P L D 2010 Supreme Court (AJ&K) 1 (PLP)

KHAWAJA SHAHAD AHMED, J.

The captioned two Civil Appeals Nos.7 of 2006 and 12 of 2006 have been addressed against the judgment and decree of the High Court recorded on 2-3-2006 whereby while accepting Civil Appeal No.41 of 2006 filed- by the respondent-Government and its functionaries including the AJ&K Hydroelectric Board, the judgment and decree issued by the District Judge Muzaffarabad on 29-1-2004 has been set aside and the case remanded to the District Judge Muzaffarabad with the direction to provide a further opportunity to the parties for arbitration and in case the parties fail to settle the matter through arbitration, the trial Court to proceed with the case as 'a suit. As during the course of arguments the parties jointly moved an application through their Advocates with the prayer for appointment of sole-Arbitrator for final settlement of the dispute, this Court allowed the request and by agreement of the learned counsel finally appointed Mr. Abdul Rasheed Sulehria, District Judge to be the sole-Arbitrator. Suffice it to say the sole-Arbitrator, Mr. Abdul Rasheed Sulehria, filed award on 19-4-2007 and allowed the claim of the appellant to the extent of Rs.2,92,09,758 along with future interest of 10% till the outstanding amount is paid to the appellant. It has further been -held by the Arbitrator that different amounts awarded under different heads, as detailed in the award, shall remain subject to increase or decrease by the expert accountants. After submission of the award by the sole-Arbitrator the parties have filed their objections and written arguments with the prayer to consider the same and decide the case finally. As the parties have agreed upon appointment of sole-Arbitrator by this Court and award has been filed accordingly, the objections filed by the parties are to be considered under law. As the parties have agreed for appointment of sole-Arbitrator by this Court and final settlement of the controversy, the backdrop of the case is summarized to the extent it has been felt necessary for decision of the case which has already consumed about 9 years in the Courts and before the Arbitrators.

2. Messrs Ameen General Enterprises, plaintiff-appellant herein, which is a construction firm, offered construction work of a Project known as "2 MW Hydel Power Project Kundalshahi" and on the' basis of the lowest bid the construction work of the said project was allotted by the competent authority. This fact is not disputed. According to the version of the firm it completed the work to the satisfaction of the Employer but part payment for the work done and other claims were denied with the result that the Firm filed a suit for recovery of Rs.3,39,67,353 in the Court of District Judge Muzaffarabad on 19-8-1999. The Firm based its claim on the terms of contract which, among others, provided for supply of the drawings by the functionaries of the Employer and other acts to be performed by the said Employer. The Firm also attempted to exonerate itself for not completing the work allowed to it in time on the ground of natural calamities. When the Employer appeared in the trial Court in response to the summons, it filed detailed written statement with as many as 6 preliminary objections. The suit filed by the contractor was resisted on legal as well as factual grounds and while referring to the tender documents and agreement-deed as well as other documents, dismissal of the suit was prayed. On 7-9-2001 Raja Muhammad Hanif Khan, the learned counsel for the Employer, filed an application under section 21 of the Arbitration Act, wherein it was pleaded that through Government Notification dated 16-9-2001, the Government of Azad Jammu and Kashmir agreed that the matter in dispute be referred to the Arbitrators for adjudication. This application included the names of the Arbitrators and the terms of reference. Finally in consequence of the referred notification and subsequent amendment Ch. Muhammad Zaman, Chief Engineer Central Design Office, and Ch. Sadaqat Ali, Retired Secretary to the Government, were appointed as Arbitrators and the record of the case was transmitted to them with the following terms of reference:-- (1) As to whether the plaintiff is entitled to amount of claim of Rs.3,39,67,353 in view of contents of his plaint filed in the Court of District Judge Muzaffarabad, and under what circumstances? (2) Whether the suit of the plaintiff is not maintainable keeping in view the preliminary objections and para-wise reply of the written statement of defendants in the Court in the suit filed by the plaintiffs?

3. The Arbitrators filed their separately recorded Arbitration reports in the Court of District Judge Muzaffarabad on 15-7-2002 and 20-7-2002. The learned District Judge vide his order dated 10-3-2003 appointed Syed Nisar Hussain Shah, District and Sessions Judge/Judge Ehtesab. Court No.1 Muzaffarabad as Umpire. The Umpire so-appointed after hearing the parties and considering the reports filed by the Arbitrators submitted his award on 3-5-2003 in the Court of District Judge Muzaffarabad, who, vide his decision dated 29-1-2004, after determining the item-wise claim of the Firm and objections of Employer accepted the claim of the Firm to the tune of Rs.1,86,61,531 and declared the Firm to be entitled to get the said amount subject, however, to the condition that in case of an additional payment having been made by the Hydroelectric Board, the same shall be deducted from the said awarded amount. The judgment and decree so recorded by the District Judge was challenged through Appeal No.41 of 2006 in the High Court by the Government and its functionaries, particularly the Azad Jammu and Kashmir Hydroelectric Board. Although many objections were taken by the respondent-Government and other appellants, the learned Judge in the High Court accepted the appeal of the respondents while relying on section 8 of the Arbitration Act and some reports of the superior judiciary on the sole ground that the trial Court had illegally appointed the Umpire whose appointment was made by the Court without jurisdiction and the same being a legal misconduct by the Court, the judgment and decree passed by the District Judge was recalled. Another ground which prevailed with the High Court to accept the appeal and remand the case to the trial Court was that the Umpire had failed to answer the terms of Reference, so far as it related to maintainability of the suit filed by the Firm. The impugned judgment was recorded by the High Court on 2-3-2006 which has been assailed through the captioned appeals and as has been mentioned above the parties through their counsel agreed for settlement of the controversy' by this Court after considering the award/report from the sole-Arbitrator, who through his award dated 19-4-2007 has declared the appellant-Firm entitled to Rs.2,92,09,758 subject to adjustment mentioned above.

