2003 PLP 3321 (YLR)

2. Mr. Sami, questioned the competence and jurisdiction of this Court to hear the award. On the ground inter alia, firstly that Arbitration Act does not recognize piecemeal award, instant award according to him has not decided the entire controversy. Secondly this Court does not have pecuniary jurisdiction to hear the same. In support of his contention he has placed reliance on Civil Court (Amendment) Ordinance, 2002, whereby pecuniary jurisdiction of the District Judge has been enhanced up to Rs.30,00,

000. According to Mr. Sami, since no financial implications apparently are involved therefore, such jurisdiction cannot be assumed by this Court. In view of foregoing objection he urged that award should be remitted in terms of section 16 of the Arbitration Act for translating the manpower into the financial claim which in turn if at all could be enforced.

3. As against this Mr. Masood learned counsel for the plaintiff vehemently contends that this Court is fully competent to hear and decide the award. According to him the financial implication pursuant to this award would be within the pecuniary jurisdiction of this Court and therefore, in all fairness this Court is competent to hear and decide the subject‑matter of the controversy. He has drawn my attention to the letter of engineer whereby tentative assessment in the sum of rupees over 35,00,000 has been made in respect of the plaintiff's claim against their demand of over 20 millions, to demonstrate that in any case resultant financial implication is within competence and jurisdiction of this Court.

4. I have heard the arguments and perused the record.

5. Brief resume of facts are that parties entered into a contract for installation of 11 K.V. Distribution Lines in Nawabshah and South Sanghar. To execute said job, certain work force were employed by the plaintiff and it appears that dispute arose as to the strength of work force between the parties. Clause 67 provides two tires system of arbitration under the contract that exists between the parties. At the first stage in case of a difference of opinion decision of the Engineer is sought and in case parties are dissatisfied with the decision of Engineer, dispute is referable to the Arbitrators. In the instant case decision of Engineer was sought in terms of the contracts. Plaintiff sought Engineer's Decision:‑‑ "regarding the assessment of the‑crew strengths for his various activities. The contractor refused to accept the crew strength determined by the Engineer in assessment of the claim for idle cost." (See Arbitration File No.5, page 1) decision of the Engineer was as follows:‑‑ "Contractor's claim is to be assessed on the basis of following crew strengths as per the Contractor's Letter No.AACL/03/11KV‑NS/96089 of 7th March, 1989 for the period to 18th May, 1994. " (i) Survey 9 members (ii) Structure and Erection concerning 46 members (iii) Stringing 40 members Thereafter, for the remainder of the period of claim VII. From 19th May, 1994 to 17th March, 1995, the crew strengths are already assessed by the Engineer in his assessment 7270/3/ E50.WB.3/7337, dated 22nd November, 1997 [See Arbitrator File No. 5, page (11)]. Such decision not being acceptable to the plaintiff/contractor was referred to the arbitration and on the basis of the dispute reproduced above the arbitrator entered into reference and decided crew strength as mentioned in the conclusion of the subject award.

6. Adverting to the first objection of the learned counsel for the defendant that this award is not complete is liable to be remitted to the Arbitrator for translating the workers strength into financial proposition. Suffice to say Arbitrator could only enter into the reference and decided the controversy that was raised and urged before them arising out of the Engineer's decision. The dispute that was raised by the plaintiff before the Engineer was with regard to, the determination of the workers strength and nothing beyond.

7. Award could be remitted to the Arbitrator only when any of the situation contemplated under section 16 of the Arbitration Act exist. Any party seeking remission of the award must satisfy the Court that:‑‑ (a) The arbitrator has not decided a dispute referred for settlement; or (b) Decided a dispute not referred to arbitration in a manner' that such dispute is not separable without effecting the determination of dispute that was referred; or (c) It is indefinite to an extent that it is rendered incapable of execution; or (d) Where illegality is floating on the face of award.

8. Learned counsel for the defendant was not able to show that subject award is deficient or has left any matter referred undermined or for that matter it is indefinite nor any illegality is shown to be floating on the award. Since award, in my estimation do not fall within the net of section 16 of the Arbitration Act, so as to warrant remission.

9. In the case of Abdul Sattar Mandokhal v. Port Qasim Authority, 2001 YLR 758 where objections as to subsequent reference were raised. After referring to the definition of "Arbitration Agreement" under section 2(a) of the Act; it was held at page 762 as. follows:‑‑ "Above‑referred definition postulated submission of present or future differences, the plural use of 'difference' clearly indicates that there can be more than one difference that may arise. If such is the case then each may be subject‑matter of separate reference. It, however, depends on the nature of contract. "

10. Commercial contracts are in fact serial contracts as was held in above case, there is always a possibility of multiple difference and dispute at different point in time that could be subject‑matter of more than one reference before the Arbitrator, of course at the option of party who may intend to invoke arbitration clause, therefore, contention of Mr. Sami that there is more to be adjudicated by the Arbitrator cannot be subscribed so as to remit the award. He was not able to show that Arbitrator or for that matter Engineer was required to determine any money claim. As according to Mr. Masood such financial working would be carried out by the plaintiff and submitted to the employer after the award is made rule of the Court.

11. Even otherwise, taking the extreme case that award has decided only one aspect of the matter. Fact remains, that Engineer and Arbitrator only assume jurisdiction to decide issue or controversy that is raised in the matter agreed in the arbitration agreement. The award subject‑matter of instant proceedings is final at least on the issue in controversy raised to the extent of determining the strength of work force said to be employed by the plaintiff. According to Mr. Masood, such determination of workers strength has provided a foundation to the plaintiff to work out the financial implication. According to him, defendants would be within their right, if at all they chose to dispute such financial claim of the plaintiff when it is made and in case it is not acceptable to the defendant.

