NEELAKANTAN & BROS. CONSTRUCTION versus SUPERINTENDING ENGINEER, NATIONAL HIGHWAYS, SALEM & ORS.

SABYASACHI MUKHARJI, J. These are pet1t10ns under Article 136 of the Constitution seeking leave to appeal against the judgment and order of the High Court of Madras dated 3 lst July, 1987. The petitioner company undertook the work of widening and strengthening pavements in National Highway No. 7, Madurai-Kanyakumari Road from Reaches 37.6 k.m. to 2'13 k.m. on the Madurai- Kanyakumari Road and the work was divided into fourteen Reaches and 14 separate agreements were entered into between the petitioner and the Superintending Engineer, National Highways, Tirunelveli, respondent No. 3 to the present petitions. There is not much dispute on this point. At the relevant time, according to the petitioner, the Superintending Engineer, National Highways, Salem was one Thim Mohan. He entered into reference. He took up the matter for arbitration and called for st8ctements from the parties. Statements were filed before him and evidence were also adduced before him. But before he could complete the adjudication he was transferred and was succeeded by one Thim J.R. Cornelius, Superintending Engineer. The contention of the petitioner in this case was that he had no jurisdiction to proceed and complete the arbitration. It appears, however, that he entered into the task of adjudication with the knowledge and consent of the petitioner and the ,petitioner had participated actively in the proceeding before him. From the notices served by Thiru Mohan previously and subsequently by Thim Cornelius, it is apparent that the

p. 464, margin D

petitioner had knowledge of the change of the incumbent of the Superintending· Engineer who was to arbitrate in the matter.. This is evident from the documents appearing at pages 164 and 165 of the present paper book and both the parties had notice of the succession in office. The arbitrator could not complete the award within time :and there was need for extension of time. He wrote a lttter to the petitioner on 1st May, 1977 stating "extension of time was necessary to pass orders on reference and hearing has been concluded". In reply to that letter on 11th May, 1977 the petitioner agreed to such extension. The petitioner was content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence_. ln that light the arbitrator has made the award. This was challenged before the learned District Judge by means of a suit under sectidns. 30 and 33 of the Arbitration Act, 1940 that the previous arbitrator Thiru Mohan having entered into reference and Thiru Cornelius ·had no jurisdiction to conclude. It was violative of the principles of natural justice, it was submitted. But as mentioned hereinbefore, the petitioner had knowledge of the change of the incumbent.. He did not protest arid the proceedings went on before Thiru Cornelius. -It is apparendrom the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was the named arbitrator. The learned District Judge held that Thiru _Cornelius was competent to pass the award. The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner.

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Shr(A:·K. Sen, _learned counsel for the petitioners, urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of _the alleged defect arid bad acq4iesced in the proceedings before the successor, namely, Thiru .Cornelius;· we are of the opinion; that this contention of Shri Sen cannot be entertained. It was contepded that !here was violation ol.the principles of natural justice. This objection cannot be entertained. If .the parties to the reference either agree -beforehand to the method of appoiritni_ent, or afterwards acquiescence in the appointment made, with full knowledge of all the.circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attend1ng and taking part in the proceedings with full knowledge _of the relevant fact will amount to such_:_ acquiescence, explains Russell· on Arbitration. 18th Edition a.t page 105. This was stated by the Judicial Committee long ago in Chow4hury Murtaza Hossem v'- MUssilmat Bibi;Bechunnissa, 3 i.A. 209. See also the observations of P.B. Mukharji;J. in the decision of the Calcutta Hig_h Cour-t in.Jupiier General lnsurante Co._ Ltd. v. Corporation of Calcutta, A.I.R. 1956 Calcutta 470 at 472. This Court held in N. Challappan v. Secretary, Kera/a State Electricity Board and another, [1975] 1 S.C.C. 289 that acquiescence defeated the right of the appellant at a latter stage. See also the observations of this Court in Prasun Roy v. The Calcutta Metropolitan Development Authority and another, [1982] 2 Scale 125. See Russell on Arbitration, 20th Edition, pages 432-435. Shri Sen contended that no notice was issu.ed after the appointment of the new arbitrator. This was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider all the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced

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before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstate-. ment of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the

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award. There is no legal proposition which is the basis of the award, far less any legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The Court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitrator-See Champsey Bhara & Company v. Jivray Balla Spinning and Weaving Company Ltd., 50 I.A. 324 and the observations of Bachawat, J. in Firm Madan/al Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, [1967] 1 S.C.R. 105 of this Court.

p. 466, margin C

In the facts and circumstances of the case, in our opinion, this award is not assailable. The High Court was, therefore, right in upholding the learned District Judge's dismissal of the challenge to the award. These petitions, therefore, fail and are dismissed accordingly, without any order as to costs. N.P.V. Petitions dismissed.

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