1980 PLP 1977 (CLC)

Government of Pakistan, Ministry of Industries v. Messrs National Agencies, Karachi P L D 1978 Kar. 827 M. Younus & Co. v. Hajiani Mariam Bai and others P L D 1963 Kar. 791 and Messrs Hakimudd in Harmusani & Sons v. Messrs Ghafoor Textile Mills P L D 1978 Kar. (c) Arbitration Act (X of 1940)-- -- S. 30--Award-Setting aside of--Award a non-speaking award-- Error in such award, held, cannot be urged as apparent on face of record. Hassan Akbar for Plaintiff. M. S. M. Noorul Hassan for Defendant, Date of hearing : 28th January, 1980. These are the objections to the award dated 7th January, 1978 given by the Sole Arbitrator awarding a sum of Rs. 56,000 to the plaintiff. The facts leading to the filing of the above objections are that the defendant entered into a contract for the construction of a "Store Shed measuring 53 x 30" for a lump sum of Rs. 99,

525. An agreement was executed on 14th September 1975. Under the terns of the contract the work was to be completed within 2 months. It appears that the site where the above shed was to be constructed was not available and therefore, it could not be given to the plaintiff, It ensued the exchange of certain correspondence between the parties. Eventually the defendant by a notice dated 26th November 1975 terminated the contract. Thereupon the plaintiff came out with a claim and invoked the arbitration clause and appointed Syed Nasir Haider as his arbitrator through a notice dated 25th March, 1977 and requested the defendant to appoint their arbitrator. Since the defendant did not appoint any arbitrator in response to the plaintiff's above notice, the plaintiff through his letter dated 8th October 1977 again requested the defendant to appoint their arbitrator. In spite of the receipt of the above second letter, the defendant did not appoint their arbitrator, consequently, the plaintiff through his letter dated 7th November 1977 Exh: 11 appointed aforesaid Syed Nasir Haider as the sole arbitrator it, terms of section 9 of the Arbitration Act. The plaintiff filed a claim of Rs. 97,122 before the Sole Arbitrator who gave the impugned award to which the defendant had filed the present objections. It may be observed that, by an order dated 3rd September 1978, the above award was made a rule of the Court and the defendants' objections were dismissed the ground of the limitation. Being aggrieved the above order the defendant had tiled a high Court appeal, which was allowed on 13th January 1979 and the case was remanded back to this court for the re-hearing of the above objections including on the question of the limitation.

2. In order to decide the question of the limitation at the request of the parties, 1 have examined P. W. 1, an Inspector Post Office authorities and D. W. l a despatch clerk- of the defendant Corporation. P. W. I has produced the delivery slip maintained by the Postal Authorities which clearly shows that inter alia the registered letter in question namely bearing No. 183 was received by the K. E. S. C. on 6th March, whereas D. W. I has produced an inward register showing that the letter in question was entered into the aforesaid inward register on 8th March 1978. He has also deposed that the practice in the defendant corporation is to enter the registered letter on the day of the receipt thereof. The above witness has also identified his signature on the delivery slip a5 well as on the acknowledgement receipt and has admitted that the delivery slip maintained by the Postal Authorities contains the 6th March, in his handwriting as the date of the receipt of the above letter. However, as regards the postal acknowledgement receipt be maintained that it contains 8th March. It may be pertinent to observe that in the judgment passed by the Division Bench, it was observed that the date on the postal acknowledgement receipt was not clear and the parties were free to agitate this question before this Court. The date mentioned on the postal' acknowledgement receipt very clear and can be read as 6th March, as well as 8th March. However, in view of the fact that the delivery slip Exh. 4/1, contains 6th March, without any ambiguity, it is to be held that the registered letter containing the notice of the filing of the award was served on the defendant on 6th March. reliance can be placed on the inward register for the simple; reason that it is not uncommon that entries in the inward-register are made not on the day of the receipt of a particular letter, but even after one or two days from the receipt thereof, 1, therefore, hold that the above objections are barred by limitation as the same were filed on 8th April 1978 and whereas notice of the filing of the award was served on 6th March 1978 according to my above finding, i e. after the expiry of more than one month:

3. As regards the merits of the objection, it has been urged by Mr. Noorul Hasan that this court can itself under section 33 of the Arbitration Act examine the validity of the award. Without expressing myself on the correctness of the above contention, it may be observed that the main grievance of the defendant is that there was no evidence before the learned arbitrator on the basis of which the above award could be given. In support of his above contention, he has relied upon the decision given by me in the case of Government of Pakistan, Ministry of industries v. Messrs National Agencies, Karachi (P L D 1978 Kar. 827) the case of M. Younus & Co. v: Hajiani Mariam Bai and others (P L D 1963 Kar. 791) and the case of Messrs Hakimuddin Harmusani & Sons v. Messrs Ghafoor Textile Mills (P L D 1978 Kar. 152). It may be pertinent to observe that the instant case is not a case of no evidence as the arbitrator had examined the plaintiff, who had supported the claim. It is true that no document has been produced/proved before the arbitrator in order to support the claim. However, I cannot overlook the fact that the defendant had chosen not to participate in the arbitration proceedings and, therefore, the plaintiff's statement remained unchallenged. The above statement constitutes a piece of evidence, and therefore, it cannot be urged that the instant case is a case of no evidence. The above evidence may be insufficient for obtaining a decree from a Court of law or even to obtain an award from an arbitrator well conversant with the law of evidence. However, by now it is a well-settled principle of law that Court of law cannot set aside an award on the ground of the insufficiency of evidence or on the ground that the evidence before the Arbitrator was not worth believing. On the other hand in a case of no evidence the Court will not hesitate in setting aside an award. Mr. Noorul Hassan has also urged that the plaintiff was not ready to execute the contract at the contract rates, and, therefore, he could not have claimed any damages and that as the contract stood discharged, there could not have been any arbitration, it will suffice to observe that the above contentions involve disputed question of fact, which cannot be gone into these proceedings. Even otherwise the award being a non speaking award, it cannot be urged that there was any error apparent on the face of the award. In view of the above discussions, I dismiss the objection with no order as to costs. I make the award a rule of the court. The plaintiff shall be entitled to 7% simple interest from today till payment of the above amount. K. M. A.

Suit dismissed.