- (1.) THE principal ground urged in challenging the reasons, subsequently supplied by the arbitrator in support of the original non-speaking award, is that prior to the arbitration there was an agreement under which the respondent-contractor had received payment in full and final satisfaction of its claims. It is submitted that in view of such agreement, no payment could have been sought in terms of the principal agreement and all disputes arising out of the principal agreement stood resolved.
(2.) IMMEDIATELY prior to the reference being taken up by the arbitrator, there were two sets of proceedings; one under section 20 of the Arbitration Act, 1940 and the other under sections 5, 8 and 11 thereof. The application under sections 5, 8 and 11 of the 1940 Act was disposed of by an order of July 10, 1996, the relevant portion whereof is set out in the reasons given in support of the award in the following manner: "a point has been raised by the Respondent (Railways) that prior to the order of reference a supplementary agreement was executed by the parties whereby it was agreed between them that the arbitration agreement which is the subject matter of the order of reference would cease to have effect. The said Arbitrator in adjudicating upon the disputes between the parties shall also take into account the said supplementary agreement dated 5th March, 1991 after giving an opportunity to the parties to deal with the same. In considering the said supplementary agreement the arbitrator shall also take into consideration the pleadings filed by the parties in the section 20 Suit filed before this Court. "
(3.) THE section 20 proceedings were concluded on August 7, 1997 and though such order does not find any mention in the reasons subsequently furnished by the arbitrator, there is reference in the records to such order, the relevant portion whereof is as follows: "the Court: This is an application under section 20 of the arbitration Act, 1940, by this application the plaintiff seeks to refer the disputes which are referred to as 'group-B' claims set out in annexure 'a' to the petition in the pending reference before the Sole arbitrator, Mr. S. P. Banerjee, Advocate. It is stated that the said 'group-B' claims were not referred to the arbitration by mistake and that the arbitration proceedings before the said Arbitrator in respect of 'group-A' claims are still continuing. It is submitted on behalf of the defendant that the plaintiff has submitted 'no-Claim Certificate' in respect of the said 'group-B' claims and that there is an agreement to the effect that the arbitration agreement shall cease to have effect in respect of the said 'group- B' claims. Having regard to the facts and circumstances of this case, I direct that the said 'group-B' claims referred to in annexure-'a' to the petition in regard to the sole arbitration of Mr. S. P. Banerjee. In adjudicating the said 'group-B' claims the Arbitrator shall take into account the 'no-claim Certificate' furnished by the plaintiff the relevant the alleged agreement whereby the plaintiff as well as the aforesaid agreement relied upon by the defendant. The Arbitrator shall adjudicate on the said claims as well as the 'group-B' claims and make and publish a composite Award. ";