JUDGMENT S.K. Agarwal, J.
1. This order will dispose of the objections filed by the respondent - Delhi Development Authority, against the Award of respondent No. 2 dated 25.9.1996 deciding some of the claims in favour of the petitioner and rejecting the counter claim of the respondent.
2. Brief facts are : that the petitioner (contractor) entered into an agreement with the respondent - (DDA) for execution of the work "Development of Rohini Project Phase I upto Madhuban Chowk (2a to 2c) SH Outfall Storm water drain No. 2 alongwith outer Ring Road." The work commenced with effect from 27.11.1988 and was required to be completed on 26.11.1989, but was actually completed on 26.6.1990. After completion of the work, the contractor claimed extra payment for the work executed in or under water and the same was sanctioned by the Competent Authority and conveyed to the petitioner vide letter dated 16th August, 1990. On 22.3.1995, under clause 25 of the Contract Agreement, the disputes between the petitioner and the respondent were referred to the sole arbitrator, the Super intend ant Engineer, DDA. Both the parties filed their respective Claims/Counter claims. On 25.9.96, the arbitrator published the award in favour of the petitioner, awarding Rs. 8,500/- on account of balance amount towards the final bill (Claim No. 1); Rs. 1 lakh on account of security deposit lying with the department (claim No. 2) and Rs. 4,70,244/- for the work executed in or under sub soil water (claim No. 4 and counter claim No. 1). Interest at the rate of 12% per annum with effect from 28.3.1995 was also awarded. It is a reasoned award.
3. I have heard learned counsel for the parties and have been taken through the award as well as relevant clauses of the contract.
4. Learned counsel for the Respondent - DDA challenged the award regarding claim No. 4 and counter claim No. 1, of Rs. 4,70,244/- on account of the recovery made by the department in respect of the work executed in or under water. It was argued that the same is totally arbitrary, capricious and without jurisdiction, as such payment is prohibited by clause 73 of the Additional Specification and Special Conditions for execution of the work. Learned counsel for the petitioner/claimant argued that Clause 73 could have applied if in the schedule of quantities some rates were provided for executing the work in/or under water, It is not so. The schedule of quantities did not provide for any payment for executing the work in/or under water conditions, therefore, Clause 73 does not apply. Alternatively, it Was argued that even if the interpretation put on Clause 73 was a possible interpretation, the view taken by the arbitrator cannot be set aside, while considering objection under Section 30 of the Arbitration Act.
5. In order to appreciate the rival contentions, it is necessary to refer to Clause 73 of the General Conditions of the Contract, which reads as under:
"Nothing extra over & above the rates provided in the schedule of quantities, for executing in/or under water shall be paid for pumping and bailing out water by any method lowering of sub-soil water level during execution of work."
6. Mere reading of Clause 73 shows that it prohibits any extra payment to the contractor for working in/or under water or for bailing out water by any method. This clause is clear and explicit. It does not admit any doubt. Law in this regard is well settled by several authoritative pronouncements of the Apex Court.
7. In Steel Authority of India Ltd. v. J.C. Bidhraja, Government and Mining Contractor, after taking into consideration several earlier decisions it was held:
"It is to be reiterated that to find out whether the arbitrator has travelled beyond his jurisdiction and acted beyond the terms of the agreement between the parties, the agreement is required to be looked into. It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases whether there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction. Whether the arbitrator has acted beyond the terms of the contract or has travelled beyond his jurisdiction would depend upon facts, which however would be jurisdictional facts and are required to be gone into by the court. The arbitrator may have jurisdiction to entertain claim and yet he may not have jurisdiction to pass award for particular items in view of the prohibition contained in the contract and, in such cases, it would be a jurisdictional error. For this limited purpose reference to the terms of the contract is a must. Dealing with a similar question this Court in New India Civil Erector (P) Ltd. v. Oil and Natural Gas Corp, (SCC P. 79, para 9)."
"It is axiomatic that the arbitrator being a creature of the agreement must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account."
8. In Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and Anr., , it was held:
"Further, in the present case, there is no question of interpretation of Clauses 17 and 18 as the said clauses are so clear and unambiguous that they do not require any interpretation. It is both, in positive and negative terms by providing that the contractor shall be paid rates as fixed and that he shall not be entitled to extra payment or further payment for any ground whatsoever except as mentioned therein. The rates agreed were firm, fixed and binding irrespective of any fall or rise in the cost of the work covered by the contract or for any other reason or any ground whatsoever. It is specifically agreed that the contractor will not be entitled or justified in raising any claim or dispute because of increase in cost of expenses on any ground whatsoever. By engorging the said terms the arbitrator has travelled beyond his jurisdiction as his existence depends upon the agreement and his function is to act within the limits of the said agreement. This deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part but it may tantamount to mala fide action."
