P L D 2006 Karachi 216 (PLP)

ANWAR ZAHEER JAMALI, J.

By our short order dated 31-1-2006, we have dismissed this appeal with costs. Reasons thereof, along with concise relevant facts, read as under.

2. The appellant, `ARIP', and respondent, had entered into an agreement on 25-7-1992, whereunder ARIP was granted license by C.A.A. to run "Duty Free Shops" at the Quaid-e-Azam International Airport for a period of 10 years, with its commencement date from 1-12-1992. Besides, other stipulations made in the agreement appellant was required to pay a sum of Rs.1.00 Million per annum as licence fee to the respondent. On 3-8-1992 two other similar agreements were also executed between the parties in furtherance of the main agreement, referred by the Umpire in his award as "Zero level premises" agreement (Exh.C-B) and "Air Cargo and Ramp Area" or' "Display Centre" agreement (Exh.C-14). After the execution of such agreements appellant entered into correspondence with the respondent, inter alia, alleging misrepresentation and expressing their dissatisfaction and concern about their conduct. Such correspondence between `ARIP' and containing their respective assertions was followed by filing of counter suits, being Suit No.548/1994 by C.A.A. against ARIP and Suit No.689/1995 by ARIP against C.A.A.

3. Since the agreements referred above, executed between the parties also contained arbitration clause to resolve all disputes emanating therefrom, during the pendency of these suits, vide order dated 19-4-1999, two retired Hon'ble Judges of High Court, namely Mr.Justice (R.) K.M. Samadani and Mr. Justice (R.) Syed Haider Ali Pirzada were appointed Arbitrators with the consent of the parties.

4. Before the arbitrators C.A.A. submitted its claim comprising, non-payment of licence fee and electricity dues by the appellant, while ARIP in its claim before the Arbitrators demanded loss of profits, recovery of dues of its affiliated shareholders, compensation for loss of good-will and reputation and refund of security deposit. Such claims of ARIP were based on the premises of misrepresentation and breach of terms of license agreements committed by C.A.A. The award delivered by the two Arbitrators was decided on the following issues: "(1) Whether the Claimant is entitled to any of the claims mentioned in its statement of claim, if so, to what extent? (2) Whether the Respondents are entitled to anyone of the claims in the counter-claim and, if so, to what extent? (3) Whether any representations were made by the Claimants to the Respondents in relation to the projected volumes of passengers for ten years, the Open Skies Policies, free access to the duty free shops and other promotional measures for marketing the Jinnah Terminal and, if so, to what effect? (4) Whether the aforementioned representations, if made by the Claimants to the Respondents, were incorrect and, if so, to what effect? (5) Whether any breach of licence agreements has been committed by either of the parties and, if so, to what effect? (6) What should be the Award?"

5. The Arbitrators while delivering their award differed in their opinion/conclusion, which resulted in further reference to the Umpire, by mutual consent of the parties.

6. On reference to the Umpire, after full-fledged proceedings he delivered his detailed award on 31-8-2002, holding the appellant liable for payment of different sums as detailed in his award.

7. On filing of such award in Court on 12-9-2002, and its due notice to the parties, objections under sections 30 and 33 of the Arbitration Act, 1940, (hereinafter referred to as `Arbitration Act') were filed by the appellant on 7-11-2002.

8. On the basis of such objections, arguments of parties' counsel were heard by the learned Single Judge and ultimately by impugned judgment, objections to the award of the Umpire, raised by the appellant were rejected, and award was made rule of the Court.

9. By this appeal, the appellant has re-agitated the same grounds, which formed basis of its objections under sections 30 and 33 of the Arbitration Act before the learned Single Judge.

10. Mr. I. H. Zaidi, Advocate for appellant ARIP, after brief resume of relevant facts of the case agitated that it was due to the misrepresentation made by the respondent in the form of data regarding expected number of passengers travelling from Qaid-e-Azam International Airport provided by them; imposition of restriction on certain categories of passengers from entering into duty free shops; the closure of certain delivery and display centers by the Customs authorities during the year 1994 to 1998; charging of octroi and withholding tax; and withdrawal of open sky policy by the respondent and the Government of Pakistan, which resulted in discontinuation of most of the foreign flights from the Qaid-e-Azam International Airport Karachi, that heavy financial losses were caused to the appellant, but all these aspects of the dispute were not judiciously taken into consideration either by the Umpire while making his award dated 31-8-2002 against the appellant or by the learned Single Judge, while passing the impugned judgment, thereby rejecting the objections of the appellant and making the award Rule of the Court.

11. In reply to the above contentions, Mr. Zahid F. Ebrahim, advocate for respondent C.A.A. has taken us to various portions of the award delivered by the Umpire and the impugned judgment to show that not once but twice all these whimsical objections raised by the appellant were judiciously scrutinized and answered against them, but still the remedy of appeal has been followed by the appellant merely to gain further time and delay the payment of decretal amount the respondent.

12. We have carefully considered the arguments advanced by the parties counsel and perused the whole material available before us, which goes td show that firstly, the worthy Umpire (Mr. Justice (R.) Wajihuddin Ahmed) has taken care of each of such objections, now raised before us, while making his award against the appellant and answered the same in a judicious manner after taking into consideration all documentary and oral evidence adduced before him by the parties, without being influenced in any manner by the earlier two dissenting opinions of the Arbitrators M/s. Justice (R.) K.M.. Samadani and Justice Syed Haider Ali Pirzada.

13. Mr. I. H. Zaidi the learned counsel for the appellant when confronted with the contents of this detailed award delivered by the Umpire, spreading over more than 70 typed pages, could not pinpoint or expose any misreading or non-reading of evidence or any other procedural or legal defect therein. Not only this but the contentions raised before us were again subjected to minute scrutiny by the learned Single Judge in his impugned judgment and he also repelled each of such contentions for cogent reasons. In this regard too Mr. Zaidi was unable to show any illegality committed by learned Single Judge while passing the impugned judgment.

14. By now it is well-settled principle of law that when the parties have opted for resolution of their dispute through arbitration and Arbitrator/Umpire has delivered his award, then the Courts have to proceed with the presumption of ,correctness attached to such award and it could not be disturbed merely for technical reasons not affecting the merits of the award or at the whims of some party aggrieved by the terms of such award. To say it in other words, it is the duty of Courts to give every reasonable intendment in favour of award and lean towards upholding it rather than vitiating the same, as the Courts while dealing with the question of making the award rule of the Court do not act as Court of appeal against the award, therefore, cannot proceed to A scrutinize award only to discover an error for the purpose of setting it aside. For justifying interference in award it is necessary that the error must be apparent on the face of award and not latent. Further the result of such error must be one which has materially affected the terms of the award to the prejudice of one party for no valid justification. If any case law is needed to fortify this view, reference may be made to the case of Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1985 SCMR 597).

15. In the instant case after going through the award delivered by the Umpire and the impugned order passed by the learned Single Judge, we have no doubt in our mind that none of the grounds urged in this appeal have any factual or legal basis, which may justify interference in the impugned judgment. M.H./A-32/K?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.