Jaspal Singh
(1) [ED, facts : In arbitration between parties, Mr. V.S. Deshpande retired C.J., Delhi gave an interim award on 15.1290. Respdt. challenged it on the ground that it was given without considering his counter claims and also the arbitrator wrongly thought disputed points to be admissions. Petitioner relied upon K.V. George vs. Secy. AIR. 1990. SC. 53]. After detailing above. Judgment is : (7b) In K.V. George case observations are :
"ITis not disputed that the Arbitrator did not at all consider the counter-claims the arbitrator did not at all consider the counter claims of the respondent in making the award. It is the duty of the Arbitrator while considering the claims of the appellant to consider also the counter-claims made on behalf of the respondents and to make the award after considering both the claims and counter claims. This has not been done......"
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(2) WHAT do we find from the observations extracted above ? It is that where there are claims and counter-claims, court (?) must make the award only after considering the claims and the counter-claims and that if the court (?) makes award without considering at all the counter-claims, such an award would be wholly illegal. It is significant to note that the Supreme Court has no where laid down that where there are claims and counter-claims no interim award can
(3) WHAT do we mean, in the context of the case, by the word "consider" ? Obviously, the word "consider" cannot mean "to finally decide," because, if the arbitrator is required to finally decide and adjudicate upon both the claims as well as the counter-claims then the award passed after such adjudication would not be an interim award. Thus, once it is accepted that there can be an interim award even where there are both claims and counter claims, then it has to be taken that at the stage of such an interim award both the claims and counter-claims are not finally decided and determined in their totality and that some claims or counter (?) are left out to be decided or adjudicated upon at a later stage. After all, the very expression "interim award" implies an award which decides a part of the claim or counter-claim or an issue of liability. Thus, if the word "consider" cannot, in the context of the case, be taken to mean "to finally decide". What does it then signify ?
(4) ACCORDING to Shorter Oxford Dictionary the meaning of the word "consider" is "to view attentively, to survey, examine, inspect (arch), to look attentively, to think over, meditate on, give need to, to take note of, to think deliberately, to think oneself, to reflect".
(5) ACCORDING to Words and Phrases- Permanent Edn. Vol. 8-A, to "consider" means to think with care, to fix a mind upon with a view to careful examination, to ponder ; study ; meditate upon, think or reflect with care.
(6) BLACK'S Law Dictionary defines "consider" to mean. To fix the mind on, with a view to carefully examine to inspect. To deliberate about and ponder over. To entertain or give heed to.
(7) AS per Webster's New International Dictionary "consider" means to view attentively, to fix the mind on ; to think on with care ; to ponder ; to study ; to meditate on ; also, to bear in mind ; to estimate ; calculate.
(8) IN Barium Chemicals vs. A.J. Rana, AIR 1972 S.C. 591, the Supreme Court referred to, with approval, the meaning assigned to the word "consider" in the Shorter Oxford Dictionary and in Words and Phrases-Permanent Edn. Vol. 8-A and as reproduced by me above
(9) KEEPING in view the ambit and scope of the word "consider" can it be said that both the claims and the counter-claims were considered by the learned arbitrator before the passing of the interim award ? The answer, to my mind, must be in the affirmative. Let me, in support refer to the interim award. The latter part of the second paragraph is significant and reads as under :
"THEdecisions of the claims and counter claims which are contested will take some time. In the meanwhile, this interim award is given only in respect of those amounts of claims and counter-claims which are admitted by the parties."
The interim award then proceeds to deal with clause 7.1 of the Contract and then, after referring to the first counter-claim with regard to refund of some advances, holds that since this first counter-claim is admitted, the claimant is to pay the amount and so also interest from August 1,1991. At page 6 again reference is made to one of the counter-claims amounting to Rs. 213404.15 and the same has been allowed on the basis of the admission made by the claimant. One finds reference to the counter-claims again at page 8. At page 9 also the counter-claims are taken note of and so also their effect on the payment of admitted amounts. In this respect reference may also be made to page 11 where the question as to whether the amounts admitted as payable should be withheld or not till the decision of the disputed counter-claims is considered. It cannot thus be said that the learned arbitrator has not considered at all the counter-claims. It is this which distinguishes this case from the case before the Supreme Court and, as the counter-claims cannot be said to have not been considered at all, the interim award cannot be dubbed as illegal.
(10) IT was argued by Mr. Dutta that the learned arbitrator had not appreciated the evidence on the record in the right perspective and as such has arrived at wrong conclusions. However, appraisement of evidence by the arbitrator is never a matter which the court questions and considers. The arbitrator is the sole judge of the quality as well as the quantity of the 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. [See Hindustan Steel Ltd. vs. C. Rajasekhar Rao (1987) 4 SCC 93; M.C.D. vs. Jagannalh 1987(4) SCC. 497 (AIR 1987 SC 2316) ; Mis. Alppi Parshad & Sons vs. U.O.I. AIR 1960 SC 588]. The Court is entitled to set aside the award if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the court superseding the arbitration or after arbitration proceedings have become invalid u/S. 35 or where an award has been improperly procured or is otherwise invalid under section 30. It is not misconduct on the part of an arbitrator to come to an erroneous decision. [See Halsebury's Laws of England Vol., 2, 4th Edn.; Russell on Arbitration, page 422, 20th Edn. Food Corp. vs. Joginderpal AIR 1989. SC. 1263 ; Mis. Sudar 1992. Rajdhani Law Reporter 379, 380 san Trading Co. vs. Govt. of Kerala, AIR 1989 SC 890].
(11) THE legal position being as noticed above, I do not think it is open to me, in the context of this case at least, to go into the correctness or otherwise of the finding of the learned arbitrator on the admissions relied upon by him or to probe into the question as to whether those admissions were conditional or unconditional. Similarly, it would not be within my domain to consider as to whether the finding with regard to the submission of the Final Bill is in the light on the evidence on the record, justified or not. I feel similarly on the challenge to the finding on the question of recoveries claimed.
(12) IN any case, the perusal of the interim award would go to show that the learned arbitrator has gone into the questions raised analytically and critically and has, to borrow the expression from the Supreme Court, come "to his finding after giving cogent reasons" (See Goa, Daman & Diu Housing Board vs. Ramakant AIR 1991 SC 2089=1991 Raj LR (N) 110. This being the position, the second limb of the challenge to the interim award also fails.
(13) THE learned arbitrator has taken sufficient precautions to safeguard the interest of the counter claimant. This would be borne out from his discussion under sub-head 'Security' and from the "Operative Part of The Interim Award" with regard to the furnishing of security. Finding no merit in the objections raised, the Interim Award is made the rule of the court and decree is passed in terms thereof.