4. The parties have filed their objections/written arguments and while the Firm/Contractor has prayed for making the award as rule of the Court, the Employer and the official respondents have prayed for setting 'aside the award filed by the sole-Arbitrator. It has been submitted by the Contractor Firm that as the Employer has failed to produce any evidence before the sole-Arbitrator, the Firm is entitled to be compensated. While relying on provisions of the Arbitration Act, it has been pressed into service that the award by an Arbitrator can be disputed only on the ground mentioned in sections 30, 31 and 33 of the Arbitration Act. In this respect reliance has been placed on the case reported as Messrs Umar Khan v. Chief Engineer Roads and Buildings, Government of Baluchistan, Quetta 2002 CLC

492. In the estimation of the learned counsel representing the Contractor Firm the award can be made on the basis of documents attached with the file without recording any oral evidence or supporting document. As the documents attached with the file of the case have been admitted by the parties, the objection that the award is without any evidence, has no legal footing. Reliance has been placed on the cases reported as Messrs Joint Venture KG/RIST through D.P. Giesler 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, Agriculture and Coop: and another PLD 1996 SC 108 and S.G. Rayon Mills (Pvt.) Ltd. v. Fida Hussain and Associates 2002 CLC

353. While protecting the award so far as the interest granted is concerned, it has been contended that the parties had agreed to 10% interest on the sum of money when it became payable till the date of final payment. Among others this argument has been supported by relying on the case reported as Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC

393. To make the award as the rule of the Court without any alteration the learned counsel for the Employer has relied upon the cases reported as Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65, Messrs Joint Venture v. Federation of Pakistan PLD 1996 SC 108 and Messrs Abdullah Traders through Partner Mukhtar Ahmed v. Trading Corporation of Pakistan Ltd. through Chairman, Attorney, Principal Officer and 2 others 1999 CLC 2047. As the Arbitrator has not been maligned for any illegality or misconduct, this Court is bound to make the award as the rule of the Court. Reference in this respect has been made to the case reported as Wah Cement Company Employees Management Group, Wah through its Authorized (sic) and another v. State Cement Corporation of Pakistan (Private Ltd. through its Chairman) and 3 others 2004 MLD

835. While dealing with other objections on behalf of the Employer that the Arbitrator has based his award on the report made by Ch. Sadaqat Ali, it has been contended that the award by the sole-Arbitrator is very clear on the point that it is based on consideration of documents annexed with the file. The objection on behalf of the Azad Jammu and Kashmir Government that Arbitrator has relied upon a report submitted by the Assistant Engineer who was deputed by the Department to look after the construction work only, is misconceived as the said report submitted by the Assistant Engineer was to the extent of damages in respect of weir and as the same has not been refuted or disowned by the Employer, the claim of the Firm detailed in para 3 of the plaint is proved. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel, has refuted the argument which Raja Muhammad Hanif Khan, the learned counsel, has taken about the proceedings taken by the Arbitrators and the Umpire previously. In the estimation of the learned counsel for the Contractor, after agreement by the parties, in the Supreme Court for settlement of controversy by a sole-Arbitrator, those objections cannot now be considered. This argument of the learned counsel for the Contractor has a force and we reject all the contentions raised in respect of proceedings by the Court, the Arbitrators or the Umpire prior to the agreement of the parties in this Court for settlement of controversy through the sole-Arbitrator.

5. Raja Muhammad Hanif Khan, the learned counsel, has disputed the correctness of the award filed on 19-4-2007 by submitting an application under sections 17, 30 and 31 of the Arbitration Act and objections filed separately. In his application under sections 17, 30 and 31 of the Arbitration Act, he has submitted as under:-- (a) That since the High Court has set aside the decree passed by the District Judge on 2-3-2006, which was challenged by the Employer and the Contractor in the Supreme Court, the awards of previously appointed Arbitrators and the Umpire have become non-existent, therefore, could not be considered or looked into by the sole-Arbitrator appointed by the Supreme Court. (b) That the learned Arbitrator initiated the proceedings and directed the parties to produce evidence in support of their respective contentions but Muhammad Hanif Usmani, representative of Messrs Ameen General Enterprises, made a statement before the Arbitrator that he does not want to produce evidence in support of his claim except his own statement, therefore, the appellant, Azad Jammu and Kashmir Government, did not feel proper to produce any evidence. (c) That the Arbitrator has not considered the case of the Azad Jammu and Kashmir Government in the light of agreement dated 18-8-1994 nor has mentioned as to what was the case of the Government and on the other hand the material placed on the record by the Contractor has been considered although it consisted of photocopies of some of the documents. While developing his argument that the Arbitrator has committed legal misconduct rendering the award to be unlawful, he submitted that the documentary evidence annexed with the written statement filed in the trial Court and the clauses of the agreement have not been considered. (d) That the award of the sole-Arbitrator is only based on the findings recorded by Ch. 'Sadaqat Ali, who was nominated by the Contractor which under law could not be made, a basis for award by the Arbitrator appointed by the Supreme Court. The Supreme Court has appointed the sole-Arbitrator to hold an inquiry to look into the correctness of the claim of the parties. Similarly the report of an Engineer which is at pages 43 and 45 of the file of the trial Court, which under law and in view of the statement by the representative of the Contractor Firm could not be relied upon. In order to prove the correctness of the said report, the scribe of the report was not examined as witness. As the photocopies could not be relied upon under law, the Arbitrator- committed legal misconduct. In his estimation the, sole-Arbitrator has not applied his independent mind to form his own opinion. The details about commencement of work have neither been provided nor proved by the Contractor Firm. Similarly the letters dated 8-9-1994 and 22-9-1994 sent by the officials of the Hydroelectric Board were admitted but were not taken into consideration by the Arbitrator. In this view of the matter unless the Contractor Firm proves on which date it took over the site of the project and upto which date it could not start the work of the Project due to non-availability of drawing, its claim could not be accepted and accordingly granted. So far as the drawings are concerned, they were to be drawn by the Contractor and got approved by the Engineers, as the Contractor admits that it has not drawn the drawings, it could not claim any cost on this ground. Furthermore as no notice was given by the contractor as, provided by clause 6(3) of the deed of agreement, the Arbitrator committed misconduct while ignoring these facts. (f) As the parties were to be governed by the terms of the agreement, the Arbitrator acted beyond the scope of the agreement which is also a misconduct. (g) That the case of the Employer has not been taken into consideration, therefore, there being no evidence, different clauses of the agreement-deed have not been followed by the Arbitrator, award has been recorded without following the procedure laid down for and without recording any reason renders the award as invalid. (h) That representative of the Firm has admitted in his statement dated 12-12-2006 that every thing was to be done by the parties according to the contract agreement and nothing beyond the agreement would be undertaken. In this view of the matter the Arbitrator was bound to record the award by categorically mentioning as to how and in what manner the agreement was violated. The Arbitrator has acted beyond the scope of agreement. He has committed a legal misconduct. (i) The Arbitrator granted a claim of Rs.16,38,335 while relying on clause 20/4(H) of the agreement by holding that due to major flood on 25-7-1995 a part of the completed weir was damaged. In this respect the Arbitrator considered irrelevant letters which were related to performance guarantee and the letters do not refer to the insurance policy. The letters dated 26-5-1995 and 30-8-1997 clearly refer that in order to produce the performance guarantee, the Contractor should provide the names of insurance companies, performance bond, the performance bond is dealt under clause 10/1 of the agreement and as far insurance of work of performance guarantee is concerned, the stand of Azad Jammu and Kashmir Government was that the damage in question was to be borne by insurance company and not the Hydroelectric Board. The failure on the part of Contractor to enter into insurance work of the contract without mentioning National Insurance Corporation of Pakistan is sufficient proof that the employer cannot be held responsible for any loss in spite of the fact that representative of the Firm admitted that it was one of the terms of Contract, the Arbitrator committed misconduct by granting the amount of Rs.16,38,935. (j) In respect of claim of Rs.21,32,018 under para. 5 of the suit, the Arbitrator has not considered the case of the Hydroelectric Board and Azad Jammu and Kashmir Government, which was categorically pleaded in written statement. The Arbitrator based his opinion on the award of Ch. Sadaqat Ali and did not apply his own mind to this effect. A perusal of para 4 of the plaint would reveal that under the afore-said head the claim of Contractor was paid but later on this claim was reduced to the tune of Rs.2,06,

