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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: JAI NARAIN MISRA

DATE OF JUDGMENT: 31/10/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M.

CITATION:  1970 AIR  753

ACT:     Arbitration-Award  when  vague  and  uncertain--Part  of award based on mistake may be struck out if separable.

HEADNOTE:     The  respondent, a building contractor, entered  into  a contract  with the Government of India for the  construction of  certain flats.  On disputes arising, they were  referred to  an  arbitrator.   the  arbitrator  made   an  award  and directed  certain sums to be paid by the Union of  India  to tile respondent.  Rupees twenty-two thousand two hundred and ninety two, annas five were to be paid as the amount due  to the respondent ’as calculated by the Union of India.  Rupees six  thousand  were  to be paid as the  amount  of  security deposit made by the respondent with the Union of India.  The third  item  was mentioned as Rupees seventy  nine  thousand three  hundred and thirty nine.  The. total  amount  payable was mentioned as Rupees one lakh seven thousand six  hundred and   thirty  one,  annas  five.  The  respondent  made   an application for modifying the award and for remitting it  to the arbitrator for reconsideration.  The Second Civil Judge, Kanpur  dismissed  the objections  and  pronounced  judgment according  to  the  award.  The appellant  filed  an  appeal against the order under s. 39 of the Arbitration Act,  1940. The  High Court allowed’ the appeal and set aside the  award on the ground that it was vague and uncertain.  According to the  High Court it was not clear why the arbitrator  awarded the  first item of Rs. 22,292/5/-and the third item  of  Rs. 79,339/-  separately.  Since the arbitrator found  only  the fir.st item of Rs. 22,922/5/to be due to the respondent, the High Court did not find it clear whether he intended also to award the 3rd item of Rs. 79,339/- to the respondent. As the dispute related to 29 items of claims and counter-claims the arbitrator,  according  to High Court, should have  made  an award  in  respect  of  all  the  items  separately  or   in combination or should have made a lump sum award in  respect of  nil the items.  Against the order of the High Court  the Union of India appealed to this Court with certificate. HELD:  The  reasoning  of  the.  High  Court  could  not  be accepted.     (i)  The award on the face of it professed to be of  and concerning  all  matters  submitted  for  arbitration.    In

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respect of all such matters the arbitrator awarded a sum  of Rs. 1,07,631/6/- to the respondent.  This amount was made of three sums separately mentioned in the award.  On the record there   was  nothing  to  show  that  the  award   was   not intelligible to the parties. [590 G]     The court leans towards the construction that the  award is  certain.  the evidence item No. 1  represented  the  sum admitted   the  sum  due  to  respondent  and  item  No.   3 represented the additional sum found by the arbitrator to be due to him. [590 H]     (ii)  The  arbitrator is not bound to give an  award  on each  point.  He can give his award on the whole  case.   An ’arbitrator  may award one sum generally in respect  of  all money  claims  submitted  to  him.  unless  the   submission requires  him  to award separately on some one  or  more  of them. 589 The arbitrator can lawfully make an award of a sum  admitted to be due and a lump sum in respect of the remaining claim.     As the final award in favour of the respondent professed to  be  made of and concerning all the matters  referred  to him,  it must be  presumed that in making it the  arbitrator had  taken  into consideration ’all the claims  and  counter claims.   The award must be held to be a final  and  certain determination of all the disputes referred. [591 C, D]     (iii)  The  mention  of the second item  of  Rupees  six thousand in the award was a mistake.  This part of the award being clearly separable must be struck out. The award of the sum  of  Rupees  six thousand was to the  advantage  of  the respondent and the court could not set aside an award at the instance of a party who had not suffered any injury. [591 F]     Mays  and  Anr. v. Cannel 24- Law Journal Q.B.  41,  45; Ghulam  Khan  v.  Mohammad Hassan I.L.R. 29  Cal.  167,  186 (P.C.);   Whiteworth   v.  Hulse  (1866)  L.R.  1  Ex.  251; Harrison  v. Creswick (1853) 13 C.B. 399, Jewell v. Christie (1867)  2  C.B.  296 and Narsingh Narain  Singh  v.  Ajodhya Prasad Singh, (1912) 15 C.L.J. 110, 113, referred to.

JUDGMENT:  APPELLATE JURISDICTION:  Civil Appeal No. 31 of 1966.     Appeal  from the judgment gad decree dated  December  5, 1962  of the Allahabad High Court in First Appeal from Order No. 260  of 1952. R.M. Mehta and S.P. Nayar, for the .appellant. A.K. Sen, S.V. Gupte and S.S. Shukla, for the respondent. The Judgment of the Court was delivered by Bachawat,  J. The respondent Jai Narain Misra is a  building contractor. On September 2, 1944, he entered into a contract (No.  ES. 2944) with the Government of India represented  by the Chief Engineer, Central Command, for the construction of additional quarters at T.P. 2 Kanpur. The contract contained an arbitration clause. Disputes between the parties relating to  the  contract were referred to Col. H.T.  Faithful.  The arbitrator made his award on May 19, 1947.  On November  15, 1947  the respondent made an application for  modifying  the award  and  for  remitting  it to  the  arbitrator  for  re- consideration.   On January 5,  1948,  he  filed  additional objections.   By his order dated May  26,  1952  the  Second Civil   Judge,   Kanpur,  dismissed  the   objections    and pronounced  judgment according to the award.  The  appellant filed  an  appeal  against  the order under  s.  39  of  the Arbitration  Act, 1940. By an order dated December 5,  1962, the High Court allowed the appeal and set aside the award on

