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Suit No. 18 of 1959, decided on 14th October, 1959.
‑Setting aside award --Not open to Court to consider evidence of parties not set out in award.
Held, that it is not open to the Court to consider the evi dence led by the parties before the arbitrator .,not set out and discussed in the award.
The contention that the award was based on insufficient evi dence or on no evidence was devoid of merit and could not be upheld.
The Court could not review the evidence and come to a dif ferent conclusion and then set aside the order of the arbitrator.
The Court hearing the application for setting aside an award could not constitute itself into a Court of Appeal over the decision of an arbitrator and could not make a sifting investiga tion of the entire proceedings before the arbitrator unless it was first shown that the award was bad on the face of it.
An arbitration clause in substance ousts the jurisdiction of the Court except for the purpose of controlling and preventing misconduct and for regulating the procedure after the pronounce ment of the award. If the award is otherwise valid, the Courts of law cannot interfere and review it on merits and say whether it is good, bad or, indifferent.
The powers of the Court to set aside awards are confined to the provisions of section'30 of the Arbitration Act.
Ghulam Jilani v. Muhammad Hassan 29 I A 51 ; Champsey Bhara & Company v. The Jivraj Balloo Spinning and Weaving Company Ltd. A I R 1923 P C 66 ; J. Kaikobad v. F. Khambatta A I R 1930 Lah. 280 ; Messrs Overseas Colton Company v. Messrs S. M. Fazail and Company P L D 1958 Kar. 27 and P L D 1959 Kar. 320, ref.
Czarnikow v. Roth, Schmidt & Company (1922) 2 K B 478 ; Jivraj Baloo Spinning and Weaving Co., Ltd. v. Champsey Bhara & Co. I L R 44 Bom. 780 ; The‑ Firm of Saleh Muhammad Umar Dossal v. Seth Nathoomal Kassamal A I R 1927 P C 164 ; Durga Prosad Chamria and another v. Sewkishen Das Bhattar and others P L D 1949 P C 187 ; F. R. Absalom Limited v. Great Western (London) Farden Village Society Limited 1933 A C 592 and Thawardas Pherumal and another v. Uraon of India A I R 1955 S C 468 considered.
Nana Kwaku Amoah and another v. Nana Sir Ofori Atta A I it i _‑ P C 46 ; Pir Bhdlanshah Agedinoshah v. Mir Hussein Bux Khan and others A I R 1933 Sind 295 ; Messrs Bajranglal Ladurwn v. Ganesh Commercial Co. Ltd. A I R 1951 Cal. 78 ; Nijoy Singh v. Bilasroy & Co. A I R 1952 Cal. 440 and GuL;; rr .d Kaw). za crn‑i Co. v. Busi and Stephenson Ltd. A I R 1953 Cal. 6 : distinguished.
Mere error of law does not vitiate award.
A mere error of law does not vitiate the award. To set aside the award the error in law must appear on the face of it and not on the face of the record.
Court may modify award if through accidental mistake arbitrator awards a larger amount than claimed by party.
Muhammad Ali Sayed for Plaintiff.
H. B. Tayabji for Defendant.
Dates of hearing : 29th and 30th September 1959.
This is an application under section 30 of the Arbitration Act dated the 4th of April, 1959 for the setting aside of an award dated 26‑6‑1958 filed in this Court by Mr. A. H. Noon, on the 19th of November, 1958 under section 14 (2) of the said enactment.
On 30‑10‑1954 the defendants engaged the plaintiffs as con tractor for the construction of their officers quarters situated in the Preedy Quarters, Karachi. Under the terms of the agree ment of the aforesaid date the plaintiffs were responsible for the procurement of all the material required for the progress and completion of the work. The defendants only promised to help them in this regard as far as possible. It appears that there was scarcity of Iron and Steel bars in Karachi at the relevant time, and the plaintiffs approached the defendants to assist them in their procurement. The defendants sought the help of the Director General of Supply and Development and with much difficulty managed to secure the necessary quantity of iron steel bars through them. The dispute in this case is confined only to 343 tons of M. S Round Bars of various sizes delivered some time between 14‑11‑1955 and 21‑11‑1955 to the plaintiffs. The plaintiffs took delivery of these goods after depositing on 17‑8‑1955 a sum of Rs. 2,27,409, being the total approximate cost plus 2% departmental charges fixed on or about 29‑6‑55 by the Supply and Development Department.