980. The amount under this head has wrongly been calculated and granted without recording any reason, the Arbitrator has committed legal misconduct. Similarly the claim made by the Firm in para 7 of the suit has wrongly been granted by the Arbitrator to the tune of Rs.62,99,

157. The Arbitrator has relied on clauses 70/1 and 70/4 of the agreement but he has ignored the clauses 73 and

74. As clause 74 provides comprehensive procedure, which has not been adopted, the Arbitrator has illegally granted Rs.62,99,

157. The Arbitrator was bound to consider clauses 70/5, 70/7 and 70/8. The granted increase in the contract price having not been verified by the Engineer could not be allowed. (k) Objection to the claim of the Firm and award by the Arbitrator as narrated in para. 9 of the plaint, claim of Rs.9,12,458 has wrongly been allowed under clause 52/3 of the agreement. The Arbitrator was bound before granting claim under clause 52/3 to consider clauses 51/1, 51/2, 52/1, 52/2 of the contract agreement. In addition the NESPAK having not verified the claim of the Contractor under clause 53, the Arbitrator has committed a legal misconduct. The claim of Rs.26,00,000 granted under para 10 of the plaint is also incorrect as the opinion of the Engineer has not been obtained in respect of taking over of any work completed. The Contractor has admitted that the Board cannot use weir unless the `intake' and `fobay' along, with power house is not completed. (l) That the grant of Rs.680,74,39 in para 8 of the suit is incorrect as he has wrongly applied the clauses of the Contract agreement as the said clauses were replaced by the amended agreement and it has specifically been provided that the Contractor shall file 6 copies to the Chief Engineer for interim payment. The claim can be accepted only after completion of that procedure. The Arbitrator having ignored these amended clauses has committed a legal misconduct. (m) As far the claim made in para 16 of the plaint in respect of special damages is concerned, it has wrongly been granted as the Contractor has failed to prove any violation under any clause of the agreement. In his statement recorded on 12-12-2006 he has himself admitted violation of the contract by stating that he failed to provide performance bond as per clause 10 of the agreement. Similarly he has admitted that he has failed to comply with clause 21 of the agreement which deals with insurance of work. The Contactor has admitted that he has not filed the `Record Drawings", he cannot claim the captioned amount. There being no certificate by the Engineer Nespak Ltd. no question of admission of any claim, bill or work done arises and the learned Arbitrator has committed misconduct in view of the fact that this objection was categorically taken before him during the course of arguments. The stand of Contractor that he repeatedly wrote letters to the Hydroelectric Board about some of his claims, having not been sent through prepared registered post and this fact having been admitted by the Firm, the Contractor, could not file suit for recovery of the claim. (n) Award of the Arbitrator is based on no evidence whereas the Azad Jammu and Kashmir Government and Hydroelectric Board have filed detailed written statement and have denied all facts pleaded by the Firm. Finding of the learned Arbitrator is perverse. The Arbitrator was bound under law to follow the laid down procedure. He has, therefore, committed legal misconduct sufficient to set aside the award.

6. To substantiate his above-referred objections, Raja Muhammad Hanif Khan, the learned counsel for Azad Jammu and Kashmir Government and others, has relied upon the cases reported as under: (i) Government of N.-W.F.P. through Secretary Forests, Peshawar, and others v. Azizur Rehman 1991 MLD 422; (ii) Amin Jute Baling Co. Ltd. v. Aminpur Union Co-operative Multipurpose Society Ltd. PLD 1961 Dacca 102; (iii) Muhammad Iqbal v. P.I.D.C. 2000 CLC 876; (iv) M. Aslam Amin v. Muhammad Ali Khan and another 1995 CLC 1795; (v) Messrs Muhammad Amin Muhammad Bashir Ltd. v. Messrs Khairpur Textile Mills Ltd. 1985 CLC 1398; (vi) Maj. (R) Humayun Akhtar v. Pakistan Defence Officers Housing Authority PLD 2002 Karachi 427; (vii) National Bank of Pakistan v. Messrs Oriental Fashions Limited, and others 1992 MLD 1063; (viii) Muhammad Rashid Khan v. Noor Muhammad Khan and 2 others 2002 CLC 749.

7. As far the objections separately filed by Raja Muhammad Hanif Khan, the learned counsel, are concerned, they are only repetition of the grounds stated in application under sections 19, 30 and 31 of the Arbitration Act. With these objections he has assailed the correctness of the award by referring to some other terms of the Contract.

8. In the light of objections filed by the Employer and written arguments placed on record by the parties, we now advert to the award recorded by the sole-Arbitrator on 19-4-2007. The claim of Rs.3,36,000 has been accepted by the Arbitrator to the extent of Rs.70,

000. The 'Arbitrator while dealing with the factual controversy as to whether the drawings were supplied in time has relied upon a report by an Assistant Engineer on 15-11-1997 which has been addressed to Managing Director Hydroelectric Board. This report has been confirmed to be correct by the Deputy Director Hydroelectric Board as well and is placed at pages 43 to 45 of the paper-book. From para. 3 of this report it is abundantly clear that construction of weir was delayed because of late submission of weir design by the Consultant. The Arbitrator has also referred to relevant clause of the Contract Agreement and after coming to the conclusion that the required drawings were not supplied to the Contractor till January, 1995, awarded Rs.70,000 to the Contractor for the costs of payment to the manual labour and administrative staff engaged by the Contractor. During perusal of the record we have noted that a letter was written by the Contractor, a facsimile of which is at page 28 of the file, which clearly reveals that working designs were not provided to the Contractor in time. In this letter the Contractor has also mentioned that he has collected some material to start execution of the Contract. This letter is dated 1-12-1994. The employer has also accepted in his written statement that the staff of the Firm was also available at site at the relevant time. So in our opinion, the Arbitrator has not violated any law or considered any fact which is not part of the record. The objection of Raja Muhammad Hanif Khan, the learned counsel, that the specific date has not been mentioned through correspondence by the Contractor when he shifted his labour and material at the site and failed to start the work due to non-availability of drawing is devoid of any force. The record clearly revels that construction drawings were not provided to the Contractor in time with the result that in the months of December, 1994 and January, 1995 his staff remained idle. Even otherwise the record is very clear that Rs.70,000 awarded to the Contractor is in respect of two months pay of staff of the Contractor.

