2017 PLP 176 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this appeal filed under section 39(vi) read with section 17 of the Arbitration Act, 1940, appellant has challenged the judgment and decree dated 20.05.2014 passed by the learned Civil Judge 1st Class, Lahore whereby after dismissing the application filed by the appellant raising objections on the award dated 18.10.2012, same was made rule of the court.

2. Instant appeal was filed before this Court and same was fixed before the learned Single Judge. Learned counsel for the respondent raised objection that in the light of judgment reported as 2003 YLR 353 "Chairman v. Messrs Clough Engineering Ltd. and another" this appeal be heard by the learned Division Bench of this Court as the award dated 18.10.2012 amounting to Rs.1,28,91,717/- has been made rule of Court whereas the stance of the learned counsel for appellant was that in the light of judgment reported as PLD 2003 Lahore 522 "Rashida Begum v. Muhammad Anwar and othsrs" appeal can be heard by a learned Single Judge. The learned Single Judge referred the matter to the Hon'ble Chief Justice. The Hon'ble Chief Justice sent the appeal for hearing before this Division Bench, therefore, learned counsel for the parties stated that as the appeal is being heard and decided by the Division Bench of this Court, therefore, they do not further press their point raised with regard to the hearing of appeal by the Single Bench or Division Bench, therefore, we do not dilate upon this question any further.

3. The detailed narration of facts is not necessary as the same have been noted, in detail in the impugned order passed by the learned Civil Judge. The most relevant and brief facts are that on the basis of memorandum of understanding dated 17.12.2009 (Exh.P2/1), first agreement dated 12.5.2010 (Exh.P3/1) was arrived at between the parties, whereafter on 22.11.2010 another agreement was arrived at between the parties. Respondent Maxim International filed an application under section 20 of the Arbitration Act, 1940 on 4.10.2011 with a prayer that respondent, present appellant Pepsi Cola International (Pvt.) Limited, be directed to file the Arbitration Agreement in the Court. The reference of Arbitration Agreement dated 22.11.2010 has been made. This agreement contains Clause No. 20 relating to arbitration, which is as follows:- "Arbitration: In case a dispute arises between the Parties regarding the terms of this Agreement, the same shall be referred to arbitration under the Arbitration Act 1940 before a sole arbitrator to be mutually appointed by the Parties, or in case the Parties should fail to reach agreement, to be appointed by the court. The arbitration proceedings shall be conducted in Lahore." The term of agreement is mentioned in Clause 13, which is reproduced as under:- "Agreement Term: The term of this Agreement shall be for a period of six months commencing from 22nd November, 2010 and expiring on 22nd May, 2011 (hereinafter the "Term"). At the expiry of the Term, PI may invite tenders/bids from other parties to provide Acquisition and Utilization services in its complete discretion. PI shall allow the Purchaser to match the highest price received in such bidding process." The agreement was filed. The learned trial court appointed Mr. Justice (R) Karamat Nazir Bhindari as sole arbitrator vide its order dated 21.3.2012. The last paragraph of the order which is important is reproduced:- "Learned counsel for the respondent submits that the agreement has been fulfilled and now there is no dispute between the parties, therefore, there is no need to conduct the arbitration, however, contention of learned counsel for the petitioner is not maintainable because in the agreement it is mentioned that "PI shall allow the purchaser to match the highest price received in such bidding process" and it is admitted fact that the petitioner has not been awarded the contract for the next turn, therefore, there is dispute between the parties which has to be settled and in the agreement, there is an arbitration clause, therefore, matter needs arbitration and for this purpose, Mr. Justice (Retd.) Karamat Nazir Bhandari is appointed as sole arbitrator who shall conduct the arbitration with regard to the dispute between the parties as mentioned in petition. The learned arbitrator shall issue notice to both the parties where parties shall appear and they are also bound down to join the proceedings. Fee of learned arbitrator is fixed as Rs:7,00,000/- which would be paid by the parties equally. File be consigned to the record room after its due completion." The Arbitrator on 28.5.2012 with the consent of the learned counsel for the parties framed the issues/points of dispute requiring adjudication, which are noted here for ready reference:-

1. Whether the right of first refusal vested in the Applicant/claimant under clause 13 of the November 2010 agreement? If yes, whether the Respondent denied and breached this right? OPC

2. Whether the right of first refusal was to be exercised for each item separately or collectively for all the four items? OPP