The Department first fixed the prices of the said goods on 24‑1‑1956. These prices were revised on 21‑3‑1956 and again revised on 26‑1‑1956 (sic). On the basis of the final prices fixed by the Department, the defendants at first, in pursuance of Clause 13‑A of the agreement, deducted Rs. 70,646‑5‑0 butt the admitted case before the arbitrator was that it was later on enhanced and they deducted a total sum of Rs. 72,616‑12‑0 from the plaintiffs' running bill No. 8. The plaintiffs protested against the deduction of the said amount to the defendants and disputed their liability to pay it. This dispute was referred on 8‑3‑1958 under clause 17 of the agreement to the sole arbitration of Mr. A. H. Noon, at one time the Chief Engineer of the Pakistan P. W. D., who was nominated by the Chief Accountant of the defendant Bank as a technical man of high standard. The letter of reference is reproduced below
"We had entrusted the work relating to the construction of our officers' quarters on Preedy Street to Messrs Suleman Haji Muhammad & Co., Ibigul Rd. off Lawrence Rd., Karachi and had entered‑into an agreement with them in this regard... According to this agreement the contractors were to make their own arrangements for all the building materials required for the construction of quarters but as they were facing difficulties in the procurement of building materials they approached us for help and assistance. Among other materials we arranged to supply them steel through the Supply and Development Department. To begin with the Supply and Development Department desired that the cost of steel should be deposited at a provisional rate. Accordingly the contractors deposited the cost but when the cost was finally fixed by the Supply and Development Department by amending their rates more than once the contractors objected to it and said they were not responsible to pay the cost of steel at the rate finally fixed by the Supply and Development Department. The cost of steel at the rate finally fixed by the Supply and Development Department has, however, been deducted by us from contractors' bills and paid to the Supply and Development Department. The contractors objected to this deduction and desired that this .dispute should be referred to an arbitrator according to the agreement entered into with them. We, therefore, wish to appoint you as an arbitrator and shall be glad if you would please do the needful after hearing both the parties. We, shall as and when required supply you all the required informa tion and papers and are for the present enclosing herewith a copy of the two clauses of our agreement with the contractors relating to supply of building material and arbitration. As agreed to by you verbally you will be paid Rs. 1,200 towards your arbitration fee. An early action will be much appreciated."
The parties appeared before the arbitrator and on 8‑5‑1958 the plaintiffs submitted their written claim before him. Para. 3 of their claim puts in a nutshell their case before the arbitrator. It runs as under :‑
"The contractors are ‑not liable either in law or in equity to be mulcted with the alleged difference in price amounting to Rs. 72,616‑12‑0 or any part thereof on the ground of the alleged re‑fixation of price. The contractors acted upon the representation contained in the State Bank's letter dated 8‑7‑55 and the annexure thereto in which the price of 343 tons was specifically stated at Rs. 2,27,409 which would work out approximately to Rs. 663 per ton including departmental charges. But having regard to the attempted deduction from the contractors' bill of the sum of Rs. 72,616‑12‑0 the price per ton works out to about 875 per ton. The contractors having paid the price and taken delivery on a specified rate are not concerned with any unilateral action which might have been taken by the State Bank or by the Director General Supply and Development. If the contractors had been told that the price would be anywhere near what is sought to be refixed the contractors would never have bought and taken delivery of the stuff. In fact the contractors are in a position to prove that ruing market price of the material at the time was about the same as stated in annexure to the State Bank's letter dated 8‑7‑55 "
The matter was heard on various hearings before the arbi trator. The parties produced volumnious documents, which are contained in the files produced on the record and the arbitrator by an award dated 26‑6‑58 ordered the defendants to refund the amount of Rs. 73,915 deducted by ‑them to the plaintiffs in full. The award is reproduced below
"This is the Award of me, A. H. Noon, Arbitrator in rela tion to the matters referred to me as hereinafter appearing :
Whereas under Clause 17 of the Agreement dated 30th Octo ber, 1954 between the State Bank of Pakistan and Suleman Haji Muhammad & Co. for construction of Bank's Officers' Quarters on Preedy Street, Karachi, I was nominated by the Chief Accountant of the State Bank of Pakistan, vide his letter No. E. D. 548/419‑58, dated 8‑3‑1958 to arbitrate in a dispute between the above two parties relating to the procure ment and price of steel obtained through the Department of Supply and Development, Government of Pakistan, Karachi ; and having heard and examined the submissions and evidence of the said parties and having considered the whole matter in dispute I make my Award as follows :‑
(1) The deduction of Rs. 73,915 (Rupees seventy three thousand, nine hundred and fifteen only) made by the State Bank of Pakistan from Messrs Suleman Haji Muhammad & Co., should be refunded to them in full.