9. When construction drawings were supplied to the Contractor, he initiated construction of the weir but before completion of it in the working season it remained incomplete and on account of heavy- flood, partly work done was washed away. The Contractor in this respect claimed Rs.16,38,935 on the ground that the working drawings were not provided in time, therefore, the Firm under relevant clauses of the agreement is entitled to get the amount as partially done work was not insured. The Employer on this point pleaded in defence that as the Firm failed to complete the work within time, it could not claim the loss caused by heavy flood. The Employer in this respect placed reliance on clause 20.4, sub-clause (H). The learned Arbitrator after considering the respective arguments held that the loss was caused due to omission and failure of the Employer to provide working drawings in time. The Arbitrator while determining the claim held that the loss was not caused due to any fault of the Firm. This is correct that in this respect the .Arbitrator referred to the findings of the Umpire recorded previously wherein the Umpire, who was also a senior District Judge, held that the Firm is entitled to the total claim. Stand of the parties having been considered by the Arbitrator while dealing with this part of the claim, we feel that no misconduct has been committed by the Arbitrator, nor his finding against the record.

10. Now coming to the claim of the Contractor in respect of special arrangements for shifting of material to the place of construction/site, the Contractor has contended that Neelum Valley Road remained closed due to Indian firing with the result that he had to pay additional amount for carriage of the material. The Hydroelectric Board was informed about the additional claim and even it compensated the Contractor to some extent and paid Rs.1.99 and Rs.1.19 per kilogram from November, 1994 with the understanding that rates shall be determined at the time of final bill but arbitrarily deductions were made in the 6th, 7th and 9th running bills and the bill of the appellant-Firm of Rs.28,90,476 was rejected and only Rs.2,06,980 were accepted. The Employer in this respect did not deny the fact of Indian firing during the period of November, 1994 to May, 1995. The employer only contended that this additional cost of transportation was included in the original contract agreement. The learned Arbitrator after going through the record allowed the claim to the extent of Rs.21,32,

018. He in this respect based his findings on the statement of representative of the Firm, averments of the written statement, different clauses of the agreement-deed and the report of Umpire and one of the Arbitrators previously appointed by the District Judge. The Arbitrator also referred to the report of previously nominated Arbitrator Ch. Muhammad Zaman, who also admitted that the Contractor/Firm has spent additional amount for the purpose of carriage through alternate route and means. We have also gone through the note recorded by the Managing Director Hydroelectric Board, which is at page 205 annexed as "DD/2". The Managing partner of the Firm has denied the existence of this note through his letter which is at page

74. In his this letter he has submitted as under:-- "During a visit to your office we learnt of a note on the file while processing tender, mentioning of the' use of bypass and we take this opportunity to categorically state that the use of bypass was never discussed and no one can think of closure of main access road by the Indian Army as knowledge of their intention is unthinkable. Moreover Leswa bypass was not existing at the time of tender or work order."

11. Even otherwise the document has not been signed by the Managing Director Hydroelectric Board and is written in Urdu nor does it possess any date, therefore, we entertain no doubt that the cost claimed was not included in the agreement-deed/contract. Had it been a part of the Contract-agreement, it would have been signed by the Contractor as well. We may also mention it here that even if this letter was part of the original contract it was responsibility of the employer to prove it by producing the Managing Director Hydroelectric Board as witness. The claim allowed by the Arbitrator to this extent, therefore, does not suffer from any legal or factual flaw.

12. The Contractor claimed Rs.30,02,179 on the ground that it was agreed between him and the Employer that 76 feet land will be acquired along with processed water channel. This claim of the Firm has not been accepted by the sole-Arbitrator, therefore, we need not look into the validity of the findings.

13. As far the claim of Rs.1,12,44,590 is concerned, the Contractor in this respect while placing reliance on clauses 70.1 and 70.4 prayed for the payment of the same. It is in fact a claim on the basis of escalation of prices of different material and labour wages. It appears from the record that some payments have been made according to demand of the Contractor but the same have been refused in respect of additional work done by the Contractor on the, ground that it can be claimed only up to the completion period of the Contract and that also according to statistical bulletin and increase of wages announced by the Azad Jammu and Kashmir Wage Board. The Arbitrator in this respect has held that the respondent-employer has not categorically denied the contents of para 7 of the suit filed by the Contractor. He has allowed the claim of the Contractor to the extent of Rs.62,99,157 while relying upon escalation amount worked out by the formerly appointed one of the Arbitrators Ch. Sadaqat Ali. This hardly needs any mention that price hiking has always been a common phenomenon in this country. As has categorically been detailed in the running bill by the Contractor, the price of different items and the labour charges have all along been increasing. The Employer has been paying these escalations without recording any reason for refusing the total claim. In any case it was the responsibility of the Employer to consider the correctness of the claim when it was placed before him or the concerned Engineer at the very outset.

14. Now coming to the claim of Rs.13,63,718 which has been filed by the Contractor on the strength of clause 52.3 of the Contract agreement. The employer has not categorically denied this claim of overhead charges, the Arbitrator has partly accepted this claim of the Contractor. The objection by the learned counsel for the Employer that claim under clause 52.3 can only be considered if the formalities of agreement-deed under clauses 52.1 and 52.2 are complied with and as no notice was given by the Contractor, he cannot claim the said overhead charges. The Arbitrator has rightly held that notice is not necessary so far as the claim under clause 52.3 is concerned.

15. Clause 52.3 deals with variations exceeding 15% and has to be adhered to at the time of taking over certificate for the whole of the work and if it is found that as a result of all varied work valued under sub-clauses 52.1 and 52:2 and all adjustments upon measurements of estimated quantities set out in the bill of quantities excluding provisional sums and adjustments of price, are justified the same can be allowed.

16. This in fact deals with the subject of effective price only and no notice is required. The learned counsel for the employer appears to have misunderstood the procedure laid down for claims which have been dealt under clause 53.1 to clause 53.5 of the Contract agreement. Even if the claim of the Contractor is considered to be under the clauses dealing with the procedure for claims, the claim of the Contractor cannot still be rejected on the ground that he has not given notice of the claim as provided by. clause 53.1. Clauses 53.1 to 53.5 are to be read along with sub-clause 67.3 which deals with assessing the claim by the Arbitrator. The Arbitrator has rightly granted Rs.9,12,458 @ 10% against the overhead charges. The Arbitrator in this respect has considered the claims while keeping in view the percentage fixed by different Provincial Governments of Pakistan and other authorities like WAPDA and National Highway.