3. Whether the Applicant/Claimant failed to match the highest bids? OPD

4. Whether the bidding process was not transparent and improper? OPC

5. Whether the parties intended to enter into long term relationship and continue the same until the end of 2012 at the minimum? OPC

6. Whether the applicant/claimant made any significant investment for the purposes of long term relationship? OPC

7. Whether the Respondent failed to perform the contract date 22 November 2010. If yes, whether the Applicant/Claimant employed all the means which existed of remedying the inconvenience caused by such non-performance of the contract? OPD

8. Whether the Applicant/claimant suffered any loss of reputation on account of acts of commission/omission committed by the Respondents? OPC

9. Whether the applicant is entitled to damages in the sum of Rs.47,278,927 or any other sum of damages? OPC

10. Relief. The learned Arbitrator after recording oral as well as documentary evidence of the parties signed the award on 18.10.2012 and forwarded the same to the court. The learned trial court vide order dated 20.5.2014 has made the award rule of the Court. Hence, this appeal by Pepsi Cola International (Pvt.) Limited.

4. Though learned counsel for the parties have advanced exhaustive arguments on each and every point they thought that same is relevant for determination of this appeal, as we have noted supra we are noting the most relevant facts which are necessary for decision of this appeal and we knowing the jurisdiction of this Court in the light of judgments of the august Supreme Court of Pakistan want to restrain ourselves to the extent of jurisdiction we have.

5. First we deal with the questions that what is the scope of jurisdiction of Appellate Court in arbitration proceedings and whether the Court is empowered to reverse the finding of the arbitrator if it does not find support from evidence, or reasons recorded by the arbitrator are perverse, or the award is nullity or is prima facie illegal or not fit to be maintained or suffered from any other invalidity which is self-evident or apparent on the fact of record or illogical, irrational or illegal award. In this regard reliance can be placed on judgment of august Supreme Court reported as 2014 SCMR 1268 "A.Qutubuddin Khan v. Chec Millwala Dredging Co. (Pvt.) Limited". Para Nos. 10, 12 and 13 of the judgment are very relevant, therefore, we quote same for ready reference:- "

10. In view of the above, the obvious question that floats to the surface is that in the eventuality that an Award was filed in the Court and objections thereto are either not filed or if filed found to be barred by limitation, whether the Court is to mechanically make such an Award, the Rule of the Court. The powers vested in the Court to make an Award, the Rule of the Court are obviously judicial and not ministerial and it is now settled law that the absence of objections to such an Award does not absolve the Court of its responsibility to examine the same. In the instant case, the learned Single Judge, after concluding that the objections filed by the respondent were time barred, without conducting a judicial exercise of examining the Award qua its validity, made the same the Rule of the Court. Hence, its order in this behalf dated 5.8.2000 was not sustainable in law and was rightly set aside by way of the impugned judgment and the case remanded.

12. What emerges from the examination of the above quoted two judgments of this Court is that, even in the absence of objections, the Award may be set aside and not made a Rule of the Court if its nullity or is prima facie illegal, or for any other reason not fit to be maintained; or suffers from an invalidity which is self-evident or apparent on the face of the record. The adjudicatory process is limited to the aforesaid extent only.

13. In view of the aforesaid, the impugned judgment dated 19.3.2003 is upheld to the extent that it set asides the Order of the learned Single Judge dated 5.8.2000 and remands the case. The objections filed by the respondent are time barred. The learned Single Judge in post-remand proceedings shall decide whether to make the Award the Rule of the Court after examining as to whether the said Award is a nullity or prima-facie illegal or not fit to be maintained or suffers from any other invalidity which is self-evident or apparent on the face of the record." Further reliance can be made upon judgment of the august Supreme Court of Pakistan reported as 2006 SCMR 614 "Allah Din and Company v. Trading Corporation of Pakistan and others". Para 6 of the judgment is relevant, which is reproduced:- "The contention of the learned counsel for the purchaser that the Court is not entitled to disagree with the findings of the arbitrator is without force. It is true that the trial Court does not sit in appeal from the finding of the arbitrator but at the same time the Court is empowered to reverse the finding of the arbitrator on any issue if it does not find support from the evidence. The very incorporation of section 26-A of the Arbitration Act requiring the arbitrator to furnish reasons for his finding was to enable the Court to examine the soundness of the reasons. As already held the arbitrator in the case before us had granted damages for loss of reputation and goodwill without there being any evidence to that effect. The Courts were, therefore, justified in denying this claim to the purchaser." And judgment of august Supreme Court of Pakistan reported as PLD 1996 Supreme Court 108 "M/s. Joint Venture KG/Rist through D.P.Giestler G.M, Bongard Strasse 3, 4000, Dusseldorf-30, Federal Republic of Germany, C/o 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan, through Secretary Food, Agricultural and Coop: and another". We note placitum B at page 109 of the judgment:- "The Court while examining the validity of an award does not act as a Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the arbitrator in order to discover the error or infirmity in the award. The error or infirmity in the award which rendered the award invalid must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded by the arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the arbitrator in the award." Further light can be taken from the judgment of august Supreme Court reported as 1982 SCMR 243 "Province of Punjab through Collector, Bahawalpur v. Sufi Habib Ullah":- "But since reasons have been given they have to be based upon the evidence produced before him and the law applicable to it and if the Arbitrator has not done so, the Award is certainly liable to be set aside and that is what the High Court has done."

