TATIA, J. - (1.) THESE two appeals are directed against the judgment and decree dated 23. 11. 1998 passed by the learned Additional District Judge No. 3, Jodhpur in Civil Misc. Cases No. 1-A/97 and 3-A/96. In Civil Misc. Case No. 1-A/97, an application was filed by the Union of India under Sections 30 and 33 of the Arbitration Act, 1940 and the appellant-Union of India submitted objections against the award dated 25. 7. 1996 and prayed that the award may be be set aside, whereas in case No. 3-A/96, the respondent No. 1 submitted application under Sections 14, 17 and 29 of the Arbitration Act and prayed that the award passed by respondents No. 2 and 3 be made rule of the court. Both the above miscellaneous cases were decide by the learned Additional District Judge No. 3, Jodhpur by common judgment and decree dated 23. 11. 1998. The appellant Union of India has challenged the above judgment and decree dated 23. 11. 1998 by filing two separate appeals involving the same point in controversy, therefore, both the appeals are being decided by this judgment.
(2.) IN these appeals, the learned counsel for respondent No. 1 raised preliminary objection with respect to the maintainability of the appeals on the ground that the present appeals have been filed under Section 37 of the Arbitration and Conciliation Act, 1996 whereas, admittedly, the proceedings before the arbitrator was under the old Act, i. e. , Arbitration Act, 1940 and the rule of court was made by the court below due to the fact that proceedings were under the old Act. Therefore, in view of the objection of the learned counsel for respondent-No. 1, the learned counsel for the appellants requested that the appeals may be treated as appeals under the old Act. Both the appeals have been filed within period of limitation and there is no bar in treating the appeals under the old Act, therefore, the appeals are treated as appeals under Section 39 of the Arbitration Act, 1940. The learned counsel for the respondent No. 1 further raised objection that the appeals are not maintainable in view of the fact that award was passed on the basis of the consent of the parties for which the learned counsel for the respondent relies upon the facts mentioned in the award dated 25. 7. 1996 and submitted that at page No. 2 of the award, while considering Item No. 1, it is mentioned as under: "this claim is for transporting debris of dismantled materials. During the hearing both the parties agreed that the quantity is 999 cubic meters. We have added 30% bulkage. Both the parties also agreed that the rate applicable would be as per SOR. We have considered a lead of around 6 kms as reasonable. Accordingly we are making the award. " The learned counsel for respondents No. 1 submitted that it is clearly mentioned that both the parties also agreed that the rates applicable would be as per SOR, therefore, this award is by the consent of the parties and hence the appellants cannot challenge this award. I am unable to accept submission made by the learned counsel for respondent No. 1 because this admission, on the face, is that both the parties agreed that what should be the rate applicable. There was also agreement with respect to the quantity of the dismantled material which is 999 cubic meters but, it is no where admitted that simply because the quantity and rates applicable as per SOR, therefore, only the appellant may be held liable for the payment of the amount as claimed by respondent No. 1. The claim amount was of Rs. 1,60,000/- as mentioned against Item No. 1 in the award itself but the arbitrators, in their best wisdom, awarded Rs. 22,000/- only. This itself shows that there was no agreement with respect to the claim of the claimant respondent No. 1 and, on the basis of this reasoning, the submission of the learned counsel for the respondent that award was passed by agreement is not factually correct. Hence, the objection is rejected. The learned counsel for the appellants challenged only two items. Claim No. 1 which was claimed by the claimant respondent No. 1 for transporting debris of dismantled material and claimant respondent No. 1 claimed Rs. 1,60,000/- against this head and the arbitrators awarded Rs. 22,600/- in favour of respondent No. 1 and against the appellants.
(3.) THE learned counsel for the appellants referred the condition of the tender notice which is mentioned in the letter dated 9. 9. 1988 sent to respondent No. 1 M/s Gouri Construction Company. In this letter at the last page, there is a column No. 7, which is as under: "nothing extra shall be paid for removing rubbish so released from the dismantled building and the same shall have to be dumped at a place as directed by the Engineer and have to be removed daily. " The learned counsel for the appellants, therefore, submitted that it is clearly mentioned in the condition of the tender that nothing extra shall be paid for removing rubbish from dismantled building and it is also clearly mentioned that the same shall have to be dumped at a place as directed by the engineer. Therefore, the award given by the arbitrator for transporting debris of dismantled material at Item No. 1 of the award is contrary to the terms of the contract. The learned counsel for the appellants further submitted that even as per the letter dated 23. 8. 1989 sent by the respondent No. 1. Gouri Constitution Company to the Divisional Superintending Engineer, Northern Railway, Jodhpur, it is clear that even in this letter, respondent No. 1 admitted that the dismantling of the portion of the building was started immediately after 21. 11. 1998 and, in this letter, the respondent No. 1 claimed revised rates of the items mentioned in page No. 4 of Items No. (a) and (b) but in this letter also the respondent never claimed any claim for transporting debris of dismantled materials. Not only this, even in subsequent letters there was also no demand for any payment against transporting debris or dismantled material and even if the respondent No. 1 has raised any demand for above claim, that cannot be accepted. The arbitrators have no jurisdiction to award any amount beyond the terms and conditions of the contract. ;