Permod Kohli, J.:— This appeal under Section 39 of J&K Arbitration Act, 2002 is directed against order dated 23.12.2002 passed by learned District Judge, Jammu, in case titled “Des Raj Nagpal v. Union of India”, whereby the award dated 23.12.1998 passed by the sole arbitrator has been made rule of the court.

2. Before I dwell upon the grounds of challenge in the award, it is deemed necessary to give resume of the facts. The respondent-contractor executed certain works on behalf of appellants for which a Contract Agreement bearing no. CWE/JP-23/85-86 came to be executed between the parties on 19.06.1985 The period for execution of work was from 02.07.1985 to 01.04.1986 The work was however completed on 16.04.1992 Certain disputes arose between the parties for which some arbitration proceedings were initiated. The present arbitration proceedings commenced by the respondent-contractor which culminated in passing of the award dated 23.12.1998, wherein certain claims of the contractor were allowed by the arbitrator with interest for the pre-reference period, pendente lite and future. This award became subject-matter of proceedings under Section 30/33 of J&K Arbitration Act before the District Judge, Jammu in AA No. 6/1999. After inviting objections from the parties in respect to the award, the learned District Judge framed the following issues:

(i) Whether objections to the award are time-barred, if so, what is its effect thereof? OPP

(ii) Whether the arbitrator has misconducted himself and the proceedings, if so, in what manner? OPP

(iii) Whether award is liable to be set aside? OPP

(iv) Relief.

3. On consideration of the issues, learned District Judge upheld the award and made it rule of the court vide impugned judgment dated 23.12.2002 and consequential decree in terms of the award has been passed. Appellant-Union of India has assailed the impugned judgment of District Judge, Jammu primarily on the following four grounds:

(i) That the decree and order of District Judge is against law and facts.

(ii) That the arbitrator was required to pass a reasoned award in terms of Condition 70 of the Contract Agreement, i.e IAFW-2249, and the award being non-speaking is liable to be set aside as it constitutes legal misconduct.

(iii) That the arbitrator was not competent to award interest as the same was not provided under any condition of the contract.

(iv) That the award is malicious and based on error apparent on record.

4. I have heard learned counsel for the parties and perused the judgment impugned in the appeal.

5. Mr. Nanda has not been able to show anything from record as to how the judgment of learned District Judge is against facts and law. In proceedings under Section 30/33 also the main contention of the appellant was that the award is not based on any evidence. Learned District Judge has specifically dealt with this question and returned a finding that both the parties produced evidence in the form of documents and pleadings before the arbitrator and there was sufficient material before the arbitrator on the basis of which the award has been passed. Nonetheless, this court is sitting as a court of appeal under Section 39 of Arbitration Act and cannot re-examine or re-appreciate the evidence. Even the court exercising jurisdiction under Section 30/33 of Arbitration Act also cannot sit as a court of appeal over the award passed by an arbitrator, in whose domain alone question of appreciation of evidence falls. Therefore, neither the judgment nor the award can be interfered on this count.

6. Regarding the second ground that the arbitrator was required to pass a reasoned award, I have perused Condition No. 70 of the Contract Agreement relied upon by Mr. Nanda, which requires the arbitrator to indicate his finding along with sum awarded separately on each individual item of dispute. From the copy of award filed by the arbitrator it appears that the arbitrator has dealt with each claim item-wise. It is an item-wise award and not lump sum award. As the sums have been awarded against each claim wherever it has been allowed, there does not seem to be any violation of Condition 70 of the Contract Agreement as has been contended by Mr. Nanda.

7. Condition 70 of Contract Agreement was amended on 03.10.1986, which, inter alia, requires that where the claim or counter-claim in an arbitration reference exceeds Rs. 1 lac, the arbitrator shall give reasons for the award. In the present case, the Contract Agreement was executed on 19.06.1985, whereas the amended condition was incorporated in October 1986, that too unilaterally. The contractor cannot be said to be a party to the amendment in the general conditions of contract introduced by the appellants after its execution, therefore, the amended condition has no application to the case in hand.

8. This question also came to be considered by a Division Bench of this court in case of Union of India v. Om Prakash Baldev Krishan, AIR 2000 J&K 79, and it was held as under:

“6. It is true that following sub-para was added to sub-para (9) of Condition 70 of the General Conditions of Contract by order of the Government of India, Ministry of Defence:

‘if the value of the claims or counter-claims in an arbitration reference exceeds Rs. 1 lakh, the arbitrator shall give reasons for the award.’

However, the order directed that this amendment shall come into effect from 03.10.1986 Obviously, the amendment was only prospective. Since this condition was made part of the general conditions of contract only after 03.10.1986, therefore, it could not be read into the agreements already executed and implemented. The arbitrator, therefore, had no obligation to follow the amendment though it would be ideal for any arbitrator to do so. But the award is not illegal because this amendment was not in force at the time the agreement between the parties was executed. The challenge to the award on this score is, therefore, not well founded.”