(2) The parties shall bear their own costs of this reference.
(3) The cost of stamping of this Award is Rs. 48 which shall be shared equally by both the parties."
The defendants have attacked this award on three‑fold grounds. Firstly, that the award is without jurisdiction, illegal and wholly invalid. Secondly, that the arbitrator has awarded a larger amount to the plaintiffs than was claimed by them. And thirdly, that the award is on the face of the record errone ous, being entirely contrary to the evidence on the record and wholly incapable of being supported on the evidence recorded before the arbitrator. Mr. Tyabji, the learned counsel for the defendants, however, urged only the following points before me.
(i) That it is patent on the face of the record that there was no evidence at all on which the arbitrator could come to the conclusion arrived at by him.
(ii) That the claim was based on the terms of the contract and the liability imposed by the arbitrator cannot possibly be said to have been provided under it.
(iii) That the liability was not on the bank but on the con tractor to pay the price of the steel fixed by the Supply & Development Department.
Before dealing with the contentions raised before me I would like to make it clear that the powers of the Court to set aside awards are confined to the provisions of section 30 of the Arbitration Act. The grounds on which the award can be set aside are (a) where an arbitrator has misconducted himself or the proceedings ; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under sec tion 35 ; and (c) that the award has been improperly procured or is otherwise invalid. Mr. Tyabji on the authority of Czarnikow v. Roth, Schmidt and Company ((1922) 2 K B 478), impressed upon me that it is the duty of the Court
"to prevent and redress any injustice on the part of the arbitrator, and to secure that the law that is administered by an arbitrator is in substance the law of the land and not some home‑made law of the particular arbitrator or the par ticular Association."
But these observations are relevant only if, the arbitrator has gone outside the limit of law and not otherwise. The observations of the learned Judges in that case are entirely in a different con text. In England at the relevant time the tendency of the com mercial bodies was to oust the jurisdiction of the Courts of law. One such agreement was before the Court of Appeal, which was found to be against public policy and invalid. It was only in that connection that Scrutton, L. J. observed that :
"there must be no Alsatia in England where the Courts' writ does not run."
But in the present case I am not faced with any such situation and these remarks have no relevancy for the consideration of the pre sent dispute.
It appears to me that an arbitration clause in substance ousts the jurisdiction of the Court except for the purpose of controlling and preventing misconduct and for regulating the procedure after the pronouncement of the award. If the award is other wise valid, the Courts of law cannot interfere and review it on merits and say whether it is good, bad or indifferent. Their Lordships of the Privy Council have repeatedly emphasised this point. Lord Macnaghtan in Ghulam Jilani v. Muhammad Hassan (291 A 51) at page 60 observed :‑
"They may have erred in law ; but arbitrators may be judges of law as well as judges of fact, and an error in law cer tainly does not vitiate an award."
In Champsey Bhara Company v. The Jivraj Balloo Spinning and Weaving Company Ltd. (AIR 1923 PC 66) their Lordships observed at page 68 :‑
"The law on the subject has never been more clearly stated than by Williams, J., in the case of Hodgkinson v. Fernie, (3 C B N S 189). The law has for many years been settled, and remains so at this day that, where a cause or matters in difference are referred to an arbitrator a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of facts . . . . The only exceptions 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., here the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as established "
This view has been adhered to in many subsequent cases by their Lordships of the Privy Council and has also been accept ed as correct exposition of law by the House of Lords.
It will thus be observed that the mere error of law does not vitiate the award. To set aside the award the error in law must appear on the face of it and not on the face of the record.
