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TMI Blog2004 (4) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... , stipulated that the entire work was to be completed within 36 months from the date of handing over the site which would be within one month from the date of issue of acceptance letter. It was further stipulated that the notice of tender shall form part of the contract. It appears that the Union of India proposed an alternative design and in response thereto the contractor by his letter dated 25.8.1983 made an offer on the terms and conditions stipulated therein, clause 6 whereof reads as under : "All other terms and conditions will be as per NIT except that the tender is valid for all the 6 bridges and cannot be divided. To avail the coming working season if the work is allotted within 60 days of opening of the tender, we are ready to offer suitable rebate." The Union of India in response thereto showed its inclination but requested the contractor to withdraw various stipulations/conditions specified in his tender in terms of a letter dated 30.09.1983 stating: "You are requested to withdraw various stipulations/conditions specified by you in your tender as brought out above. In case you consider that the withdrawal of the stipulation/conditions involve financial effect you ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole, without breaking up the same partwise as referred to in para 5 of your letter no.27537/DGBRE/VTK/72/E8 dt. 30th Sep. 1983. Hope this clarified all the points raised by you." The said offer was, thus, again a conditional one. The Central Government by a letter dated 1.3.1984 addressed to the Director General Border Roads, conveyed the sanction of the President to the variation from the standard and special conditions of the contract, inter alia, stating : "Mobilisation Advance After acceptance of the tender and at the time of placing the work order on the contractor he shall be paid on demand 10% interest free mobilization advance of the contract value against the bank guarantee bond from a Scheduled Bank. The loan advance shall be recovered proportionately from his 'on account' payment made to him under the contract and in such a way that by the time 50% of the work is completed the entire advance would be recovered. The first installment commencing from the first on account payment and Bank Guarantee Bond will be released for the adjusted amount. If the advance thus made is utilized by the firm for purpose other than for which it was provided the entire advance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah Bridge, the award of Rs. 5,00,000/- for the damages caused to the contractor although justified but as the contractor made two offers of rebate in terms of its letters dated 25.8.1983 and 22.11.1983 which had not been considered by the learned Arbitrator, the award in respect thereof was not sustainable, and a part of the award could be served, it set aside the award for a sum of Rs. 7,38,000/-. The parties are in appeals before us against the said judgment. Mr. K.K. Rohtagi, learned counsel appearing on behalf of the appellant, would, inter alia, submit that the award being a non-speaking one and having regard to the fact that the learned Arbitrator in his award categorically stated that he had taken into consideration all the documents, the High Court must be held to have committed a manifest error in interfering therewith. The learned counsel would contend that the two offers of rebate referred to by the High Court in the impugned judgment being conditional ones and the conditions precedent therefor having not been fulfilled, the contractor was entitled to make his claim on rebate. According to the learned counsel, one of the rebates was offered if the amount of 10% mobiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidently was, thus, a subject matter of determination by the Arbitrator. An Arbitrator being a judge chosen by the parties, his decision would ordinarily be final unless one or the other condition contained in Section 30 of the Arbitration Act is satisfied for the purpose of setting aside his award. Once it is held that the construction of an agreement fell for consideration of the Arbitrator, the determination thereupon shall not ordinarily be interfered with. The court's jurisdiction in this behalf is merely to see whether the Arbitrator has exceeded his jurisdiction or not. The High Court did not point out any material on the basis whereof it could be said to have been established that the two documents in question had not been considered by the learned Arbitrator. Such a conclusion could be arrived at if the award was a speaking one. The award being not a speaking one, the averments made therein should be accepted at their face value unless contrary is proved by the party questioning the validity of the award. The learned counsel appearing on behalf of the Union of India has failed to point out that any material was brought on records on the basis whereof the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide or to adjudicate on a dispute raised by the claimant or there is a specific bar to the raising of a particular dispute or claim then any decision given by the arbitrator in respect thereof would clearly be in excess of jurisdiction. In order to find whether the arbitrator has acted in excess of jurisdiction the court may have to look into some documents including the contract as well as the reference of the dispute made to the arbitrators limited for the purpose of seeing whether the arbitrator has the jurisdiction to decide the claim made in the arbitration proceedings." In Rajasthan State Mines & Minerals Ltd. vs. Eastern Engineering Enterprises and Another [(1999) 9 SCC 283], this Court, opined : "44. (a) It is not open to the Court to speculate, where on reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. (b) It is not open to the Court to admit to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of the award. (c) If the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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