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the  ground  that it was vague and uncertain.   The  present appeal has been filed by the Union of India on the  strength of a certificate granted by the High Court.     It  appears  that the respondent submitted 23  items  of claim to the arbitrator. By his letter dated May 6, 1947 he’ added  6  more items of claim.  The Union of  India  made  a counter-claim.  The 4Sup. C.I./69-5 590 arbitrator was thus required to decide 29 disputed items  of claim and the counter claim.  The award recited that certain differences  between the parties in respect of contract  No. ES. 2944 of 1944 had been referred to the arbitrator for his decision  and  that  a final award was  being  made  of  and concerning the matters referred to him. The relevant part of the award was as follows :--                      "I award and direct that the  following               sums   be  paid  by  the  respondent  to   the               claimant.                     Rupees  twenty two thousand two  hundred               and ninety two annas five being the amount due               to   the   claimant  as  calculated   by   the               respondent.                     (2) Rupees six thousand being the amount               of  security deposit paid by the claimant  and               now in possession of the respondent.                     (3)  Rupees seventy nine thousand  three               hundred and thirty nine.                     The  total  amount  to be  paid  by  the               respondent  to the claimant is  therefore  one               lakh seven thousand six hundred and thirty one               annas five.                     Each party to the dispute shall bear its               own-costs,  including  the cost of  the  stamp               duty on this award."     The  High  Court  held that the award  suffered  from  a patent  ambiguity  for the following reasons:   It  was  not clear  why  the  arbitrator awarded the first  item  of  Rs. 22,292/5  and  the 3rd item of Rs.  79,339  separately.  The arbitrator  found only the first item of Rs. 22,292/5 to  be due to the respondent, it was not clear whether he  intended also to award the 3rd item of Rs. 79,339 to the  respondent. As  the  dispute  consisted  of 29 items  of  claims  and  a counter-claim,  the arbitrator should have made an award  in respect  of  all the items separately or in  combination  or should  have made a lump award in respect of all the  items. We are unable to accept this line of reasoning.     The  award  on  the face of it professes to  be  of  and concerning  all  matters submitted to  the  arbitrator.   In respect of all such matters the arbitrator awarded ’a sum cf Rs. 1,07,631/5  to the respondent.  This amount was made  up of three sums separately mentioned in the award.  It was not the  case  of the  respondent in the Trial  Court  that  the award  was uncertain or not intelligible. The objection  was taken  for  the  first time before the High  Court.  On  the record  there  is  nothing to show that the  award  was  not intelligible to the parties.     The Court leans towards the construction that the  award is certain. Prima facie the award is good, and it is for the defendant 591 10  show that it is uncertain.  Per Jervis, C.J. in  Mays  & Anr.  v. Cannel(1).  There is no ambiguity about  the  first and  the  third  items  of  the  award.  The  uncontradicted evidence  of S. Choudhry, the witness for the Government  is

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"Item no. 1 of the award is that which was calculated by  us in  the  government bill. Item no. 3 is in  respect  of  the remaining  claim  of  the  plaintiff."   Item  no.   1  thus represents  the sum admitted by the government to be due  to the  respondent, and item no. 3 represents  the   additional sum found by the arbitrator to be due to him.     The  arbitrator  is not bound to give an award  on  each point.  He can make his award on the whole case, see  Ghulam Khan  v. Mohammad Hassan (1).  An arbitrator may award   one sum  generally in respect of all money claims  submitted  to him, unless the submission requires him to award  separately on  some  one or more of them, see Whiteworth  v.  Hulse(3). The arbitrator can lawfully make an award of a sum  admitted to be due and a lump sum in respect of the remaining  claim. As  the  final  award favour of the respondent professes  to be  made of and concerning all the matters referred to  him, it  must  be presumed that in making it the  arbitrator  has taken into consideration all the claims  and counter claims, see  Harrison  v. Creswick (4), Jewell  v. Christie (5).  We hold that the award is a final and certain determination  of all the disputes referred.     The  arbitrator made an award in respect of  the  second item  under some misapprehension.  The security  deposit  of Rs. 6,000 had been returned to the respondent and there  was no   dispute  about  it  before  the  arbitrator.   In   the circumstances, the arbitrator had no authority to award  Rs. 6,000  to  the   respondent   on  account  of  the  security deposit.   This part of the award is clearly  separable  and may be struck  out.  Moreover,  the  award  of Rs. 6,000  is to  the advantage of the respondent; and the  Court  usually declines  to set aside an award at the instance of  a  party who  has not suffered any injury by the error, see  Narsingh Narain  Singh v.Ajodhya Prasad Singh(6).  We find also  that the award of Rs. 6,000 is now of no consequence.  After  the award   was  made,  the respondent received  a  sum  of  Rs. 1,00,594/7  in   full settlement of  the  award,  presumably after giving the government credit for the sum of Rs.  6,000 already received by him.     We  therefore hold that there is no ground  for  setting aside  the award.  The award is not vague  and/or  uncertain and does not suffer from any other infirmity. (1) 24 Law Journal, Q.B. 41,45.  (2) I.L.R. 29 Cal. 167, 186 (P.C.). (3)  (1866) L,R. I Ex. 251.      (4) (1853) 13 C.B. 399. (15)  (1867) 2 C.B. 296.         (6) (1912) 15  C.L.J.  110, 113. 592     Mr.  Mehta  also contended that (1) the  appeal   before the High Court was not maintainable under ss. 17  and 39  of the  Arbitration  Act, 1940 and (2)  the  respondent  having received  payment  in  full  settlement  of  the  award  was estopped  from challenging it.  We do not find it  necessary to  decide these points in view of our conclusion  that  the award is not  liable to  be  set aside.     The appeal is allowed with costs in this Court, and  the High  Court.  The order of the High Court is set  aside  and the  order and decree passed by  the  Second  Civil   Judge, Kanpur,  is restored. G.C.                                        Appeal allowed. 593