Mr. Tyabji, however, drew my attention to a case decided by the Bombay High Court reported in Jivraj Baloo Spinning and Weaving Co., Ltd. v. Champsey Bhara & Co. (I L R 44 Bom. 780) to show that the Courts of law can travel outside the award to trace the error of law. But this case was over‑ruled by their Lordships of the Privy Council as bad. In A I R 1923 P C 66 their Lordships observed at page 69 as under :‑
"Now the regret expressed by Williams, J., in Hodgkinson v. Fernie 3 C B N S 189, has been repeated by more than one learned Judge, and it is certainly not to be desired that the exception should be in any way extended. 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 note 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. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound. Here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made. The only way that the learned Judges have arrived at finding what the mistake was is by saying in as much as the Arbitrators awarded so and so, and inasmuch as the letter shows that the buyer rejected the cotton, the arbitrators can only have arrived at that result by totally misinterpreting Clause 52'. But they were entitled to give their own interpretation to Clause 52 or any other article and the award will stand unless, on the face of it they have tried themselves down to some special legal proposition which then, when examined, appears to be sound. Upon this point, therefore, their Lordships think that the judgment of Pratt, J., was right and the conclusion of the learned Judges of the Court of Appeal erroneous."
Although Mr. Tyabji did not cite any other authority but I have considered the case law on the subject. These principles were re‑affirmed in The Firm of Saleh Muhammad Umer Dossal v. Seth Nathoomal Kassamal (A I R 1927 PC 164) and Durga Prosad Chamria and another v. Sewkishen Das Bhattar and others (A I R 1949 P C 334=P L D 1949 P C 187). I came across two cases reported in F. R. Absalom Limited v. Great Western (London) Farden Village Society, Limited (1933 A C 592) and Thawardas Pherumal and another v. Union of India (AIR 1955 S C 468) which deal with building contracts, but they are also against him. In both the cases the arbitrators specifically founded their decisions on the interpretation of certain clauses in the agreement and the award was set aside because their interpretation was erroneous in law.
I have reproduced in the earlier part of the judg ment the award. It clearly shows that the arbitrator has not given any reason and has not referred to any documents in arriving at his conclusion and there is nothing in the award itself which can lead me to the conclusion that he has‑ committed an error of law on any question involved in the mater unless of course I start speculating as was done in the Bombay case, which with respect I am not permitted in law to do, to arrive at such a conclusion.
But it was urged by Mr. Tyabji that to find out whether the conclusions arrived at by an arbitrator are supported by any evidence or not, these principles will not apply. In support of his contention he placed reliance on Nana Kwaku Amoah and another v. Nana Sir Ofori Atta (A I R 1933 P C 46), Pir Bhalanshah Agedinoshah v. Mir Hussein Bux Khan and others (A I R 1933 Sind 295), Messrs Bajranglal Laduram v. Ganesh Commercial Co. Ltd. (A I R 1951 Cal. 78) and Nijoy Singh v. Bilasroy & Co. (A I R 1952 Cal. 440). I will first consider A I R 1933 P C 46. In that case a question was raised that there was insufficient legal evidence to enable the arbitrator to find the custom which he had found, and their Lordships of the Privy Council observ ed as under at page 48 of the report
"The second and third points made may be taken together. The second point was that there was no sufficient legal evidence to enable the arbitrator to find the custom which he has found. The third point was that even if there was a custom, there was no evidence upon which the arbitrator could find that it extended to the proceeds of sale of lands. Their Lordships' attention has been directed to the relevant parts of the Record upon this part of the case, and the evidence is set out at great length in the award. The question must depend upon the evidence as set out in the award. The appellants must show that it is patent upon the face of the award that there was no evidence at all on which the arbitra tor could have come to his conclusion. In approaching this question regard must be had to the terms of the submission in relation to evidence to which their Lordships have already called attention. Their Lordships are satisfied that there was ample evidence to enable the learned arbitrator to come to the conclusion that there was a custom for payment of one third of whatever came out of the land."
