Decided on September 13,2007



BADAR DURREZ AHMED, J. - (1.) The respondent No. 1 has filed objections in respect of the Award dated 03.09.1996 passed by the sole arbitrator. The Award is a non-speaking Award. The learned counsel for the respondent No.1 (Singh Construction Company) firstly contended that this matter cannot be proceeded with because the respondent No.2 died during the pendency of these proceedings. The learned counsel for the claimant (Motor and General Finance Ltd.) immediately stated that the Award made by the learned arbitrator in favour of the claimant was made against the respondents coextensively and they were jointly and severely liable. She also stated that the respondent No.2 was the guarantor and she does not propose to proceed any further against the legal representatives / heirs of the said respondent No.2. In these circumstances the first point raised by the learned counsel for the respondent No.1 would be of no consequence.
(2.) The learned counsel for the respondent No.1 then raised the issue that the counter claim filed on behalf of the said respondent was not at all considered and this was ground enough for setting aside the Award and remanding the matter for arbitration afresh after due consideration of the counter claim of the respondent. He placed reliance on a decision of the Supreme Court in the case of K. V. George v. Secretary to Government, Water and Power Department, Trivandrum and Anr. : (1989) 4 SCC 595. I have examined that decision and I find that the same is not at all applicable to the facts of the present case. Paragraph 12 of the said decision of the Supreme Court clearly indicates that in that case the respondent had filed counter claims and the arbitrator without considering the counter claims kept the counter claims for subsequent consideration and made an Award only in respect of the claim. It was not disputed that the arbitrator did not at all consider the counter claims and had kept the same for consideration subsequently while making the Award in respect of the claims filed by the appellant before the Supreme Court. In this context the Supreme Court observed that undoubtedly the Award made by the arbitrator was not sustainable in law and the arbitrator had mis-conducted himself and the proceedings by making such an award. The Supreme Court also observed that it was the duty of the arbitrator while considering the claims of the appellant to have also considered the counter claims made on behalf of the respondents and then to make the award after considering both the claims and counter claims. Since this had not been done in that case, the Supreme Court found the Award to be wholly illegal and unwarranted.
(3.) The situation that arises in the present case is entirely different. Here, the counter claim has been clearly referred to by the arbitrator in its Award and after setting out the claim and the counter claim of the respondent and the documents on which the parties relied upon, the arbitrator passed a non- speaking Award by noting:- "Now, I have duly considered oral submissions made and documentary evidence produced before me and matters referred to me and make my Award as under:-" It cannot be said that the arbitrator did not consider the counter claim of the respondent No.1. Therefore, the decision of the Supreme Court on which the learned counsel for the respondent No.1 placed heavy reliance, would be of no assistance to him.;

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