the plaintiffs and the Government of Pakistan. The brief facts giving rise to the award are as follows

2. The plaintiffs entered into a contract with the defendants bearing No. CH-2 WI/1970-71 for construction of 120 godowns for additional storage accommodation of 2.40,000 tons capacity at Pipri (S. H. Roads, Culverts and Drains). Certain dispute having arisen between the plaintiffs and the defendant with regard to the extra work carried out by the plaintiffs under the contract and the rates at which they were entitled for the work, the plaintiffs by their letter dated 3rd August, 1971 address ed to the Chief Engineer Pak. P. W. D., Karachi stating that they seek arbitration on the following specific points

S. H. 1. Road Quantity Rate Amount

1. Cutting earth to a required 43,00,000 At the 6,67,360.00

gradient in all kinds of Cft. approved

soils as at site 9 excluding rate of

rock and conglomeration Rs. 15/52

of boulders) and disposing per%

the same earth by animal Cft.

transport within 1/2 mile

lead complete as directed,

by the Engineer-in-Charge

including levelling and

dressing at the site of dis

posal complete.

2. Cutting earth to a required 6,00,000 Rs. 22 1,50,000.00

gradient in conglomera- Cft. per %

tion of boulders and dis- Cft

posal of the same by

animal transport within

1/2 mile lead complete as

directed by the Engineer

in-Charge including levell-

ing and dressing the site

of disposal complete.

3. Idle supervising staff and Lump 50,000.00

labour and detention of Sum

T & P.

The aforesaid letter has been filed by the defendant as Annexure'D' to the counter-affidavit.

3. The plaintiffs having failed to obtain the appointment of the arbitrator by the defendant approached this Court and filed an applica tion under section 20 of the Arbitrators Act for appointment of an Arbitrator. This application was registered as Suit No. 85 of 1972. Paragraphs 3 and 4 of this application state that certain disputes in respect or the rates and the extra work arose and the plaintiffs approached the defendant to appoint an arbitrator as per clause 25 of the Contract but the defendant failed and neglected to appoint an arbitrator.

4. The Court by the order dated 16th October, 1973, as stated at the bar, allowed the application and directed the Chief Engineer to appoint a Sole Arbitrator to adjudicate upon the claim-dispute amounting to, Rs. 8,67,360. This fact is mentioned in the letter dated 21st November 1973 of the Superintending Engineer, annexure D-2' to the counter affidavit. Accordingly, the parties appeared before the arbitrator and produced their evidence who after hearing the parties gave the impugned, award.

5. Mr. Syed Zafarul Haq, Advocate for the plaintiffs has raised before me the following objections to the award :-

(i) The arbitrator has acted in excess of his authority as the claims mentioned at Serial Nos. 1 and 2 in paragraph 2 were agreed upon and he had no Jurisdiction to adjudicate upon them-

(ii) The award is vague and indefinite.

6. 1 have heard Mr. Syed Zafarul Haq, Advocate for the plaintiff in support of these objections and Mr. Syed Haider Ali Pirzada, Advocate for the defendant in reply

7. After hear in both the learned counsel for the parties, I am of the opinion that bath those objections are misconceived and without any foundation. The plaintiffs themselves had requested the Chief Engineer to appoint an arbitrator to adjudicate upon the claims contained in their letter dated 3rd August, 1971, which included the claim mentioned" at Serial Nos. 1 and 2 herein before. Therefore it is now futile to object to the award, if the arbitrator has awarded only a sum of Rs. 27,735 as against their claim of Rs. 8,67,360.

8. It is pointed out by Mr. S. Haider Ali Pirzada Advocate for the defendant and agreed to by Mr. Syed Zafarul Haq, Advocate for the plaintiffs that the arbitrator has wrongly mentioned that the claim of the plaintiffs was only of Rs. 4,72,459.

9. Now, taking up the second objection that the award is vague and indefinite I find that the arbitrator in his award has said that allow and hold that plaintiffs are entitled to a sum of Rs. 27,735 in full and final settlement. Mr. Syed Zafarul Haq, Advocate for the plaintiffs has not been able to explain how this award is vague and indefinite. To me the award appears to be clear and definite. Accordingly, I hold that this objection is also misconceived. I therefore, overrule it.

10. In the consequence the objection are dismissed with no order as to costs and the award is made the rule of the court.

M. A. K. Suit dismissed.

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