It will be noticed that their Lordships observed in unequivo cal terms that the question must depend upon the evidence as set out in the award and the appellant must show that it is patent upon the face of the award that there was no evidence at all on which the arbitrator could have come to this conclusion. I don't find any force in the contention of the learned counsel for the defendants that the observation of their Lordships that "In approaching these questions regard must be had to the terms of the submission in relation to evidence to which their Lord ships have already called attention", permits me to refer the evidence on the record. I am afraid it does not lead to any such conclusion. It only means that in appreciating the evi dence set out in the award regard will be had to the terms of the submission (A I R 1933 Sind 295, A I R 1951 Cal. 78 and A I R 1952 Cal. 440) are also distinguishable. In A I R 1933 Sind 295 the arbitrator awarded costs in the sum of Rs. 2,000 and it was held by the learned Judges of the Sind Judicial Commissioner's Court that none of the parties had claimed special costs and in awarding such heavy costs the arbitrator travelled outside his jurisdiction and set aside the award. Nobody can quarrel with this proposition of law. In A I R 1951 Cal. 78 the arbitrations awarded damages on the basis of black‑market price. It does not appear from the record whether the arbitrators referred this fact in the award itself but in any case if the arbitrators have awarded damages on a basis which is not per missible under the law of the land, I do not think such award can be upheld. However, a reference to the decision of Chatterji, J., clearly shows that it was a case in which the arbitrators awarded damages on the basis of an extension of the due date for the performance of the contract without any evi dence before them. This is not the situation in the case under consideration. In A I R 1952 Cal. 440 the arbitrators stated in the award that on the dates on which the breach was commit ted there was no free market available and the first free market was opened thereafter, and awarded damages on that basis. The learned Judges of the Calcutta High Court held
"Where the arbitrators come to a finding without evidence it must be held that they have misconducted the proceedings."
The principles laid down in these two cases are not applicable to the facts of the present case and I do not think they are, of any assistance to the case put forward by the defendants.
The learned counsel for the plaintiffs has drawn my attention to Gulzarilal Kanoria and Co. v. Busi and Stephenson Ltd. (A I R 1953 Cal. 621) a single Judge judgment of the Calcutta High Court. The learned Judge has dealt with a similar question at great length and observed
"The second answer is that the award of the Arbitrators on the face of it does not show the basis on which the damage is given. It is quite true that some idea could be obtained from the proceedings before the Arbitrators. But in an application to set aside an award, this Court does not make a sifting investigation of the entire proceedings before the Arbitrators. Before that can be done, the award must be shown to be bad on the face of it. The award itself in this case does not show the grounds on the basis of which the damage was given. Here, again, Mr. Sethia has relied on the case of the Court of Appeal in A I R 1952 Cal. 440. But then the point was entirely different in that case. There the Arbitrators in the award itself gave the ground about the availability of the market and goods on the contract date and came to a conclusion regarding the availability of markets on a particular date. This will be found at page 441 of the report. Entirely different considerations apply in the case of an award such as the one before me. No ground here is given on the face of the award and it is not possible to fathom the processes of reasoning by which the Arbitrators came to the conclusion in awarding a particular sum as damage.
In order to get rid of the rigour of the law on the subject, Mr. Sethia naturally referred to the fact that the contract and the claim made, have been referred to in the opening prefatory words of the award. He contended that because the contract and the claim were referred to they bad become part of the award itself. I am entirely unable to assent to that argument. Here, again, there is too much of confusion of thought. The law is, quite clear and all the pronouncements of the Judicial Committee of the Privy Council on this point will be found collected by me in my judgment at page 234 of A I R 1951 Cal. 230 in the case of Ebrahim Kochinwala v. Northern Oil Industries Ltd. In Champsey Bhara & Co. v. Jivraj Balloo Spinning & Weaving Co. Ltd., A I R 1923 P C 66 as well as in Salleh Muhammad Umar Dossal v. Nathoomal Kessamal A I R 1927 P C 164 and in Durga Prosad v. Sew Kishen Das A I R 1949 P C 334=P. L D 1949 P C 187 the law has been very clearly laid down, and this refer ence to the contract or to the claim of the buyers does not make them part of the award itself."
On consideration of the case law on the subject it is very clear that the Court hearing the application for setting aside an award cannot constitute itself into a Court of Appeal over the decision of an arbitrator and cannot make a sifting investigation of the entire proceedings before the arbitrator unless it is first shown that the award is bad on the face of it. I have already cited the view of their Lordships of the Privy Council that arbitrators are both judges of law and facts and in my view once the matter is found to be within the jurisdiction of the arbitrators, it is not permissible for Courts of law to find out whether their decision is right or wrong on the facts urged before them by travelling outside the award for finding out what evidence was led before them and whether their conclusions are based on suffcient evidence. I am fortified in my view by a decision of the Lahore High Court reported in J. Kaikobad v. F. Khambatta (A I R 1930 Lah. 280). In that case also it was urged that the finding of the arbitrator was based on insufficient evidence, but the Division Bench observed
"An arbitrator is fully justified in rejecting in part the case set up by either party and ascertaining the real facts according to his own view of the evidence. A counsel is not entitled to attack the findings of facts given by the arbitrator on the evidence led by the parties. Whether his conclusions are right or wrong is not a matter which is open for consideration by the trial Court or the Appellate Court on revision."
