- (1.) (Minority view) The sole and subtle question arising in this appeal is whether in the facts and circumstances, it was required of the Umpire making the award to formally express in terms that items Nos. 2 to 5 of the dispute were arbitrable on the terms of the contract
(2.) The appellant herein M/s. Premier Fabricators Allahabad is the contractor. The Respondent-Corporation engaged the contractor to execute some works. On May 25, 1971, a deed of agreement was executed in writing between the parties. Clause 78 thereof made provision for settlement of disputes by arbitration. That clause reads as follows : "SETTLEMENT OF DISPUTES BY ARBITRATION 78(1) All questions, disputes or difference of any kind, whatsoever, arising out of, or in connection with, the contract, at any time, whether during the progress of work or after its completion, or whether before or after the determination of the contract, other than determination of the contract, other than question, disputes or differences for the decision of which specific provisions have been made in the foregoing clauses of these conditions (hereinafter referred to as "excepted matters") and decisions on such "excepted matters" according to the said specific provisions shall be final and binding on the contractor and shall not be re-opened or attempt to be re-opened on the ground of any informality, omission, delay or error in the proceeding in or about the same or on any other ground whatsoever, shall be submitted in writing by the contractor to the employer, and the employer shall within a reasonable time, after the submissions of the same, make and notify its decisions thereon in writing. (2) If the contractor be dissatisfied with the decision of the employer on any matter in question, dispute or difference, on any ground, or as to the withholding by the employer of any certificate to which the contractor may claim to be entitled to, or if the employer fails to make a decision within a reasonable time, then and in any such case but not including any of the excepted matters, the contractor may, within ten days of the receipt of such decision or after the expiry of a reasonable period of time, as the case may be, demand in writing that such matter in question, dispute or difference be referred to arbitration. Such demand for arbitration shall be delivered to the employer by the contractor and shall specify the matters which are in question, dispute or difference and only such question, dispute or difference of which the demand has been made and no other shall be referred to arbitration. (3) The further progress of any work under the contract shall, unless otherwise directed by the Engineer, continue during the arbitration proceedings, and no payment due or payable by the employer shall be withheld on account of such proceedings, provided however that it shall also be open to the arbitrators, to consider and decide whether or not such work shall continue during the arbitration proceedings. (4) (a) Matters in question, dispute or difference to be submitted to arbitration as aforesaid shall be referred for decision to two arbitrators, one to be nominated by the Chairman and the other to be nominated by the contractor. In the event of the two arbitrators being divided in their opinion, the matter under dispute shall be referred for decision to an umpire to be appointed by the two arbitrators not later than one month from the latest date of their respective appointments and, in any case, before they enter upon and proceed with the reference. (b) The Arbitrators or the umpire shall have power to call for such evidence by way of affidavits or otherwise as the arbitrators or the umpire, as the case may be, shall think proper, and it shall be the duty of the parties to do or cause to be done all such things as may be necessary to enable the arbitrators or umpire to make the award without any delay. (c) Unless otherwise agreed upon by the parties, the venue of the arbitration proceedings under these conditions shall be at Ranchi in the State of Bihar. (d) Subject to aforesaid, the provisions of the Arbitration Act, 1940 or any statutory modification or enactment thereof and of the rules made thereunder for the time being in force, shall apply to all arbitration proceeding under this clause. Provided, however, that the arbitrators or, as the case may be, the umpire may, from time to time, with the consent of the parties, enlarge the time for making the award."
(3.) The appellant-contractor laid down for payments in terms of items Nos. 1 to 5, as mentioned in its claim, from the Corporation which was rejected by the latter. Thereupon, the contractor asked for arbitration in terms of Clause 78. The Corporation denied arbitration in respect of items 2, 3, 4 and 5 as being not referable to arbitration in terms of the contract. On the basis of the disputes and differences thus existing between the parties in respect of the claims of the contractor, the Managing Director of the Corporation nominated Shri K. N. Mehra, its Works Manager (Production) as an arbitrator to give a joint award on all the above claims after deciding whether claims referred to in items 2, 3, 4 and 5 were or were not referable for arbitration in terms of the contract. The contractor on its part nominated Shri S. B. Gadodia as the arbitrator to make a joint award in respect of the terms of the arbitration made by the Corporation.;