12. For the foregoing reasons first objection as to incomplete award are, not sustained.

13. Adverting to second attack on jurisdiction of this Court. It is true that apparently the Arbitrators have decided the strength of work force that was mooted before the Engineer and ultimately transformed into an award, whereby only the strength of the work force employed by the plaintiff/contractors in execution of the job, subject‑matter of the contract, was determined. Tentative assessment of financial implication could be seen from the assessment of the plaintiff claim that appears to be prima facie more than Rs.35,00,000 which is in excess of Rs.3 millions such claim falls within the jurisdiction of this Court, as far as reliance of the learned counsel on Sindh Civil Courts Ordinance, 1962 as amended by virtue of Amending Ordinance XXX of 2002 is concerned. It may be observed that, only pecuniary jurisdiction of the District Judge has been enhanced and by virtue of section 4 of the Amending Ordinance all suits, proceedings of value commensurate to the pecuniary jurisdiction of the District Judge. In terms of section 5 thereof all E such cases under value of Rs.3 millions are to be transferred and heard by the District Judge. The Amending Act does not take away jurisdiction of this Court, it merely enlarges the pecuniary jurisdiction of District Judges and other subordinate Courts. There is no cavil that this Court indeed is Court of unlimited pecuniary jurisdiction.

14. Section 15 of the Civil Procedure Code, do contemplate general rule of proprietary that, "every suit shall be instituted in the Court of lowest grade competent to try it". Such procedural requirement set out in section 15 does not rob this Court of its unfettered and unlimited pecuniary jurisdiction to decide and hear the matter which is otherwise less than its own pecuniary jurisdiction. The pecuniary jurisdiction of the Court is ordinarily determined by the valuation put upon the subject‑matter of the suit in the plaint. Where award is made without intervention of Court, as in this case, then in view of rule 282(3) of Sindh Chief Court Rules (O.S.) "It is numbered and registered as a suit". The ward is in fact formal expression of an adjudication, whereby the Arbitrator conclusively determine the issue of dispute raised in the form of reference in the matter of arbitration in terms of contract between the parties" therefore, it is not to be mistaken for a pleading, which by necessary implication requires a party to give valuation of claim in suit for determining the pecuniary jurisdiction of the Court [see Order 6, rule 3, C.P.C.] but since in this case apparently at the moment there appears to be no determination of financial implication by the Arbitrator which perhaps has given cause to the defendant to raise, such objections. In case reported as Saif‑ur‑Rehman and 2 others v. Fateh Muhammad PLD 2002 Kar. 511, I had occasion to examine the provision of West Pakistan Civil Courts Ordinance, 1962 in the contest of pecuniary jurisdiction of this Court and it was held at page 518:‑‑ "Every suit is to be instituted in Court of lowest grade competent to try it (see PLD 1974 Kar. 408). No doubt under section 15, C.P.C. there is no embargo on Court of higher grade/jurisdiction to entertain suit of lesser valuation. "

15. Though in said case the valuation was Rs.5,00,000 and at that time the jurisdiction of the District Court was up to Rs.5,00,000 the matter was returned/transferred to the learned subordinate Court on the ground that since the Court exists and the Court of higher grade will not unnecessarily burden itself with claims which are less than its pecuniary jurisdiction. But circumstances may exist where the Court of higher grade may entertain such claims as it is not outside its competence to decide the claim if at all it falls short of its pecuniary jurisdiction. Conversely is not true as a Court of lower grade may not be coated with same jurisdiction to decide matter which is beyond H its pecuniary jurisdiction. In the instant matter, now it is to be seen whether such circumstances exist where rule of proprietary as contemplated in terms of section 15 of the Code of Civil Procedure could be bartered away.

16. In cases of Award rendered in arbitration proceedings, it is to be filed in "Court having jurisdiction in the matter to which the reference relates". All other proceedings incidental or ancillary to an arbitration agreement either pre‑award or post award in terms of section 3(c) read with section 14(2) and section 31 of the Arbitration Act art to be filed and decided by the Court "where the award has been or may be filed and by no other Court".

17. As it appears from the award that it has decided a base line for the plaintiff to rest and work out its financial claim which from the record of proceedings, and from examination of the contract one can fairly assess the ultimate financial implication arising therefrom which appears to be more than rupees three millions, within the competence of this Court. If at all any dispute is raised which is most likely to arise, it will be within the pecuniary jurisdiction of this Court in case matter in hand is sent to District Court, then financial claim which as stated above is most likely to arise in subsequent arbitration proceedings will fall out of the jurisdiction of District Judge, and the then object of section 31 of the Arbitration Act would be frustrated. There is no qualm that this Court has unlimited pecuniary jurisdiction while conversely is not true therefore, in order to avoid any likely conflict of pecuniary jurisdiction in cases of arbitration, where the award is on legal or preliminary issue or is of a declaratory nature or it is an interim award, then the overall financial implication that may ultimately be involved is the determining factor for the purpose of jurisdiction, in such a situation it is to be filed in a Court which may otherwise is possessed of jurisdiction to decide major or higher claim/dispute that is likely to arise or raised under any particular contract between the parties. From the arguments of Mr. Sami, it could be safely inferred that other financial claim based on workers strength is likely to follow, for which purpose they insisted for remission of award. Under given facts and circumstances I deem proper that instant award be entertained by this Court. It may not be out of place to mention that objections raised at the time of argument today were not raised in the objections filed under sections 30/33 of the Act.

18. In my humble estimation looking at the record and proceeding tentatively I am of the view this Court could hear and decide the award subject of the instant suit and objection as to pecuniary jurisdiction, under facts and circumstances cannot be sustained. To come up on 19‑3‑2002. S.A.K./A‑479/K Objections overruled.