6. Now the question arises that as claimed by the appellant the agreements were not enforceable in law as the same were agreement to agree. Reliance has been placed upon the judgment reported as AIR 1984 Karnataka 214 "Sudarshan Trading Company Limited v. Mrs. L.D. Sauza." Relevant lines are reproduced as under:- "There can be no binding and concluded agreement when there is no consensus on one of the cardinal terms of the agreement. On the evidence on record all that can be said is that there were, perhaps, some talks between the parties in the matter of renewal of the lease and nothing definite emerged therefrom. This is not the material of which legally binding contracts are made. An agreement to agree is no contract in law." and the judgment reported as AIR 1998 Cal 44 "Punit Beriwala v. Suva Sanyal". "A mere agreement to agree is not enforceable in a Court of law." FAO (OS) No. 413/2012 dated 28.08.2012 [Dehli High Court] titled "Davender Kumar Sharma v. Mohinder Singh". "We may also note that the MOU is not an agreement which is enforceable, but only an agreement to agree." The judgment reported as (2001) 167 CTR (Kar) 248 "Chartered Housing and Bhoruka Finance Corporation versus Appropriate Authority". "Mere agreement of sale would not be arrived at in respect of immovable property, and had opined that, if it were so, section 269 UC would require the parties to enter into a prior agreement in the form mentioned in sub section of that section before entering into the agreement for sale, and such construction would be an absurd construction as the law does not recognize an agreement to agree."

7. Now comes the question of scope of reference which the Court can made under section 20 of the Arbitration Act, 1940. We refer the judgment reported as AIR 1977 SC 2014 "Orissa Mining Corporation Limited v. Prannath Vishwanath Rawlley":- "When an agreement is filed in court and order of reference is made then the claim as a result of the order of reference is limited to a particular relief and the arbitrator cannot enlarge the scope of the reference and entertain fresh claims without a further order of reference from the court." and the judgment reported as 1998 (2) Bom CR 387, 1998 (2) MhLj 177 "Charuvil Koshy Varghese v. State of Goa" on 23 January, 1998 "The apex Court in Orissa Mining Corp. v. M/s. Prannath Rawley (supra) has laid down in Para 11 that when an agreement is filed in the Court and order of reference is made then the claim as a result of the order of reference is limited to a particular relief and the arbitrator cannot enlarge the scope of the reference and entertain fresh claims without a further order of reference from the Court. No such order was obtained in the case under consideration before me by the respondent from the Court, but the Chief Engineer in the order of appointment which was made in pursuance of the order of the Court which was restricted to the reference of the claim of the appellant alone to the Arbitrator, on his own added the counter claims and counter charges of the Government. The other judgments of the Apex Court upon which reliance has been placed by learned Advocate for the appellant have laid down that the Arbitrator cannot entertain and decide any dispute which has not been referred to him and he cannot enlarge the scope of reference." Apart from the case law relied above, the judgments of our High Court are also relevant for consideration in this regard i.e. the judgments reported as PLD 1958 Lahore 208 "Novelty Cinema Lyallpur v. Firdaus Films and another", 1987 MLD 2832 "Messrs Cosmopolitan Development Company v. Messrs SO DIME, S.P.A and another", 1988 CLC 1350 "Syed Arshad Ali v. Sarwat Ali Abbasi", 1983 CLC 1498 "Muhammad Yousuf Burney v. S. Muhammad Ali" and PLD 1977 Karachi 838 "Pak National Construction Co. Karachi v. State Bank of Pakistan and another".