9. In the present case, Clause 73, does not require any interpretation. It clearly provides that the contractor shall not be entitled, for an extra payment for executing any work in/or under the water or for pumping and bailing out water by any method, for lowering of sub-soil water level during execution of the work. It prohibits any extra payment both in positive and negative terms. It provides that contractor shall not be entitled to get any extra payment over and above the rates mentioned in the schedule. The Arbitrator being the creation of the contract between the parties, could not nave travelled beyond the contract or ignore the specific term of the contract. In this case, Clause 73 does not permit any extra payment for doing the work in or under water. The arbitrator thus travelled beyond the contract and committed jurisdictional error by holding it otherwise. The award on this score is not sustainable.
10. Learned counsel for the petitioner/contractor next argued that the work commenced with effect from 27th November, 1988 and was completed on 26th June, 1990; after completion of the work payment for the items relating to the work executed in/or under water were duly sanctioned by the competent authority and conveyed to the petitioner vide letter dated 16th August, 1990. Under proviso to Clause 29(2) of the Contract Agreement between the parties the Respondent - DDA is not entitled to recover any sum as these payments were agreed upon and settled between the Superintendent Engineer or the Executive Engineer, on the one hand and the contractor, on the other Clause 29(2), on which the reliance was placed reads as under:-
Clause 29(1) xxxxxxx (2) xxxxxxxxxx.............
Provided that DDA shall not be entitled to recover any sum overpaid, nor the contractor shall be entitled to payment of any sum paid short, where such payment has been agreed upon between the Superintending. Engineer or Executive Engineer on the one hand and the contractor on the other under any term of the contract permitting payment for work after assessment by the Superintending Engineer or the Executive Engineer.
It was further argued that the arbitrator is the best Judge for the quantity and quality of evidence, and if the interpretation put by the arbitrator on a particular clause of agreement was a possible interpretation, the award would not be set-aside merely, because a different view could be taken. Reliance in this regard was placed on the Supreme Court decision.
11. In Sudarshan Trading Co. v. Government of Kerala, , it was held:
"It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. In the instant case the arbitrator has merely set out the claims and given the history of the claims and then awarded certain amount. He has not spoken his mind indicating why he has done what he has done; he has narrated only how he came to make the award. In absence of any reasons for making the award, it is not open to the court to interfere with the award, Furthermore, in any event, reasonableness of the reasons given by the arbitrator, cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the court questions and considers. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator."
12. There can be no dispute about the proposition that it is not open for the court to prove into the mental process of the arbitrator and speculate as to what impelled the arbitrator to arrive at the conclusion. The arbitrator is also the sole judge of evidence and it is not open for the court to take upon itself the task of appreciating the evidence before the arbitrator as an appellate court.
13. In this case as noticed above proviso to Clause 29 (2) of the agreement provides that the respondent - DDA shall not be entitled to recover any sum overpaid, where such payments have been agreed between the Superintending Engineer or the Executive Engineer and the contractor. The arbitrator in this connection observed the following:
The counter claim is for a sum of Rs. 4,70,244/- on account of recovery initiated by the respondents in respect of the work executed in or under water. Admittedly the item in relation to work executed in or under water was sanctioned by the competent authority and duly conveyed vide letter No. F96/EE(P)/IE/SE/(T)/R/90/DDA/106, dated 16.8.1990. The claimants stated that the work was actually completed on 20.6.90. The item was sanctioned by the competent authority i.e. Chief Engineer (Rohini) on 16.8.90 filed as exhibit R- 1. The item was sanctioned by the competent authority after it was duly recommended on merits by the EE & SE. The item was sanctioned after two months of actual completion after considering all the conditions, clauses existing in the agreement. The claimants relied on Clause 29 (2) of the agreement and stated that the item paid with the approval of EE/SE cannot be recovered. In this case, the item was duly sanctioned by the competent authority, i.e. Chief Engineer (Rohini).
14. The respondents relied on Clause 7 of the agreement. I find that Clause 7 is not applicable to the facts and circumstances of this case."
Admittedly, this claim of the contractor was recommended on merits by the Executive Engineer and the Superintendent Engineer and on the basis of these recommendations, Chief Engineer (Rohini), of the respondent - DDA sanctioned the payment. It was done two months after the completion of the work. Proviso to Clause 29(2) of the contract may be capable of two interpretations. One that this proviso has to be read subject to Clause 73 of the general conditions of the contract, which prohibits any extra payment over and above the rates provided in the schedule of quantities. Other equally plausible view can be that it is to be read independently and once any payment is recommended or sanctioned particularly after the work is already executed, and the same is accepted by the contractor, it should be deemed to be an agreed payment between the contracting parties. While interpreting Clause 29(2) of that contract the arbitrator held that the items paid with the approval of the Executive Engineer/Superintendent Engineer cannot be recovered by the respondent - DDA. The view taken by the arbitrator is a possible view. It cannot be said to be either arbitrary or capricious so as to warrant interference with the award. Thus the objection is not sustainable.
15. For the foregoing reasons, award dated 25.9.1996 is made rule of the Court and a decree in terms thereof be drawn. If the amount under the award is paid within two months from today it shall not carry any future interest. However, if the payment is not made within two months, the award shall carry further interest at the rate of 12% from the date of the decree till realisation. No order as to costs.