Bose, C.J. - (1.) THIS is an appeal from an order of A.N. Ray, J. dismissing an application for setting aside an award. The appellant is a company incorporated under the Indian Companies Act, 1913 and carries on inter alia the business of building and construction at 6 Hasting Street, Calcutta. The appellant entered into a contract in writing, dated the 30th December, 1954 with the President of India represented by the Acting Chief Engineer, Eastern Command, for construction of a Canteen-cum-Rest Room for the Gun and Shell Factory at Cossipore for a lump sum of Rs. 2.11.827 in accordance with the terms, condition and specifications set out in the documents constituting the contract. The work to be done under the contract consisted of dismantling or demolishing the existing structure and construction of Canteen-cum-Rest Room building complete with sanitary fittings, fixtures, etc. The time for completion of the entire work was twelve months from the date of handing over of the site and the contract also contained clauses for deviations or alterations in the work and also for suspension of execution of the work during its progress. There was also a clause providing for compensation for delay in completion of the work. THIS is numbered as cl. (50) of the contract and provides that if the contractor fails to completed the work and clear the site on or before the date of completion, he shall without prejudice to any other right or remedy of Government on account of such breach be liable to pay as compensation an amount equal to one per cent of the contract sum for every week that the whole of the work remains uncompleted but the total amount of compensation shall not exceed ten per cent of the contract sum and the amount found due on account of such compensation may be adjusted or set off against any sum payable to the contractor under the contract. There is also a clause in the contract providing for cancellation for contractor's default. THIS is clause 54. There is a clause for arbitration being cl 69. Pursuant to this contract the appellant received a Work Order, dated 31st January, 1955 and under it the date of completion of the work was stated to be 30th January, 1956. But it appears that it was discovered shortly after this Works Order was given, that the site chosen by the Military Engineering Service (described hereinafter as M.E.S.) for the Canteen-cum-Rest Room interfered with the drainage of other existing structures in the vicinity and/or with drains already constructed. As a result of this faulty designing and planning on the part of the M.E.S. the latter had to direct suspension of the work and such suspension was made on 11th April, 1955.On 29the February, 1956 the appellant ultimately received written instructions that the original site was to be shifted 6'- 9" to the North and 5'-7 1/2" to the East and the actual site was thus made over to the appellant on the 29th February, 1956. Thereafter for certain other reasons the progress of the work under the contract had to be suspended from time to time, with the result that the completion of the work was considerably delayed and the appellant was constrained to ask for increase of the rates and negotiation of fresh rates for execution of the work, but on 9th May 1957 the M.E.S. cancelled the contract on the ground that the appellant had been guilty of default. Thereafter certain joint measurement was made in respect of the appellant and for the unexecuted portion of the work a contract was entered into with another company known as Prakash Chandra (Private) Ltd. Thereafter the appellant required the respondent to appoint an Arbitrator in accordance with the terms of the contract and to refer the disputes between the appellant and the respondent for arbitration and on the 4th June 1958 the Engineer-in-Chief, Army Head Quarters, New Delhi, appointed M.L. Rahaja , Superintending Engineer as sole Arbitrator. In the meantime the appellant had made an application to this Court for appointment of an Arbitrator inasmuch as there was delay in making the appointment, but as pending disposal of the application the Arbitrator had been appointed by the Engineer-in-Chief, Army Head Quarters, New Delhi, on order was made on this application. Thereafter the appellant filed a statement of case before the Arbitrator and the respondent filed Arbitration Act statement in defence in reply thereto. The respondent also filed a statement of case as claimant against the appellant and the appellant filed a counter statement in reply thereto. One of the items of claim put forward by the respondent was for a sum of Rs. 21,182.70 nP., as compensation for delay from 3rd January 1957 to 9th May 1957 being the date of cancellation of the contract. While the proceedings were pending before the Arbitrator, the appellant made an application to this Court for revoking the authority of the Arbitrator and for appointment of some other person in his place on the ground of apprehension of bias of the Arbitrator but as the learned Judge before whom the application was made expressed the view that the appellant's apprehension of bias appeared to be somewhat premature, the appellant asked for leave to withdraw the said application and such leave was granted to the appellant and the Court did not make any order on the said application.
(2.) THE hearing before the Arbitrator commenced on the 12th May 1960 and continued till 18th May 1960 and on or about the 1st June 1960 the Arbitrator made and published his Award. On the 22nd December 1961 the Award was filed in this Court and notice of filing of the Award was served on the appellant on the 17th January, 1962. By the said Award the Arbitrator rejected the appellant's claim and he made an Award against the appellant in favour of the respondent for the sum of Rs.24,281/-. On the 15th February 1962 the appellant took out notice of motion for an application out of which this appeal arises for setting aside the Award and in the petition the grounds made for setting aside the Award are: firstly, that the Award is erroneous in law on the face of it inasmuch as the Arbitrator has purported to allow the respondent's claim for alleged compensation for delay and secondly, the Arbitrator misconducted himself and/or the proceedings in the said Arbitration and/or was biased and/or prejudiced against the appellant and was acting in concert and collusion with the Officers of the respondent. The particulars of such misconduct are set out in paragraph 35 of the petition. The main allegations of such misconduct relate to exclusion of important and relevant evidence by the Arbitrator, conspiracy by the Arbitrator with the Officers of the respondent for depriving the appellant of its legitimate claim and the bias of the Arbitrator.
(3.) IN the affidavit-in-opposition which was filed on behalf of the of the respondent and which was affirmed by Subodh Ranjan Guha, Garrison Engineer at fort William, it was stated that the compensation for delay charged or claimed from the appellant was in terms and conditions of the contract and was payable by the appellant. It is also stated in this affidavit that the appellant never recorded any objection or protest in writing to the conduct of the Arbitrator or to the alleged irregularity in the procedure adopted by him, nor did the appellant make any application for appropriate step to remedy its grievances until after the Award was given against it, and on the contrary the appellant consented to extensions of time given to the Arbitrator for making the Award. So, no objection having been taken until after the Award was filed in Court and notice thereof was served on the appellant, the latter was estopped from challenging the validity of the Award on the ground of the alleged misconduct or bias of the Arbitrator.;