8. Now comes the question that basis for calculation of damages what evidence is required to prove the quantum of damages. We can take light from the judgment of august Supreme Court reported as 2009 SCMR 276 "Azizullah Sheikh v. Standard Chartered Bank". "In view whereof, the learned counsel for the petitioners is right in submitting that the petitioners have been able to prove breach of contract but that is not enough to award claimed damages to the petitioners. Undoubtedly, the petitioners filed the suit claiming damages while relying on the provisions of section 73 of the Contract Act. Under section 73 of the Contract Act, the party claiming damages has to firstly plead and then prove by sufficient, trustworthy, independent and cogent evidence that the concluded agreement existed between the parties, the other party committed breach of contract, such breach entitles the first party to damages and the foremost factor is quantum of damages." and the judgment of august Supreme Court of Pakistan reported as 2006 SCMR 614 "Allah Din and Company v. Trading Corporation of Pakistan". "Apart from a bare claim of the purchaser, the learned counsel could not even refer to any evidence produced by the purchaser before the arbitrator on this issue. The finding of the arbitrator on the issue reproduced above indicates the absence of such evidence as he had awarded compensation on the item simply on the ground that the purchaser was not questioned on behalf of the Food Department on the issue." And the judgment reported as 2014 CLD 519 "Pak Petrochemical Industries v. Syed Hamid Ali". "

30. As far as claim for damages is concerned, indeed in rebuttal there is no defence/evidence but still very heavy burden lies on the plaintiff to prove the damages in the sum of Rs.50.00 million or any part thereof. As a rule even fixed amount of damages cannot be granted unless quantum of actual losses is proved through cogent evidence. Merely, on the basis of routine assertions damages cannot be granted. Under the Contract Act, 1972 [IX of 1972] the party claiming damages firstly to plead and then to lead sufficient, trust-worthy and positive evidence in proof of damages." And the judgment reported as 2014 CLC 5 [Sindh High Court] "Abdul Latif Shaikh v. World Call Telecom Limited". "

11. In concurrent findings, both the learned lower courts have correctly observed that damages suffered and quantity of amount claimed under each head would have to be proved by cogent evidence and mere assertion of inflated amount without any corroboratory evidence would be of no avail to the plaintiff. Damages for mental suffering may be mental and physical shock, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, attributable to medical treatment for the injury and the amount of compensation will vary with the intensity of pain and suffering of plaintiff. Mental suffering and psychiatric injury follows from foreseeable physical injury may be compensated under the head "pain and suffering" or mental suffering which amounts to recognizable psychiatric illness, requires psychiatric evidence, which is lacking in this case." and the judgment of august Supreme Court reported as 1993 SCMR 441 Ahmed Saeed Kirmani v. Muslim Commercial Bank. Final Para. "A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract. Only such damages can be recovered which naturally arise in the usual course of things from such breach or the parties at the time of making the contract knew that loss or damage in likely to result from the breach. Another principle which is to be kept in mind while assessing damages is that whether the plaintiff was in a position to mitigate the damages and has neglected to avail of it. As discussed above the appellant has failed to prove the agreement with the Egyptian Embassy, the rate of rent and the date of occupation. The appellant as stated by him is a man of status and resources but he has not proved what steps he had taken to mitigate the damages. It was contended and held by the learned trial court that as the Bank failed to pay the entire loan, the appellant could not be compelled to repay the loan received by him. In the facts of the case such an observation cannot be justified by any principle of law. A party can be relieved of his obligation under a contract where there are covenants which are conditional and the performance of one is dependent on the performance, of the other. There is no such conditional or reciprocal promise between the appellant and the respondent. In view of the above discussion the appeal is dismissed with no order as to costs." and the judgment of august Supreme Court reported as 1982 SCMR 243 "Province of Punjab versus Sufi Habib Ullah". "

2. The submission made before us is based upon the Award itself. The High Court, after an elaborate judgment, has held that "the Award being laconic and totally silent as to the basis or reason thereof, could not have been, in the circumstances, legally given effect to." It has been stated before us that the Arbitrator was under no obligation to have given reasons for the Award that he had made. We find that in paragraph 3 of the petition the operative part of the Award, has been reproduced by the petitioner. The mere fact that this is an operative part shows there must be another part of the Award in which reasons must have been given. If the Arbitrator was not to give reasons the observations of the High Court would probably not have been correct. But since reasons have been given they have to be based upon the evidence produced before him and the law applicable to it and if the Arbitrator has not done so, the Award is certainly liable to be set aside and that is what the High Court has done."

