- (1.) THE subject matter of challenge in this application under the Arbitration Act. 1940, is an award of the Umpire dated 14th December, 1973. The said award arises out of the two agreements containing arbitration clauses. Both the said agreements are dated 25th July, 1970. It appears that on that date there was a job contract between the petitioner and the respondent. The respondent had entered into a contract with the government of West Bengal for construction of reinforced concrete pre-stressed bridge over the river Cossayee at sadargrat, Midnapore in the State of west Bengal in or about 1966. It is the case of the petitioner that inasmuch as the construction of the said bridge involved pre-stressed concrete works and inasmuch as the respondent was not capable of doing pre-stressed concrete works, the respondent had approached the petitioner for the purpose of execution of the said contract relating to and concerning pre-stressed concrete works including design approval of the design by P. W. D. Engineers of the Government of West Bengal, construction of the pre-stressed concrete girders and construction thereof. Prior to 25th July, 1970 there was exchange of correspondence between the parties for doing the pre-stressed concrete works as also for financing the petitioner in the said job, but no concluded contract had been entered into. It was only on 25th July, 1970 that two contracts were entered into, one for doing pre-stressed concrete works in respect of the contract under P. W. D. and the other was in respect of financing the petitioner for doing the said works. Therefore, the first contract should be considered to be the job contract and the other the financing agreement. Both the contracts contained arbitration clauses. The job contract contained the arbitration clause in Clause 15 which was to the following effect : "15. In course of any dispute between the parties relating to the execution of the job works or the terms and conditions of this agreement or otherwise relating to this agreement the same shall be referred to two Arbitrators, one to be nominated by the Contractors and the other to be nominated by the employees and such Arbitrators shall be either retired Government engineers of the Public Works department, Government of West bengal, not being below the rank of Superintending Engineers or shall be full corporate members of institute of Engineers and in case of difference of opinion between the Arbitrators to an Umpire to be nominated by the Arbitrators before proceeding with the arbitration. The arbitration shall be in accordance with the Arbitration Act, 1940 and the statutory modifications thereof" . Similarly, the finance agreement contained an arbitration clause which was to the following effect: "11. In case of any dispute between the parties relating to the execution of the job works or the terms and conditions of this agreement or otherwise relating to this agreement the same shall be referred to two Arbitrators one to be nominated by the Borrower and such Arbitrators shall be either retired Government Engineers of the Public Works Department, government of West Bengal, not being below the rank of Superintending Engineers or shall be full corporated members of Institute of engineers and in case of difference of opinion between the Arbitrators to an Umpire to be nominated by the Arbitrators before proceeding with the arbitration. The Arbitration shall be in accordance with the arbitration Act, 1940 and the statutory modifications thereof. "
(2.) ON or about 4th August 1971 the petitioner wrote to the arbitrators for entering upon the reference with regard to the disputes under the finance agreement. Similarly, they also wrote on that date to arbitrators for entering upon the reference with regard to the disputes under the job contract. On or about 1st September, 1971, the arbitrators entered upon reference and directions were given. Separate statements of claim were filed on 30th November, 1971. The petitioner claimed Rs. 4,21,325. 72 under the job contract and Rs. 1,00,600. 00 under the finance contract. Similarly, the respondent filed a counter claim for Rs. 4,08,067. 00 under the job comma and Rs. 2,33,630. 00 and also rs. 46,810. 00 under the finance agreement. Thereafter separate replies were filed and separate written arguments were submitted. Between 8th January, 1972 and 18th April, 1972 there were several hearings regarding the disputes under the job contract. Similarly between 18th April, 1972 and 29th april, 1972 hearings took place before the It Arbitrators regarding disputes under finance agreement. It is alleged that on or about 29th August, 1972 Mr. H. C. Mukherjee, one of the It Arbitrators published two separate awards. Mr. K. N. Bose, the other Arbitrator disagreed and there was a reference accordingly to Mr. R. N. Mukherjee, umpire. The respondent thereupon moved an application on 22nd November, 1972 for removal of Mr. R. N. Mukherjee. By consent of the parties, on 7th February, 1973 by an order of this Court Mr. R. N. Mukherjee was removed and in his place Mr. S. K. Laha was appointed as the Umpire. On 4th April, 1973, the Umpire. Mr. S. K. Laha gave directions. On 7th April, 1973 a letter was written by the petitioner requesting the Umpire to call upon the respondent to produce certain documents. In view of some of the contentions raised, it may be necessary to refer to the said letter. The petitioner wrote to the Umpire as follows : "for proper adjudication of the above cases, it is necessary that the following particulars should be produced before you by the respondent. 1. Copies of all Running Bills as paid by P. W. D. to the respondent for the construction of super structure of Cosseye bridge at Midnapore with details of recovery statement of materials and money. 2. Copies of all Hand Receipts of respondent for monies received as secured advance against materials and for refund of security deposits .
(3.) COPY of the Final Bill with all connected Supplementary Bills as paid by P. W. D. to respondent. in spite of our repeated requests the respondent is not producing the above bills and Hand receipts and have exhibited only a few of them to suit their advantage. They had taken the plea that the documents are not available with them and we should apply to the Court for ordering P. W. D. to produce the documents to arbitrators. In this connection we beg to refer to page 287, Russel on Arbitration, 12th Edition, Case Law penrive vs. William (1893) 23 Ch. 203 where it has been held that the court cannot make an order for discovery or inspection of documents after the matter is referred to Arbitration. The Arbitrator is fully empowered to order for the discovery of the above papers. If the respondent do not produce the above papers then it is submitted that the few Running bills as also the accounts of money and materials produced by them should not be accepted as correct as we deny their correctness or otherwise. We are prepared to co-operate with them by going to the office of executive Engineer, P. W. D. Midnapore and copying out the above bills, hand receipts etc. if if they arrange necessary inspection for us from P. W. D. authorities, who will not show those documents to us otherwise. " 3. On 7th April, 1973 the first meeting of the Umpire was held. In that meeting the aforesaid letter was placed and the Umpire after considering the matter observed as follows as it appears from the minutes of that date : "after hearing both parties. Umpire mentioned that due notice will be taken by him on the points raised. After he has closely and carefully examined the records, contract documents, etc. he will give his ruling. ";