9. The Apex Court also considered this question in case of Build India Construction System v. Union Of India., (2002) 5 SCC 433 : AIR 2002 SC 2437 : 2002 (2) Arb. LR 1 (SC), and ruled:

“In the present case, the contract entered into between the parties providec an arbitration clause to refer all disputes to a sole arbitrator. It did not provide for a reasoned award to be given by arbitrator. The contractor had also signed an acceptance letter to abide by general terms and conditions of contract as modified.

The Government subsequently amended the general terms and conditions of contract. The amended terms required to a reasoned award to be passed. Disputes arose between the parties. It was referred to arbitration. The arbitrator made an unreasoned award. The award was set aside by appellate court on ground that in view of subsequent amendment made by Government in general terms and conditions of contract arbitrator was required to give a reasoned award. Held, the award was not liable to be set aside for want of reasons. The contractor's agreement to abide by the terms and conditions, as modified, qualifies the terms and conditions contained in the general conditions of contract as on and till that day. There is nothing contained in the acceptance letter, either expressly or by necessary implication, to spell out the contractor having authorized the respondents to carry out modifications in the terms and conditions of the contract otherwise than by mutual agreement, and to hold the contractor bound by such modifications though not consented to by him and though not even brought to his knowledge. The arbitration clause is contained in the contract entered into between the parties. Its terms could not have been varied except by mutual agreement. Moreover, the amendment made to the general terms and conditions of contract itself provides for its coming into effect from 30th day after the date of the amendment. That amendment clearly cannot have any relevance for interpreting the arbitration clause contained in the contract entered into between the parties much before the date of amendment coming into effect.”

10. Therefore, in view of the law laid down by the Apex Court and this court, there was no obligation upon the arbitrator to pass a reasoned award.

11. Notwithstanding above, no such plea was raised in the objections under Section 30/33 of the Arbitration Act before the learned District Judge, Jammu. The award was sought to be contested on merits and the jurisdiction of arbitrator was challenged only in respect to award of interest. In absence of there being any specific plea of misconduct on this count, appellants cannot be permitted to raise the same in appeal. The contention is accordingly rejected.

12. Regarding the power of arbitrator to grant interest, it is now settled proposition of law that the arbitrator is competent to award pre-reference, pendente lite and future interest. The issue is no more res integra having been settled by a Division Bench of this court in case of Smt. Manjit Johl v. Dewan Modem Breweries Ltd., AIR 1994 J&K 56 : 1994 (2) Arb. LR 166 (J&K) (DB). The relevant extract is reproduced as under (para 17 of Arb. LR):

“The entitlement of a party to claim interest depends upon either the availability of a statutory provision like the Interest Act or the existence of an agreement to pay the same or the existence of a trade usage. Interest prior to the reference cannot be said to be payable only if the Interest Act is applicable, it can be claimed even in a case where no statutory provision like the Interest Act is applicable, but the parties have entered into an agreement, which envisages the making of such payment. It may also be payable where the party claiming interest proves the existence of a trade usage of paying interest on the outstanding amounts.”

13. In State Of Orissa v. B.N Agarwalla, (1997) 2 SCC 469 : 1997 (1) Arb. LR 612 (SC), the Apex Court held as under (para 18 of Arb. LR):

“The principles which can now be said to be well-settled are that the arbitrator has the jurisdiction to award pre-reference interest in cases which arose after the Interest Act, 1978 has become applicable. With regard to those cases pertaining to the period prior to the applicability of the Interest Act, 1978, in the absence of any substantive law, contract or usage, the arbitrator has no jurisdiction to award interest. For the period during which the arbitration proceedings were pending in view of the decision in G.C Roy case, (1992) 1 SCC 508 : 1992 (1) Arb. LR 415 (SC) and Hindustan Construction Ltd. case, (1992) 4 SCC 217 : 1992 (2) Arb. LR 412 (SC), the arbitrator has the power to award interest. The power of the arbitrator to award interest for the post-award period also exists.”

14. In Secretary, Irrigation Department, Government of Orissa v. G.C Roy, (1992) 1 SCC 508 : AIR 1992 SC 732 : 1992 (1) Arb. LR 145 (SC), the Supreme Court held as under (para 43(i), (ii) of Arb. LR):

“A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, CPC and there is no reason or principle to hold otherwise in the case of arbitrator.

An arbitrator is an alternative forum for resolution of disputes arising between the parties.”

15. Therefore, the power of arbitrator to award interest at different stages of the dispute cannot be disputed, notwithstanding absence of any such stipulation in the Contract Agreement. The grant of interest is compensatory in nature and is permissible.

16. Finally, it was argued by Mr. Nanda that the award is malicious and there is error apparent on the face of record. However, neither any such error has been brought to the notice of the court nor reference was made to any such fact on the record. Though no such specific plea was raised, however, the trial court while deciding Issue No. 3, wherein the validity of award on any other count was examined, specifically recorded that no argument was advanced in respect to the said issue. This fact has not been disputed in the memo of appeal. I do not find any reason to interfere either with the judgment impugned or the award. This appeal is accordingly dismissed without any order as to costs.