9. On the other hand, learned counsel for the respondent relies upon the various case laws. We would like to reproduce relevant portion from certain judgments, as below:- PLD 1976 Karachi 31 Messrs Crescent Jute Products Ltd., Karachi v. Government of Pakistan. "The Court can only interfere if the award is bad on the face of it or there is an error of law apparent on a mere perusal of the award. In the absence of any such indication if the award substantially decides the actual dispute between the parties, it would not render the award as invalid or without jurisdiction, if the precise questions referred are not answered in the manner indicated in the reference. Nor can the award be set aside as illegal on the ground that the arbitrator has committed error of law in arriving at the decision. The arbitrators are supposed to be laymen not conversant with the niceties of the law and rules and if the award is badly stated it cannot for that reason be considered as liable to be set aside. Only when a legal proposition forming the basis of the award is, on the face of it, erroneous, can the award be set aside or remitted. It must be contrary to the specific provisions of the law and this error should be apparent on the face of the award." 2008 CLC 798 "Al-Abdullah Constructors (Pvt.) Limited v. Pakistan Water and Power Development Authority through Chief Engineer." "Where no misconduct was found on the part of Arbitrator and award did not suffer from any illegality and infirmity, then court would be bound to give reasonable intendment in favour of award and lean towards holding same valid rather than to vitiate same." PLD 2003 Supreme Court 301 Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Limited Karachi. "

14. As regards first ground, it is noted that nothing has been brought to our notice from the record to substantiate the plea of alleged misconduct on the part of Arbitrator. The word "misconduct" with reference to arbitration proceedings, is interpreted in the sense in which it is used in English Law and it not akin to fraud, but it means neglect of duties and responsibilities of the Arbitrator." 2014 CLD 132 Engro Fertilizers Limited v. Federation of Pakistan through Secretary, Ministry of Industries, Government of Pakistan, Islamabad. "The applicant is required to first point out/show the efforts from the award itself, as the court cannot first look into the material used by the Arbitrator and then compare it with the reasoning given in the award in order to discover the error in the award. If applicant succeeds in pointing out/showing such an error from the award itself, the burden will have still be on the applicant to show that the findings of Arbitrator are contrary to the evidence produced before him. The applicant is also required to show that the error of law or fact in relation to the proceedings or the award is floating on the surface, which cannot be ignored, and if it is left outstanding, it shall cause grave injustice or it shall violate any express provision of law or the law laid down by the Superior Courts." PLD 2006 Lahore 534 Premier Insurance Company and others v. Attock Textile Mills Limited. "The statutory grounds in this behalf are clearly provided in sections 30 and 33 of the Arbitration Act. An arbitration is a forum, which is chosen by the parties out of their own free-will and consent, for the resolution of the dispute inter se them; such forum has the sanctity of the confidence of the parties reposed upon it and to all intents and purposes, the arbitrators are the Judges of law and fact and can accordingly decide the dispute. It also cannot be disputed that the arbitrators have the full authority to appreciate the facts of the case, according to their own perception, expertise, knowledge and wisdom, and such appreciation of facts, if not suffering from the vice of any misreading and non-reading of the record, shall not be interfered with by the Court only on account that another conclusion is possible. The Court while considering the validity of the award should not sit as a Court of appeal, trying to fish or dig out the latent errors in the proceedings or the award, but should only confine itself to examining the award by ascertaining, if there is any error, factual or legal, which floats on the surface of the award or the record and if such an amiss is allowed to remain, grave injustice shall be done to the aggrieved party. The perversity about the reasoning, though is a ground for the interference in the award, but the Court should not infer the perversity because of the factual conclusion being wrong, rather it should be taken to be analogous and akin to "perverse verdict" which means that the factual conclusion drawn is against the law; obviously this shall include the decision of the arbitrator on the facts of the case being based upon the misreading and the non-reading of the evidence/record. The award of an arbitrator, who is the Judge selected by the parties themselves, should not be lightly interfered with until and unless it is established that the error committed by him is so glaring that if it is overlooked, it shall lead to miscarriage of justice. But certainly the award cannot be intercepted on the ground that on the reading of the evidence, a conclusion other than arrived at by the arbitrator, is possible." PLD 2011 Supreme Court 506 "Federation of Pakistan through Secretary Ministry of Food, Islamabad and others v. Messrs Joint Venture Kocks K.G./Rist" "But it is settled law that the objections to the award must be clear and unambiguous, stating with precision, clarity and certainty the grounds why it should be interfered. In our considered and candid view the objection petition even does not reveal by implication that this has been the objection of the petitioners or was ever intended to be so. Besides, from the contents of the F.A.O. filed by the petitioners against the rejection of their objections, it is conspicuously noticeable that no ground has been set out to challenged the supplemental award on the basis and the touchstone of the judgment (supra); same is the position of the present petition. We are not persuaded by the argument of learned Deputy Attorney General that the aforementioned plea is a question of law and can be propounded and adjudicated by the courts at any stage of the proceedings. Therefore, the first submission that the award is in violation of the said judgment is misconceived, which is hereby repelled." 2012 CLC 441 Muhammad Nadeem v. ADJ Bhakkar and others "Both the parties made a joint statement before the arbitrator that they would abide by the award made by the arbitrator