This view is in accord with the view taken by this Court in Messrs Overseas Cotton Company v. Messrs S. M. Fazail & Company (P L D 1958 Kar. 27) approved on appeal by a Division Bench of this Court in P L D 1959 Kar. 320. 1 therefore do not find any force in the contention raised by the learned counsel for the defendants and hold that in law it is not open to this Court to consider1 the evidence led by the parties before the arbitrator not set out and discussed in the award.
Assuming for the sake of argument that it is permissible to do so, I have gone through the various documents produced by the parties and in my opinion there was sufficient material on the record before the learned arbitrator to decide the question whether the defendants were justified in deducting the amount in dispute from the bill of the plaintiffs. In the earlier part of the judgment I have shown the case of the plaintiffs before the arbitrator. According to them the price fixed by the Supply and Development Department was much above the market price prevalent at the time the goods' were supplied to them. The plaintiff's led evidence on this point and produced documents to prove the market price. There was thus material before the arbitrator to decide the question one way or the other. The question whether the decision of the arbitrator is correct or not is entirely a different question and I don't think that it lies within the jurisdiction of this Court to review the evidence and to come to a different conclusion and then set aside the order of the C learned arbitrator. I am therefore of the view that the contention of the learned counsel for the defendants that the award is based on insufficient evidence or on no evidence is devoid of merit and cannot be upheld.
It was also urged on behalf of the defendants that on the terms of the contract the arbitrator could not fix the responsi bility of the amounts paid on behalf of the plaintiffs, on the defendants. But no such order has been passed by the arbitrator. The dispute between the parties was whether the extra amount paid by the defendant to the Supply and Development was rightly deducted from the bill of the plaintiffs. This dispute was referred to the arbitrator nominated by the Chief Accountant of the defendant bank. The arbitration clause reproduced below fully empowered the arbitrator to interpret the terms of the contract and to finally decide the dispute between the parties
"Except where otherwise provided in the contract all questions and disputes relating to or arising from this contract including the interpretation of this agreement shall be referred to a technical man of high standing to be nominated by the Chief Accountant of the State Bank of Pakistan for arbitration in the manner provided by law relating to arbitration for the time being in force who after such investigation as he may think proper shall deliver his award which shall be final, conclusive and binding on all parties to this contract."
The learned counsel for the defendants referred me to clause 13‑A of the agreement to show that the defendants were entitled to deduct the amount due to them from the bills submitted by the plaintiffs. It is absolutely correct but the plaintiffs disputed the deduction of the amount in question. The parties referred this dispute to the arbitrator who, in effect, decided that this amount was not rightly deducted under the circumstances.
Lastly, it was urged by the learned counsel for the defendants that the plaintiffs' claim before the arbitrator was in the sum of Rs. 72,616‑12‑0 and the arbitrator in awarding him a sum of Rs. 73,915 has committed an error and the award should be set aside on this ground. It was admitted by the learned counsel for the plaintiffs that their claim before the arbitrator was only to the extent of Rs: 72,616‑12‑0. In my opinion the arbitrator in awarding a sum of Rs. 73,915 has committed an accidental error. Some of the documents produced by the parties show that the defendants claimed a deduction of Rs. 73,915 and it appears that on the basis of these documents the arbitrator was under an impression that the defendants had deducted the amount of Rs. 73,915 and ordered them to refund this amount.
This, however, is a mistake which can be sufficiently rectified by me under section 15 of the Arbitration Act. I do not think it will serve any useful purpose to remit the case to the arbitrator for this purpose. I will therefore modify the award to the extent of the claim of the plaintiffs and order that the figure of Rs. 73,915 will be substituted by Rs. 72,616‑12‑0. On this view of the matter, I L R 52 Bom. 116, the case cited by the learned counsel for the defendants is not of much assistance.
After careful consideration of the matter I am of the opinion that the objections raised by the defendants have no force and there is no legal ground on which the award in question can be set aside. Accordingly the objections filed by them are dis missed.
For the reasons given above I will make the award a rule, of the Court and pass a decree in terms of the award. The defendants will bear the costs of these proceedings.
A. H.
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