N. K. Mehrotra, J. - (1.) THIS is a revision under Section 15 of the Code of Civil Procedure against the judgment and order dated 18.3.1997 passed by the IInd Additional District Judge, Sitapur in F.A.F.O. No. 29 of 1992, State of U.P. v. M/s. Universal Construction Company, passed in appeal under Section 39 of the Arbitration Act, 1940.
(2.) THERE is an agreement dated 7.4.1973 between the parties and it contains an arbitration clause. A dispute arose and according to the Arbitration Clause, Superintending Engineer, XII Circle, Lucknow, was appointed as an arbitrator and he pronounced the final award on 21.2.1984. The award was filed in the Court of Civil Judge, Sitapur on 17.7.1984. The State Government through the District Government Counsel (Civil), Sitapur filed objection against the award under Section 30/33 of the Arbitration Act, 1940, assailing the award on the point of facts and rate of interest. The main objection of the revisionist before the Court of Civil Judge was that the award being a non-speaking one, it could not be challenged on facts and the arbitrator had every power to allow 12% interest on the awarded amount from the date of reference to the date of the award and 6% interest on the awarded amount from the date of the award to the date of the decree or payment, whichever is earlier. Besides, those objections two other objections, namely, the D.G.C. (Civil) had no authority to file objection and secondly about the deficiency of court fees were also taken by the revisionist. The Civil Judge, Sitapur made the said award rule of the Court after rejecting the objections. Opposite party filed appeal under Section 39 of the Arbitration Act in this Court in F.A.F.O. No. 29 of 1992 but after the amendment in the C.P.C. it was sent to the Court of District Judge, Sitapur which was later on transferred to the Court of IInd Additional District Judge, Sitapur who passed the impugned order on 18.3.1997 allowing the appeal of the opposite party. It is against this order that the instant revision has been filed. The main contention of the revisionist before this Court is that it is a non-speaking award and the arbitrator's mind could not be probed as to how he reached to a decision and it is not open to the appellate court to re-appreciate the evidence and arrive at a fresh finding. It is also contended that the arbitrator is competent to decide the question both of law and fact when they are referred to him. In the present case, the matter regarding the coal, etc. and claims in regard to the same, were specifically referred to the arbitrator and he had awarded on account of excess consumption of coal and the amount for the transportation of coal. Therefore, the questions regarding the evidence placed before the arbitrator could not be agitated neither in the objections under Sections 30 and 33 of the Arbitration Act, 1940, nor in appeal under Section 39 of the said Act. It has also been argued that the court below could not reduce the interest as was awarded by the learned arbitrator.
(3.) I have heard the learned counsel for the parties. The main objection against the revision, by the learned standing counsel is two folds. Firstly, the revision is not maintainable against the order passed in appeal by the District Judge under Section 39 of the Arbitration Act, 1940 and ; secondly there is no illegality in the finding recorded by the appellate court.;