17. As far the claim of Rs.26,00,000 in respect of flood damages is concerned, the Arbitrator while discussing different clauses of the agreement-deed has held that deduction so made is illegal. In this respect he has relied upon clauses 48.1, 49.3 and 51.1, accumulative effect of which is that the Contractor can be held liable if during defect liability period, the Engineer issued a notice to the Contractor which having not been issued to the Contractor the deduction of Rs.26,00,000 has not been legally ordered. We do not entertain any deviation by the Arbitrator in this respect While considering the claim of the Contractor the record which includes certain letters by the Contractor have also been considered and accumulative effect of different clauses allotted due weight.

18. As far the claim of Rs.68,07,439 is concerned, it is in respect of profit of unpaid sums. The Arbitrator while referring to different dates of filing of bills has accepted this claim. The Arbitrator in this respect has placed reliance on a note written by the Managing Director Hydroelectric Board on 9-12-1997 in which provisional payment of Rs.5 million has been recommended.

19. After accepting certain claims of the Contractor the Arbitrator has issued a total award of Rs.2,92,09,

758. This claim does not include damages which have been prayed by the appellant-Contractor in para 16 of his suit. Nutshell of the award is that the Arbitrator has granted Rs.1,20,18,286 with 10% profit under clause 60.10. This claim does not include the damages of Rs.10 Million for defamation as pleaded by the Contractor. The Arbitrator has not recorded any award and the claim made by the Contractor has been left for consideration by this Court. We may here hold, without any detailed discussion, that this claim according to our own study cannot be accepted as it is not covered by the terms of agreement entered into by the parties. The claim of the Contractor, therefore, stands rejected.

20. Now adverting to the accepted and allowed claim by the Arbitrator to the tune of Rs.1,20,19,985 this amount includes outstanding of final bill filed by the Contractor amounting to Rs.46,95,

878. As this amount has been accepted by the official employer and has been signed by the Deputy Director, SDO and a Sub-Engineer, no evidence is required as the same is proved from record. This final bill has been placed on record, a facsimile of which is at pages 118 to

152. The remaining amount of Rs.1,10,52,566 has been awarded by the Arbitrator against different claims made by the Contractor in his suit. After calculating the different claims and the adjustments made, the Arbitrator has awarded the claim of the Contractor Firm to the tune of Rs.2,92,09,758 subject to adjustments made after filing of suit or award by him. So far as the point No.1 referred to the Arbitrator is concerned, we hold that the Arbitrator has recorded the award keeping in view the terms of agreement and available record.

21. Now coming to issue No.2, suffice it to say that the Arbitrator has held that the suit of the appellant is maintainable. In this respect he has placed reliance on the case reported as Messrs Sainjee Cargo Services v. Messrs Cargo Movers and others 1989 CLC 2229 and we entertain no doubt that the controversy basically brought before the Court was of a civil nature triable by a civil Court. Even otherwise after issuance of the Notification placed on record by the learned counsel, Raja Muhammad Hanif Khan, that respondent Government has agreed for settlement of the dispute through arbitration, there remains less total in the credit of the respondent employers to defend their stand to the extent of maintainability of the suit. The Courts of law do not recognize somersaults and u-turns while pleading or defending a lis in the Court.

22. The learned counsel for the parties have referred umpteen number of judgments to supply support to their arguments. In the case reported as Government of N.-W.F.P. v. Aziz-ur-Rehman 1991 MLD 422, it was held that award would attract interference if it is found that the Arbitrator had ignored important evidence and had returned a verdict which was in conflict with evidence on record. Finding of Arbitrator should be based on evidence as the Arbitrator is obliged to return an award and not an opinion. Award which had not basis in law and was rather clearly unjust being opposed to evidence on record could not be divine word so as to render the Court helpless to strike as arbitrary conclusion of the Arbitrator. In the case reported as Amin Jute Baling Co. Ltd. v. Aminpur Union Cooperative Multipurpose Society Ltd. PLD 1961 Dacca 102, it was laid down that section 35 of the Stamps Act prohibited a Court from admitting in evidence an instrument which in its view is not duly stamped and also prohibits the Courts from acting on such document, if the Court wrongly admits such document, the appellate Court is prevented by section 36 of the Act calling in question the admission in evidence of such instrument. It was further held that Arbitrators must remember that they determine the matter referred to them judicially. They should, therefore, go into evidence when the nature of dispute requires it. If they decide such disputed questions without going into evidence they might be guilty of misconduct. Deciding disputed question of fact without material or evidence are not questions of technicality or mere irregularity, it amounts to illegality which may vitiate the award. In the case reported as Muhammad Iqbal v. P.I.D.C. 2000 CLC 876 it was held that where the conclusion drawn by Arbitrator was perverse or reasons given by him neither based on evidence produced before the Arbitrator nor on the law applicable on the subject, such award could be interfered with on the ground of misconduct, Where conclusions drawn by the Arbitrator were perverse or the view taken by him was bad in law or was inconsistent or in total departure from evidence of the parties, Court dealing with objection to the award did possess jurisdiction to interfere in the award. The Arbitrator failed to give any reason for the conclusion drawn and the award did not indicate the fact as to how the conclusion formed by the Arbitrator was reached and how the documents in the light of the facts of the case were dealt with by the Arbitrator. The High Court remitted the award to the Arbitrator accordingly. In the case reported as M. Aslam Amin v. Muhammad Ali Khan 1995 CLC 1795 it has been held that facts relating to import specified goods including import of ascertained goods and the fact that such goods were imported as Benami were not proved on record on the basis of evidence. The reading of award would show that the Umpire did not take into consideration any material on the basis of which award in question could be sustained. Import license and pro forma invoice showed that export of goods in question were in favour of some other firm and not the firm claiming specified amount due to it. The umpire and also the trial Court had miserably or deliberately lost sight of the fact that no evidence was on record in support of the award. Award was set aside. In the case reported as Messrs Muhammad Amin Muhammad Bashir v. Messrs Khairpur Textile Mills Ltd. 1985 CLC 1398 while dealing with Arbitration award it was held that damages granted by the Umpire to the plaintiff on the basis of Photostat copy of certificate which was admitted in evidence by Arbitrator behind the back of defendant without formally examining witness producing such certificate and without affording opportunity of cross-examination to defendant, held in violation of principle of natural justice and Arbitrators committed misconduct in accepting such certificate. Arbitrators though not bound by technical rule of procedure yet are not permitted to act in violation of principles of natural justice. Damages granted by Umpire to plaintiff on the basis of original contract which was no more alive for enforcement. Award of damages held illegal. The facts of the case were that two contracts for purchase of cotton bales were entered into between the parties on 3rd and 4th September, 1973, respectively. The first contract related to the sale of 361 bales of ACRGD quality of cotton and 260 bales of BESGD of cotton, while the second contract related to 3356 cotton bales LSSRG quality. The condition of the above contracts was that the weighment of the goods was to commence' immediately and cotton was to be removed from the sellers' place after making full payment by 15th October, 1973. It is admitted position that out of the total contracted quantity of 3977 bales of cotton only 3717 bales of cotton no delivery at all was taken by the defendant up to 15-10-1975. However, under a subsequent arrangement arrived at between the parties the defendant took delivery of only 2000 bales up to 19th July, 1974 and thereafter delivery of 1717 bales of cotton was not taken. The case of the plaintiff was that after expiry of the period mentioned in the contract dated 3-9-1973 and 4-9-1973 the time was extended from time to time at the request of the defendant who failed to lift the entire quantity of contracted bales. The defendant contended that the plaintiff failed to deliver the contracted quantity and urged that the original contracts were substituted by a new contract under which the defendant took delivery of 2000 bales up to 19-7-1974. In the case reported as Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority PLD 2002 Karachi 427, it' was held that if the award leaves any of the matters which were referred to arbitration, undetermined, a part of the award upon a matter which was not referred to arbitrator and that part cannot be separated from the remaining part without affecting the decision of the matter which was referred to Arbitrator. The award is so indefinite as to be capable of execution and there is an objection to the legality of the award. It was further held that the defendants had ample opportunities to raise the' objections to the issues, time period and evidence during the proceedings, but they actively participated without raising any objection also consented to enlargement of time. After the award was filed in Court, the defendant raised many objections and contended that the award be set aside. Objections to award were not to be heard as an appeal. Award was made rule of the Court in the circumstances. In the case reported as Muhammad Ashraf v. Syed Ghulam Murtaza and others 1992 MLD 1063, it has been held that document not properly produced in evidence can be looked into if such document is properly available on record. Photocopy of order which was not produced in original nor exhibited by trial Court, can be considered by trial Court and appellate Court. In the case reported as Muhammad Rashid v. Noor Muhammad Khan 2002 CLC 749, it was held that an attested copy of mutation was admitted and read into evidence by the trial Court and the first appellate Court without any objection by the respondents, the same cannot be excluded from the evidence merely because the same was not exhibited, the non-exhibiting of a document which is otherwise admissible in evidence is merely an irregularity and does not render such a document as inadmissible in evidence.

