R. R. K. Trivedi, J. - (1.) This appeal under Section 39 of the Arbitration Act, 1940 (here-in-after referred to as Act'), has been preferred against the judgment and order dated 18th May, 1992 passed by I Additional Civil Judge, Saharanpur in Suit No. 198 of 1991, whereby the objections of the appel lants against award dated 26th February, 1991 have been rejected and the award has been made the rule of the Court with costs.
(2.) THE facts giving rise to this appeal are that vide agreement No. CWC/cc/ 7/sre-B. D.-45000 M. T. /80/81/890 dated 12th August, 1980, plaintiff-respondents M/s Harnam Singh and Company were as signed the work for construction of 45,000 M. T. C. godowns and other allied/related constructions at Central Warehousing Pilkhani, Saharanpur. A contract agree ment to the aforesaid effect was signed by the parties on 3rd Sep. , 1980. The total con tract was for 1,29,36,000. The work was to be completed in 18 months i. e. by 12th February, 1982. As per agreement, the con tractor started work for completing the work, time was extended firstly upto 12 August, 1982 then upto 23rd November, 1982. The last extention was granted on 18th January, 1983 extending time upto 28th March, 1983. However, a show- cause notice was served on respondents on 31st January, 1983 that the progress of the work is unsatis factory and why the contract may not be rescinded. Thereafter, vide order dated 21st February, 1983 the contract was rescinded. Aggrieved by the aforesaid order, respon dent contractor on 26th February, 1983 filed Original Suit No. 93 of 1983 for declaration that the order rescinding the contract is illegal and void and for injunction restrain ing appellants not to interfere in completing the work. In the aforesaid suit, a temporary injunction was granted in favour of contrac tor on 7th March, 1983 directing appellants not to interfere upto 28th March, 1983. Against the aforesaid order of the tem porary injunction, appellants filed First Ap peal from Order No. 159 of 1983 in this Court. The Division Bench of this Court by order dated 23rd March, 1983 stayed the operation of the order dated 7th March, 1983 passed by the learned Civil Judge. In this suit, appellants filed an application u/s. 34 of the Act requesting to stay proceedings in view of the Arbitration Clause No. 25 in the agreement. The respondents, on the other hand, made an application on 30th April, 1987 for referring the dispute u/s. 21 of the Arbitration Act. The learned Civil Judge vide order dated 4-5-1987, rejected the application of the respondents for refer ring the dispute u/s. 21 of the Act and stayed proceedings of the suit u/s. 34 of the Act. The respondents then filed a suit under Section 20 of the Act on 5th May, 1987 which was registered as O. S. No. 251 of 1987. While the suit was pending, the Managing Director, Central Warehousing Corporation vide order dated 14th July, 1987, appointed Sri M. C. J. Jauhari as ar bitrator and referred the dispute of the par ties for his decision. Under this reference, claims No. f, h, i and j of respondents were referred. However for remaining claims namely, a, b, c, d, e, and g the reference was refused on the ground that they are excepted matters as per the contracted agreement. On this reference, notices were issued by the Arbitrator on 2nd August, 1987 to the par ties on behalf of the appellants a counter claim was filed on 11th August, 1987 then Arbitrator passed an order dated 11th March, 1987 directing parties to obtain or ders from the Court m the suit pending under Section 20 of the Act i. e. Original Suit No. 251 of 1987. The learned Civil Judge by order dated 27th May, 1989 allowed the application partly. Learned Civil Judge referred all the claims mentioned in para graph No. 21 of the application for con sideration of the Arbitrator and by this order six months time was granted to the Arbitrator to give an award. The order dated 14th July, 1987 passed by the Managing Director appointing Arbitrator was ac cepted and the claim of the respondents for appointing some body else as Arbitrator was rejected. After the order dated 27th May, 1989 passed by the learned Civil Judge, appellants again filed fresh counter claim on 16th October, 1989. Against this counter claim, an objection was filed by the respon dents. The Arbitrator after hearing the par ties by order dated 10th December, 1989 referred two questions of law under Section 13 (b) of the Act to the civil court. The two questions were as under: " (1) Whether the counter claim filed by the respondents (appellants herein) is maintainable and further the Arbitrator has jurisdiction to entertain the same. (2) Whether the Arbitrator has become fimctious officio and the time granted by the court has expired?"
(3.) LEARNED Civil Judge after hearing the parties gave opinion on 2nd April, 1990 against the appellants and also granted six months time to the Arbitrator to give an award. Aggrieved by which First Appeal from Order No. 357 of 1990 was filed in this Court. However, the appeal was rejected as not maintainable vide order dated 26th July, 1990 with the observation that if the Ar bitrator decides the claim of the parties rely ing upon this opinion the appellants will have a right to challenge the same before the appropriate court in reference proceedings. On receipt of the opinion under Sec tion 13 (b) of the Act, the Arbitrator entered into the reference and after hearing the par ties gave his award on 26th February, 1991 in respect of the items 8 (a) to (e) amounting to Rs. 37,58,029. 57 P. with interest at the rate of 15% during pendency of the proceedings. Respondents filed the award under Section 14 (2) of the Act for being made rule of the court. The appellants filed objection under Sections 30 and 33 of the Act. The learned Civil Judge vide the im pugned judgment and order dated 18th May, 1992 has rejected the objections of the appellants and has made the award dated 26th February, 1991 rule of the court and awarded interest at the rate of 15% for the period 28th March, 1983 to 26th February, 1991 and for the period 27th February, 1991 until the payment of the amount at the rate of 6% per annum. Aggrieved by the aforesaid award dated 26th February, 1991 and the order dated 18th May, 1992 appel lants have filed this appeal under Section 39 of the Act.;