After hearing the parties, the arbitrator held the plaintiff entitled to get amount of Rs. 16,49,033 as damages

No objection was raised by defendant before the arbitrator with regard to scope of reference or upon the jurisdiction of the arbitrator

Parties raised no objection on the credibility or jurisdiction of the arbitrator

When arbitrator award was made and announced, the defendant company, seeing the award unfavourable to it, took certain objections with regard to scope of reference for determinaion of the dispute." PLD 1968 Lahore 629 Mst. Umar Bibi and others v. Bashir Ahmad and others. "Where the order of the Court directed the arbitrators appointed by the parties for" It was held that the Court had referred the whole case to the arbitrators and the order of reference could not be held to be suffering from any defect on the ground that the matter in difference had not been specifically mentioned in the order of reference itself."

10. We have noticed that after memorandum of understanding, first agreement and the second agreement contain the limitation period as well as the arbitration clause. The application filed under section 20 of the Arbitration Act, 1940 by the respondent Maxim International (Pvt.) Limited shows arbitration under the last agreement was pressed and we have further noted that the Court was bound under the law to refer the matter to the Arbitrator in accordance with the agreement between the parties. The order of reference dated 21.3.2012 shows that the matter has been referred in accordance with the dispute mentioned in the application filed under section 20 of the Arbitration Act, 1940 by Maxim International (Pvt.) Limited. We have further noted that the application under section 20 consists upon 18 pages whereas a specific reference in accordance with the agreement between the parties was to be referred to the arbitrator, as no appeal is provided in Arbitration Act, 1940, against order of referring the matter to the Arbitrator, therefore, at this stage it was relevant that the learned trial court should have attended that whether there was any defect in the order of reference to the Arbitrator. Further the learned trial court was bound to see that the issues or points of dispute framed by the learned Arbitrator were in accordance with the agreement of arbitration between the parties though the learned Arbitrator has recorded that same are being framed with the consent of learned counsel for both the parties. As both the parties to arbitration were the companies (the juristic person) before the Arbitrator whether any consent given by learned counsel for the parties beyond the scope of arbitration agreement gives the learned Arbitrator powers to determine that point which is not subject matter of the agreement.

11. Whether the issue of grant of damages is borne out from the agreement and when no such prayer was even made in the application under section 20 of the Arbitration Act, 1940 whether the damages were rightly granted by the learned Arbitrator and further that the agreement under which arbitration has been initiated was for a term of six months whether the grant of damages for a calculating on the period of three years was competent. Whether the method and rate of calculation of damages was correct.

12. In view of the above, in the light of case law referred supra it was the duty of the learned trial court to decide each and every objection raised by the present appellant before the trial court. Perusal of impugned order shows that all the objections have not been attended and decided and also these judgments have not been considered by the learned trial court, the trial court has not exercised jurisdiction vested in it under the law while rejecting the objections raised by the present appellant and making the Award rule of the court, therefore, in our view the order passed by the learned trial court while making the award rule of the court is not sustainable under the law, therefore, we accept this appeal, set aside the impugned order/judgment and decree and remand the matter to the learned trial court to decide the objections raised by the appellant Pepsi Cola International (Pvt.) Limited keeping in view the judgments specially the judgments of the august Supreme Court of Pakistan noted supra. Parties to appear before the trial court on 06.04.2015. MH/P-16/L Case remanded.