23. After going through the facts and the findings recorded by the Courts in relied judgments and even our own study it reveals that the Arbitrator or for that matter, the Court cannot record award or a decree in respect of any claim which is not covered by the terms of agreement between the parties and has not been referred to the Arbitrator by the Court and is allowed without any evidence available. In the case reported as M. Aslam Amin v. Muhammad Ali Khan 1995 CLC 1795, the Umpire failed to consider that import license and pro forma invoice clearly showed that export of goods in question were in favour of some other Firm and not the Firm claiming specified amount due to it. The award recorded was invalid on this ground. We, therefore, do not dispute the correctness of these findings but this case is not applicable to the facts of the controversy before us. Similarly as far the argument of the learned counsel for the Employer that the Arbitrator has relied upon photocopies. or the findings recorded by the courts and the Arbitrators is concerned, we do not entertain any second opinion to hold that these photocopies or any other correspondence relied upon by the parties could be taken into consideration by the Arbitrator as in our considered view the proceedings before the Arbitrator are not of the nature where a claim of a plaintiff or defendant is denied, on the basis of web of technicalities and cumbersome procedure laid down by the Evidence Act or the Civil Procedure Code. The Arbitrator has recorded the award after going through the available record and considering respective contentions of the parties; he has not travelled beyond the terms of contract. As award cannot be termed as invalid and the Arbitrator has not committed any misconduct, therefore, following the case-law laid down by time and again judgments by the superior Courts of the country, the award of the arbitrator is not found invalid.

24. The whole purpose of the Arbitrator Act is to provide a domestic Tribunal for settlement of disputes by and between the parties to provide expeditious relief, unhampered by rules of procedure laid down in the Civil Procedure Code and the Evidence Act. In this view of the matter Arbitration proceedings are in fact conciliatory in nature and the Arbitrator in fact is a person in whom the parties repose their confidence. Award filed by an Arbitrator is, therefore, an amicable settlement of disputes between the parties which has to be honoured by the Court unless it suffers from any defect provided by the Arbitration Act. It may also be mentioned here that even if the objections are not filed the Court under the provisions of the Arbitration Act is bound to determine the validity or otherwise of the award on facts and impartial conduct of the Arbitrator subject to the legal obligation to protect the award unless the same suffers from an apparent illegality or any other legal flaw floating upon the very surface of the award. Section 17 of the Arbitration Act deals with delivering the judgment according to the award after being satisfied that there is no cause to remit the award or any of the matters referred to arbitration for consideration or to set aside the award. Section 30 deals with setting aside the award recorded by the Arbitrator on the following grounds only:-- (i) if the Arbitrator has committed misconduct; (ii) the award has been made after issue of order by the Court superseding the arbitration or after arbitration proceedings become invalid under section 35; and (iii) the award has been invalidly procured or is otherwise invalid.

25. Section 31 deals with the jurisdiction and provides that all the questions regarding validity of award and other matters referred therein including the filing of application shall be decided by a Court. This section in fact excludes the jurisdiction of any other Court except the Court in which the award has been filed. A combined reading of these provisions makes it abundantly clear that in spite of legal sanctity attached to the award filed by the Arbitrator, the Court is legally bound to consider the controversy, procedure and proceedings conducted by the Arbitrator, the pleadings and the evidence produced by the parties and reasons for awarding a claim or disallowing the same. We, therefore, proceed to summarize the facts of the case in light of the record made available to the Arbitrator. The suit was filed by the Contractor for recovery of an amount of Rs.3,39,67,

