- (1.) THE present application has been taken out under Ss. 30 and 33 of the Arbitration Act for setting aside the award dt. 28-3-85. THE award is a money award and is a nun-speaking one. Under the agreement, the arbitrator was required to give the breakups of the total amount award. In compliance with the said provision, the arbitrator has given the breakup of each item of claim.
(2.) ALTHOUGH various grounds have been taken in the petition for attacking the said award, during hearing, the learned counsel for the petitioner has pressed only three grounds :- 1) Items Nos. I and 2 of the claims are excepted matters and the Chief Engineer has already given his decision on these claims. The said decision is binding on the parties under Cl.61A of the Contract. Therefore these items are not arbitrable at all. 2) The amounts awarded against claims Nos. 4 and 5 are in violation of the express provisions contained in cl. 11 of the General Conditions of the Contract. The arbitrator misdirected/misconducted himself in allowing the said claims. 3) The arbitrator had no jurisdiction to award interest as no claim for interest was made by the claimant. The arbitrator acted beyond jurisdiction in awarding interest. Regarding ground (1) the petitioner's counsel has invited my attention to the letter of the Chief Engineer dt. 1-5-82 rejecting certain claims of the claimant made earlier. The petitioner's counsel submits that by that letter the Chief Engineer rejected the claimant's claim in items' Nos. 1 and 2 in the statement of fact before the arbitrator. He submits that in terms of cl. 6(a) of the General Conditions of Contract, the decision of the Chief Engineer is final and conclusive between the parties and is an excepted matter, not at all arbitrable. Therefore, by allowing these two claims the arbitrator travailed beyond his jurisdiction. This letter dt. 1-5-82 is Annexure 'B' to the present petition. This argument of the petitioner's counsel is based on the opening words of the arbitration clause '70' as well as cl. 6A of the Contract which are as follows :- '70'. "All disputes between the parties to the contract (other than those for which the decision of the C. W. E. or any other person is by the contract expressed to be final and binding); be referred to the arbitration" Cl. 6A : - "If there are varying or conflicting provisions made in any one document forming part of the contract, the accepting officer shall be the sole deciding authority with regard to the intention of the document and his decision in this respect shall be final and binding."
(3.) IT is an admitted fact that the contract between the parties consisted of several documents. Cl. 6A is a long clause giving guideline to the parties as to how the conflicting provisions contained in different documents will have to be reconciled to explain any ambiguity if it arises at the time of construing the documents. If, however, the guideline provided in cl. 6A fails to bring in a reasonable solution or does not help in bringing in a harmonious construction by explaining the ambiguity, then the decision of the officer on this point as mentioned in cl. 6A would be final and conclusive. The decision making authority in this case is the Engineer-in-Chief. The respondent's counsel rightly points out that the petitioner's counsel has misread cl. 6(a) of the contract. According to him, this clause only provides for solution of intra-document conflicts or ambiguities by following the guideline or by the decision of the accepting officer who is the final authority in this respect. But his jurisdiction is limited to that extent only. The accepting officer has no other jurisdiction and cannot decide any substantive claim of any party or any other dispute arising out of the contract. After careful scrutiny of the provisions of cl. 6(a), I have no hesitation to hold that the contention of the respondent's counsel is absolutely correct and I accept the same. Therefore, the letter dated 1st May, 1982, being Annexure 'B' to the petition, has not been written by the Engineer-in-Chief in exercise of the authority conferred on him under the provisions of cl. 6(a) as by that letter the Chief Engineer had rejected certain monetary claims of the respondent. Cl. 6(a) cannot be attracted in such a case. On the contrary, the rejection of these claims of the respondent by the Chief Engineer gave rise to the disputes which were clearly arbitrable under the terms of the contract. The arbitrator had jurisdiction to decide these claims.;