- (1.) The interpretation of sub-section 8 of section 16 of the Arbitration Act, 1940. (hereinafter called, for the sake of brevity, the Act) arises for consideration in this appeal, which arises out of the judgment and order dated 31st July, 1997 passed by the high Court of Bombay, appellate side, panaji Bench, Goa in appeal no. 7 of 1997.
(2.) The appellant and the respondent herein entered into an agreement whereby and whereunder the appellant undertook to carry out certain constructions. The agreement also provided for resolution of dispute by an arbitrator. It appears certain dispute arose as a result of which the appellant herein preferred a claim on 19th September, 1990 and subsequently on 26th October, 1990, first reference was made. On 12th March 1991, the respondent herein terminated the agreement. As a result of termination of agreement, the appellant herein made another reference on 26th june, 1991, and put in second claim on 27th september, 1991. The arbitrator appointed, with the consent of the parties, gave an award on 25th February, 1994. Thereafter the arbitrator filed an award for being made a rule of the court. The appellant filed an objection before the learned civil judge, senior division, Mapusa, in the State of goa. The learned civil judge in terms of the order dated 6th July, 1995, elaborately considered the contentions raised by the appellant herein and came to the following conclusion : "20.There appears some glaring mistake under item no. 1 and 2 when the arbitrator mentioned that the earth excavation is nil though the quantity appear to have been admitted by the respondent. But on this ground the award cannot be set aside. 21. Similarly, the claim no. 2 though the arbitrator has stated "could not be ascertained" there is no explanation as to why he could not do so and if it would not be ascertained what would be the finding to that effect. "
(3.) The learned civil judge, senior division, observed thus: "Considering the no objection of the learned advocate for the respondent, I feel that the award has to be remitted on two points as under: i. To decide the additional terms and reference by order dated 26.6.91 regarding the illegal closure of the contract and ii. The undermined part of item no. 1 and 2 as mentioned in page 7 of the award, to specify the term "could not be ascertained. ";