353. The Firm, in its suit, has categorically given details for its losses and compensation claimed. The Firm, under clause 6.4 of the Contract Agreement, demanded a sum of Rs.3,36,000 for the delay for not providing drawing to it, to commence the work allotted to it. In para 4 of the suit the Firm has also demanded a sum of Rs.16,38,935 under clause 20.4(h) `Natural Calamity' of the Contract Agreement, on the ground that the respondents did not take any step regarding insurance of the completed work and only nine days before the insurance was accorded, on account of a major flood a part of the completed weir was damaged. On the basis of this damage the Firm is entitled to Rs.16,38,935 as compensation. In para 5 of the suit the Firm while referring to the different clauses of the Contract, demanded Rs.28,90,476 under clause 12.2 of the Contract Agreement on the basis of transport/carriage charges and difficulties in transportation caused by heavy Indian shelling across the Line of Control. The Firm in para 6 claimed an amount of Rs.3,02,179 for payment of produces/faslana to the land-owners, from whom land was acquired for dumping the excavated material and bearing the expenses of clearing the land on completion of the Project. Through para 7 of the suit the Firm claimed Rs.1,12,44,599 under clauses 70.1 and 70.4 of the Contract Agreement, on the ground of price adjustment/fluctuation in prices. According to the Firm the rates set out in the tender were as much as Rs.1500 per month for unskilled labour which had nothing to do with the rates of Industrial workers as fixed by the Minimum Wage Board. On the basis of natural principle of demand and supply the wages increased after commencement of the work of Kundal-Shahi Jagran Road and Jagran Hydel Project by Messrs SCANSKA and the Firm had to get the labour from Dir area @ 120 per day. According to the Firm as the Hydroelectric Board failed to settle down the interim payments within prescribed period of time, the Firm had to complete the remaining work by getting loan @ Re.0.60 per thousand per day as interest, therefore, the Firm 'is entitled to Rs.68,07,439 as interest from the other party under 'clause 60.5 of the Agreement. The claim has been put up through para No.8 of the suit. The next claim of the Firm is under clause 52.3 of the Contract Agreement through para 9 of the suit, whereby the Firm asks for Rs.13,63,718 for Contractor's over-head and other expenses, if the Contract price is increased by more than 15%. The Contractor Firm in para 17 of the suit categorically submitted its claim with full description of expenditure under 'different heads and forwarded a total claim of Rs.3,39,67,

353. The AJ&K Hydroelectric Board in its para-wise reply has denied the claim of the Firm. Rejecting the assertion regarding supply of drawing, the Board stated that the Firm did not fully mobilize to the site but only four persons were deputed to do some work. The Board further stated that the Firm had to start the work as per site condition, since the design was adequate no major change was made except core-wall. Only the Firm was responsible for delay, not the Hydroelectric Board. As far damage occurred to completed weir by the flood is concerned, the Board stated that the Firm launched its working late, therefore, on commencement of summer season the snow started melting which caused damage to a small part of uncompleted weir. The Hydroelectric Board was not responsible 'for damage nor the same occurred due to natural calamity. The Firm had to study hydrological and other relevant data before launching its work, which was not done, hence the Firm is not entitled to any compensation whatsoever under the referred clause, specially if it is read together with some other clauses of the contract agreement. As far the extra transportation charges claimed by the Firm are concerned, the Hydroelectric Board referring to a note submitted by the Managing Director HEB to Chairman HEB, submitted that the Firm had already been compensated @ 20% more charges in this regard keeping in view the ground realities and climatic situation. Now the Firm cannot claim any extra charges under, any clause of the agreement, hence the claim was rejected. As far the claim regarding "faslana' is concerned, the Board submitted that 1/3rd of the project work was allotted to the Firm and the land acquired for the project was not necessary to be equal from the central line of project rather it depended upon the site conditions and type of project. Furthermore no, extra charges for excavation and its disposition were available. Disposition of excavated material upto 1 mile was included in the agreed rates, hence the claim was rejected. Claim of the Firm for fluctuation in prices was also rejected by the Board submitting that prices of construction material and fuel are fixed by the Government of Pakistan from time to time whereas labour charges are not, as the same vary from area to area and are fixed by the Provincial Governments. The site of work and place of signing the agreement is within jurisdiction of AJ&K Government, where the wages fixed by the AJ&K Government are applicable. The rates of material and labour charges fixed so by the competent authority only 30 days before signing of contract have been entered in the contract agreement. According to the Hydroelectric Board the Firm is only entitled to claim the increasing rates till June, 1995, when the project was to be completed, therefore, after June, 1995 every claim of the firm regarding price hike/fluctuation was dismissed by the Board. Claim of the Firm for interest @ Re.0.60 per Rs.1000 daily has also been rejected on the ground that the Firm did not submit the Draft Statement of Final account to the Engineer as was the requirement of relevant clauses and was agreed upon by the parties, hence the Firm is disentitled to its claim. The last fiscal claim of the Firm regarding overhead and other expenses, has also been turned down by the Hydroelectric Board on the ground that before commencement of varied work neither the Contractor nor the Engineer indicated any intention to claim extra payment or varied rate or price, therefore, it was mutually understood to do the work exceeding 15% of the contract quantities at no rates other than as per contractors quoted rates as per tenders. Since, the Contractor knew that his rates were already, very high and it was in his interest to continue the work exceeding 15% up to any possible extent within the same rates, the claim was, therefore, rejected. A letter written by the Employer, a facsimile of which is at page 28 of the file, reveals that working drawings were not provided to the Contractor in time. In this letter the Contractor has also mentioned that he has collected some material to start the execution of Contract. This letter is dated 1-12-1994. The Contractor for redress of his grievance subsequently brought before the Court applied to the Prime Minister of the time who ordered the Managing Director Hydroelectric Board for payment of work done. The Prime Minister also directed for preparation of revised scheme. The direction of the Prime Minister is at page 47 of record of the Civil Court where the suit was filed. It also reveals from the record that the case was taken up by the Minister, who through detailed report, a copy of which is at page 54, recommended the payment as claimed by the Contractor but subsequent record reveals that the Employer/Board constituted a sub-Committee to settle the controversy. An application was also filed on 3-7-1998 to the Prime Minister with the prayer that concerned functionaries be directed to pay the claim. Another letter which has been placed at page 170 also reveals that the matter was repeatedly taken to the Managing Director for settlement of disputes amicably or initiate the arbitration. A letter also finds mention at page 74 wherein, among others the Contractor has categorically stated that during visit of the Office of Managing Director Hydroelectric Board he learnt about a note on the file in which it has been mentioned that bypass road shall be used for carriage purposes. This letter by the Contractor is reproduced herein below:-- "In reference to the captioned project, we are enclosing herewith our 11th final claim for early settlement. This claim does not include the market rate interest on the delayed payment of our 10th and final claim, which would be submitted after the settlement of these claims. During a visit to your office, we learnt of a note on the file while processing the tender, mentioned of the use of bypass and we take this opportunity to categorically state that the use of bypass was never discussed and no one could think of closure of the main access road by Indian army, as knowledge of their intentions is unthinkable. Moreover, Leswa bypass was not existing at the time of tender work order." A note admittedly signed by the Managing" Director Hydroelectric Board is also reproduced herein below:-- Deputy Director Neelum Valley through his letter dated 19-5-1996 addressed to the Contractor/Firm has ensured about payment of his bills against the work done after approval of PC-I.

26. The relevant clauses clearly provide that the Contractor has to be compensated in such cases. It is settled proposition of law that in such like cases the arbitrator or the Court has to determine on whose foot the shoe lies.

