HARBANS LAL, J. - (1.) THIS civil special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been preferred from the order dated December 4, 2001 passed by the learned Single Judge whereby the order dated 17. 3. 2001 passed by the learned District & Sessions Judge, Jaipur City, Jaipur making the award of the sole Arbitrator as rule of the court with certain modifications has been upheld and the appeal has been dismissed.
(2.) THE relevant fact are that an agreement was executed on 8. 10. 1989 between Kuldeep Dhankar (hereinafter to be referred as "the Claimant") and the appellant-Union of India for publishing the English Edn. of Jaipur Telephone Directory for the year 1987, 1988 and 1989. THE trouble between the parties started when the non-claimant in its communication dated 22. 12. 1988 communicated that the Directories sent by the claimant on 21. 12. 1988 were not being accepted. THE core controversy between the parties is reflected from the communication dated 9. 1. 1989 sent by the non- claimant to the claimant. THE essence of this communication is, as under:- " THE telephone directory sent by you on 21. 12. 1988 may be accepted subject to the following conditions: i. That there has been a delay of 52 weeks in supply of Directory and as per the clause 16 of Annexure `a' of the contract, the contractor is liable to pay the penalty of Rs. 2000/- per week or part thereof, amounting to a penalty of Rs. 1,04,000/ -. ii. That 121 yellow pages have been printed as against the limit of 66 as per the contract, thereby exceeding the number of yellow pages by 55. As the directory has already been printed and to avoid any further delay, it has been decided that the royalty payable shall now be Rs. 92,000/- for the 1987 issue plus Rs. 92,000/- assuming as if one more issue has been printed by you. Thus the total royalty of Rs. 1,84,000/- has to be paid by you. iii. That a sub contract has been entered into without taking prior written consent of G. M. T. D. Jaipur. As the directory is already ready, and to avoid any further delay, permission is hereby granted for sub contract for 1987 issue only. It should be noted in future prior written consent of G. M. T. D. Jaipur must be taken as and when required. iv. It is, therefore, required that you should deposit a total amount of Rs. 2,88,000/- (two lacs eighty eight thousand only) against the penalty for delay and excess yellow pages and royalty by demand draft within ten days of the issue of this letter. Also the balance amount of Directory should be supplied within this period so that the total supply should be 45,000 as per the contract. " The non-claimant determined the contract vide its communication dated 14. 3. 1999 which provided that the contract shall automatically be rescinded on 30. 3. 1989 and the bank guarantee for a sum of Rs. 2,50,000/- furnished by the claimant shall stand forfeited. The claimant then took steps under Section 20 of the Arbitration Act, 1940. When inspite of the order passed by the learned District & Sessions Judge, Jaipur City, Jaipur the Arbitrator did not enter the Reference, the matter came to be decided by the Hon'ble Chief Justice under order dated December 17, 1996. Pursuant to and in compliance of the aforesaid order dated December 17, 1996, the learned District & Sessions Judge, Jaipur City, Jaipur with the agreement of both the parties and under his order dated 19. 3. 1997 appointed Mr. S. R. Bhansali as the sole Arbitrator who after entering the Reference and issuing notices to both the parties required them to file their claims along with the supporting material. The non-claimant preferred a claim of Rs. 53. 25 lacs while the claimant putforth a counter claim of Rs. 42. 34 lacs. On the basis of stand taken by the parties and their pleadings, the following four issues were framed by the sole Arbitrator:- " 1. Whether there was delay of 52 weeks in the publication of the directory by the claimant? If so, whether the claimant was solely responsible for this delay? 2. Whether the yellow pages in the directory happen to be more than fifty percent of the page of the directory as stipulated in the agreement? 3. Whether the determination of the contract in consequence of the communication dated March 14, 1989 can be taken to be legal and proper? 4. Whether the action of the non-claimant in not utilizing the Directory supplied by the claimant was not arbitrary and unfair to the claimant?" After a thorough consideration of the submissions and materials placed before him, the sole Arbitrator held that the claimant had duly published the telephone directories and had sent one consignment by truck to the non-claimant on 21. 12. 1988 which was not accepted for the reasons mentioned in its letter dated 9. 1. 1989. The crucial issues which required adjudication by the sole Arbitrator were; (i) whether there was delay of 52 weeks in the publication of the directory? and (ii) whether the number of yellow pages in the directory exceeded the permissible limit?
(3.) THE Arbitrator after taking into consideration the material on record came to a definite finding that the delay of 52 weeks in the publication of the directory was not at all attributable to the non-appellant-claimant and he had acted as per the agreement. THE sole Arbitrator further held that the number of permissible yellow pages in the directory did not exceed the permissible limit. When the matter was taken to the learned District & Sessions Judge, Jaipur City, Jaipur for making the award of the sole Arbitrator as the rule of the court, the appellants preferred objections and resisted the making of the award rendered by the Arbitrator as rule of the court but, the learned District & Sessions Judge, Jaipur City, Jaipur by a very detailed and well considered judgment dated 17. 3. 2001 held that there was no valid, factual or legal basis on the basis of which the award could be set-aside. THE learned District & Sessions Judge also concluded that there was no misconduct whatsoever on the part of the sole Arbitrator. Accordingly, he disallowed the objections and made the award rule of the court according to which, the claim to the extent of Rs. 43. 93 lacs in addition to interest of Rs. 52,16,750/- upto 26. 4. 1998 was allowed and interest on Rs. 43. 93 lacs from 26. 4. 1998 till payment @ 12% p. a. was also allowed. The appellants herein preferred appeal under Section 39 (1) of the Arbitration Act, 1940 which was dismissed by the learned Single Judge after hearing the learned counsel for the parties as having no merit vide impugned-order dated December 4, 2001 and the order of the learned District & Sessions Judge, Jaipur City, Jaipur dated 17. 3. 2001 was upheld and affirmed, which order is under challenge in this special appeal. We have heard learned counsel for the parties. ;