MAK CONSTRUCTION' LIMITED vs NATIONAL BANK OF PAKISTAN
This civil petition for leave to appeal arose from a dispute between a construction company and the National Bank of Pakistan regarding a contract for constructing a building in Gujranwala. Following differences over whether the construction was to be completed in phases, the matter was referred to arbitration. The arbitrator rejected the petitioner's claim, prompting the petitioner to file an objection petition before the Senior Civil Judge, Lahore. The trial court dismissed the objections and made the award the Rule of the Court, holding that the objections concerned questions of fact and did not constitute misconduct by the arbitrator. The High Court dismissed the appeal, finding no misreading of evidence and noting that the petitioner never pressed for framing issues or adducing evidence. The Supreme Court of Pakistan affirmed the concurrent findings of the courts below, holding that the factual determinations of the arbitrator were correct and that there was no merit in the petition. The Court laid down the principle that courts will not interfere with an arbitrator's factual findings unless misconduct or misreading of evidence is clearly established.
- Can a civil court interfere with an arbitrator's findings on questions of fact in the absence of misconduct or misreading of evidence?
- Is a party entitled to object to the non-framing of issues by the trial court if it failed to press for the framing of issues or the adducing of evidence during the proceedings?
- Whether concurrent findings of the trial court and the High Court upholding an arbitration award can be overturned by the Supreme Court without proof of jurisdictional error or material irregularity?
ORDER
MIAN BURHANUDDIN KHAN, J.--According to the petitioner it is a limited Company registered under the Companies Act, engaged in the construction work as Contractors and Mr. Shoaib is the Managing Director of the petitioner-Company.
2. Respondent National Bank of Pakistan issued a notice for pre---qualification of Contractors for the construction of its building in Civil Lines, Gujranwala. The petitioner, along with other contractors, submitted details asked for in this connection. Their pre-qualification was accepted and accordingly tender documents were issued to them. After the acceptance of the tender of the petitioner-Company they were informed vide letter No. Eng/HO/83/1675, dated 9-4-1981 and an agreement regarding the work was concluded wherein it was stipulated that the building was to be completed within a period of 18 months and payment of 10$ of the estimated cost as mobilization advance, against bank guarantee to be furnished by the petitioner-Company.
3. Later on there arose some differences between the petitioner --Company and the respondent- Bank which subsequently developed into a dispute precisely to say that the agreement for construction of the building between the petitioner and respondent was executed with regard to the work relating to one unit. According to the petitioner, there was no indication in the Contract that the construction work was to be done in phases. Had this been the position the period for each phase would have been specified. The petitioner-Company submitted construction schedule spreading over the period of construction not only along with the tender but also on the date of opening of the tenders but no objection was raised by the respondent-Bank.
4. The matter was referred to the Arbitrator who, vide his award, dated 23-9-1982 rejected the claim of the petitioner. Petitioner, aggrieved from the said 'award, filed objection petition before the Senior Civil Judge, Lahore who per order, dated 20-2-1983 gave the following finding: "Anyhow the objector's contentions are also considered. The objector has mainly confined to certain matters which are purely question of facts and which can only be decided and adjudicated upon by the arbitrator himself. The Court cannot, therefore, in such matters and what objector has stated in the grounds mentioned in the objection petition, do not constitute by any stretch of imagination, to be misconduct on the part of the arbitrator or to hold that the arbitrator has miss conducted the proceedings."
Accordingly, the learned Senior Civil Judge dismissed the objection petition filed by the petitioner and made the award, dated 23-9-1982 Rule of the Court vide his judgment, dated 20-2-1983. The learned High Court Judge after summoning the record of the proceedings before the arbitrator held as follows:-- "The contention of the learned counsel for the appellant that the evidence of various witnesses had been incorrectly reproduced by the arbitrator in his award was not found to be correct on verification with the original record. The arbitrator after receiving and examining the evidence of the parties, reached the conclusion that drawings, etc. For constructing the building in two phases were given to the appellant which was bound to carry out the construction in two phases. The finding of the arbitrator is not shown to be based on any misreading or misinterpretation of evidence produced before him. The grievance of the learned counsel for the appellant that the learned trial Court did not frame issues and did not give opportunity to the appellant to lead evidence in support of its objections, is without force because as the perusal of the record shows the appellant never pressed for the framing of issues nor for adducing evidence, its counsel simply addressed arguments without any demur------------------------"
Learned counsel for the petitioner reiterated all the grounds of objection raised in the Court of first instance regarding arbitrator's findings. Suffice to say that there is no force in the contentions raised by the learned counsel before us. The matter has been considered by the learned trial Court as well as by the first appellate Court and both the Courts have come to the correct conclusion regarding the question involved in the petition. We find no merit in this petition which is, accordingly, dismissed.