Pratibha Bonnerjea, J. - (1.) The petitioner entered into a contract with the respondent pursuant to the Tender No. DD/NY & AD/10 of 1980-81 for construction of various types of buildings under Baisnabghata Patuli Development Project, Group 'B'. The said contract contained an arbitration clause being Clause 25 thereof which provided that all questions and disputes relating to the said contract whether arising during the progress of the work or after completion thereof or abandonment of the same should be referred to the sole arbitration of the Director/Unit Head, C. M. D. A. not connected with the particular work as might be appointed by the Authority. Disputes and differences having arisen between the parties, Prasun Roy as the plaintiff took out the Special Suit No. 1 of 1983 under section 20 of the Arbitration Act for filing the arbitration agreement and starting a reference with the intervention of Court. In that application. Prasun Roy alleged that the director of all the units of C. M. D. A. had already expressed their opinion in respect of the disputes that had arisen between the parties and as they were the members of the Central Tender Committee, he had reasonable apprehension of bias against them. He prayed for an independent arbitrator to be appointed by Court. These allegations in paragraphs 16 and 17 of the petition were specifically denied by C. M. D. A. in its affidavit-in-opposition affirmed by one Dipak Kumar Sen, the Executive Engineer of C.M.D.A. on 25.1.83. Mrs. Khastgir, J. heard the Sp. Suit No. 1 of 1983 and delivered a judgment on 19.4.83 whereby she appointed Sri Amitava Guha, a member of the Bar, as the sole arbitrator without coming to a definite finding on the aforesaid allegations made by Prasun Roy. Thereafter, Prasun Roy as the claimant filed a statement of claim before the arbitrator. The basis of the Sp. Suit No. 1 of 1983 was Prasun Roys letter dated 15.11.82, being Annexure B to the present petition. In that letter Rs. 24,10,364/-was claimed on 34 heads of disputes. Order for reference dated 19.4 83 was made for adjudication of these 34 disputes claiming relief for Rs. 24,10,364/- only. But before the arbitrator, Prasun Roy inflated his claims to the extent of Rs. 32,90,520/- on 44 heads of disputes and thereby added 10 new disputes in the reference. According to C.M.D.A, the appointment of Amitava Guha as the arbitrator was made in violation of the express provisions contained in section 20(4) of the Arbitration Act and is invalid and without jurisdiction. Therefore, the order of reference is bad in law. The petitioners counsel submits that assuming that the appointment is valid, Prasun Roys statement of claim having gone beyond the scope of the order of reference dated 19.4.83, the reference became bad and without jurisdiction. It is alleged in the present petition that the petitioner contended before the arbitrator that his appointment was invalid and his attention was drawn to the fact that Prasun Roys claims were inflated beyond the scope of the order of reference. But inspite of the aforesaid facts, the arbitrator had proceeded with the reference. Hence the present application under sections 5, 11, 12 and 33 of the Arbitration Act.
(2.) In the affidavit-in-opposition filed in the present proceeding, Prasun Roy alleged that C.M.D.A. submitted to the jurisdiction of the Arbitrator and contested the said reference without any protest whatsoever upto 76 sittings and as such it waived its right to dispute the validity of the appointment of the arbitrator. The objection regarding the validity of the appointment was taken with ulterior motive, Regarding the allegations of Prasun Roys making inflated claims beyond the scope of the order dated 19.4 83. Prasun Roy only craved reference to the records of the Arbitration Proceedings. The records of the case however, corroborate the allegations of C.M.D A. that 10 new disputes had been added and the claims were inflated before the arbitrator from Rs. 24,10,364/- to Rs. 32,90,520/-.
(3.) The first question is whether the arbitrator had the jurisdiction to entertain the 10 new heads of disputes and the extra claims. Mr. Bhabra, appearing for Prasun Roy, invites my attention to paragraph 15 of the petition in Sp. Suit No. 1 of 1983 and the prayer (c) thereof. In paragraph 15 Prasun Roy had set out the disputes to be referred to the arbitrator and then added:- "Your petitioner reserves his right to submit a detailed upto date claim before the Arbitrator to be appointed herein at the appropriate time." The prayer-(c) in the said petition was as follows:- "All disputes relating to and arising out of the said contract and the work be referred to the Arbitration of the Arbitrator to be appointed herein." On the basis of these proceedings, Mr. Bhabra submits that his client reserved the right to add new disputes and claims which had arisen out of the contract but were not mentioned in the Sp. Suit No. 1 of 1983 before the arbitrator and by granting prayer (c) the learned Judge allowed him to do so. 1 am unable to accept Mr. Bhabras submission. The right reserved in paragraph 15 was to make upto date claims only and not the right to add fresh disputes. There is a distinction between disputes and claims. The dispute is the cause of action and the claim is the relief sought for. Therefore, by order dated 19.4.83, the Court only directed the disputes mentioned in the Sp. Suit No. 1 of 1983 to be referred to arbitration and Prasun Roy was given leave to make the claims upto the date on the basis of those disputes only till the filing of the statement of claim. Under the order, Prasun Roy did not have the tight to enlarge the scope of the reference by making claims on new heads of disputes and the arbitrator did not have the jurisdiction to entertain the same. Therefore, I hold, the construction of the order dated 19.4.83 as made by Mr. Bhabra, is not correct. The arbitrator had entertained the new disputes and claims made by Prasun Roy and held innumerable sittings and examined three witnesses. On the facts of the , case, I am constrained to hold that the arbitrator proceeded without jurisdiction. It was the duty of the learned arbitrator to carefully go through the pleadings in Sp. Suit No. 1 of 1983 to understand the nature of the disputes and the scope of the reference. Unfortunately, that was not done and the arbitrator proceeded with the matter without ascertaining the same. In Orissa Mining Corporation Ltd. v. M/s. Pranath Viswanath Railway, AIR 1977 SC 2014 it was held that the arbitrator could not enlarge the scope of the reference and by entertaining claims not referred to by the order of reference, he exceeded his jurisdiction.;