27. The responsibility can be determined by respective stand and position of the parties. Admittedly drawings were supplied late in the day, Neelum Valley Road remained close due to Indian firing, bypass road was used, a part of the completed weir was damaged due to a heavy flood and market price of the material increased after 1995. The claim of the appellant in respect of different heads was partly accepted during payment of bills submitted by the Contractor but was rejected in subsequent bills. The Officers of Hydroelectric Board accepted the outstanding amount to be paid to the Contractor, the whole Project having been completed and handed over the Employer, the Officers of the Government and even the Prime Minister and the concerned Minister having accepted the claim of the Contractor, he was refused his dues by procrastinating the matter and when the case was brought before the Court, the payment of claim was procrastinated by introducing objections of technical nature. In the present case we also record it with concern that a senior District Judge, who worked as Umpire, was maligned by attributing misconduct to him and the case was brought before the High Court in appeal when the award recorded by the Umpire/Judge was made rule of the Court by another senior District Judge. WI en the ease came before this Court it was clearly submitted that the matter be referred to the sole-Arbitrator but when the sole-Arbitrator was appointed on the request of the employer, his award was also disputed by submitting that he has also committed a legal misconduct and has not applied his judicial mind. The sole-Arbitrator is also a senior District Judge of Azad Jammu and Kashmir, who cannot be blamed for tilting towards any party nor can he be maligned for having failed to apply his judicial mind. We, therefore, are of the considered opinion that the plaintiff-appellant is entitled to a decree of Rs.2,92,09,758, subject to our order recorded at the end of judgment.

28. After going through the record ourselves we have found that a huge record consisting of more than 400 letters and other correspondence has been gone through by the Arbitrators and the courts below. Where a huge record has to be examined, the superior courts of sub-Continent have avoided to declared award as invalid.

29. After detailed survey of the case-law while interpreting section 30 and section 16 of the Arbitration Act, it has been held by the Supreme Court of India in the case reported as GOA, Daman and DIU Housing Board v. Ramakant V.P. Darvotkar 1992 PSC 771 the misconduct by the Arbitrator is not constituted if the award passed by him clearly indicates that he has considered all specific issues raised by the parties and findings have been recorded after giving cogent reasons. If the award reveals these facts, it cannot be said at all that the Arbitrator has committed misconduct. The order of the High Court remitting awards back to Arbitrator for giving reasons was set aside. The Supreme Court of India in paras 12 and 13 of the report observed as under:- "

12. Section 16 empowers the Court to remit the award to the Arbitrator for reconsideration only in three cases specified therein. Claus (c) of section 16(1) provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it. Of course, the High Court has come to a finding that the Arbitrator was guilty of misconduct for his failure to give reasons as required. There is, however, nothing to show that the Arbitrator misconducted himself or the proceedings in any other manner nor there is anything to show that the awards have been improperly procured. There is no allegation, far less, any finding, that the Arbitrator was biased or unfair or he has not heard the parties or he has not fairly considered the submissions of the parties in making the awards in question. In our opinion, it is evident from the four awards made by the Arbitrator that the Arbitrator has considered all the specific issues raised by the parties in the arbitration proceedings and came to his finding after giving cogent reasons. The above awards cannot under any circumstances be considered to be made by the Arbitrator without recording any reasons for the same. Therefore, in such circumstances, it is not proper to hold that the Arbitrator has mis-conducted himself or in the proceedings in the matter of giving the awards.

13. In these circumstances, we are unable to hold that the four awards made by the Arbitrator are bad for not recording reasons. We, therefore, uphold the said awards and we do not think it necessary to decide the question as regards the scope of section 30 or section 16 of the Arbitration Act. The decision of the High Court remitting the awards back to the Arbitrator for giving reasons is set aside and the awards made by the Arbitrator are upheld. Let these awards be made rule of the Court. The appeals are, therefore, dismissed. There will- be no order as to costs." In a case reported as Province of Baluchistan through Secretary Irrigation and Power Department, Government of Baluchistan, Quetta v. Messrs Tribal Friends Company, Lot-alai through its General Manager PLD 1986 Quetta 321 while interpreting sections 13 and 20 of the Arbitration Act it has been held that the Arbitrator is competent to adopt his own procedure and not to be bound by the technicalities or cumbersome procedure applicable for disposal of case before judicial forums. It was further held that some proceedings however, obviously to be recorded and the Arbitrator also to adopt some criteria for arriving at final conclusion especially when matter at variance relates to examination of huge record concerning numerous items. Although the facts of this case were different and some points of law were disputed, the High Court clearly held that the Arbitrator has to adopt his own procedure. The relevant portion is reproduced as under:-- " .There is no cavil to the proposition of law that arbitrator can adopt his own procedure and is not bound by technicalities, or cumbersome procedure applicable for the disposal of case before judicial forums. At the same time, it cannot be assumed that arbitrator would merely grope in the dark or would decide by guess or toss. He is obviously to record some proceeding and adopt some criterion for arriving at final conclusion especially when matter at variance relates to examination of huge record concerning numerous items." In the case reported as Azad Government of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan PLD 1981 AJ&K 71, at page 77 of the report, it was observed as under:-- "Coming to 'the question of appraisal of evidence, it may be pointed out that this is a settled law that Arbitrator is not bound by the technicalities of law; neither the principle of Evidence Act nor C.P.C. are applicable to the proceedings before the Arbitrator. This Court while adjudging the validity of an award, does not sit as a Court of appeal over the Arbitrator in the sense which is normally understood in our judicial system."

30. The nutshell of the above is that the Arbitrator has accepted the claim of the Contractor Firm to the extent detailed below:-- Award under para 3 of the suit Rs.70,000 Award under para 4 of the suit Rs.1638935 Award under para 5 of the suit Rs.2132016 Award under para 7 of the suit Rs.6299157 Award under para 9 of the suit Rs.912458 Total Rs.1,10,52,566 The total outstanding amount detailed in the final bill filed by the Contractor's Firm and accepted by the Employer is Rs.46,95,878, which, when added in the award recorded by the Arbitrator, comes to Rs.1,57,48,444 subject to deductions of the amount paid to the Contractor-Firm after acceptance of the final bill and adjustment by the Experts.

31. As far the interest under clause 60-10 of the Contract-Agreement is concerned, it cannot be considered in isolation and has to apply keeping in view the other clauses of the agreement-deed particularly clauses 47 and 69 of the agreement. A combined reading of these clauses shows that the Arbitrator or for that matter the Court has to determine the responsibility for late payment of outstanding bills and determine the responsibility of the parties which has not been undertaken by the Arbitrator while settling the controversy. Even otherwise we are of the view that on account of controversy between the parties referred to hereinbefore this claim is not justified, therefore, the claim for the grant of interest under clause 60-10 of the contract-agreement is rejected and excluded from the award. On the basis of above, appeal No.12 of 2006 is dismissed and the appeal filed by the Contractor Firm is accepted and its suit is decreed to the extent of Rs.1,57,48,444 accepted by the Arbitrator. Let this award by made rule of the Court. S.A.K./167/SC(AJ&K) Appeal dismisse