AKHTAR TRADING CO. vs FOOD DEPARTMENT and otherss

1. ' This is an application whereby the arbitrator has filed an award in this Court. Initially the arbitrator had submitted an application alongwith the award on 23-12-1989. The office raised objection that the documents required under the Rules to be submitted with the award have not been filed alongwith it whereupon the arbitrator on 14-3-1990 submitted those documents alongwith the award. After 14-3-1990 notices were issued to the respective parties. The same were served on the parties on 21-4-1990 and 23-4-1990 respectively. The plaintiffs did not file any objections to the award. Even the defendants did not file their objections to the award within the period of 30 days provided under the law. The objections in the shape of written statement have been filed on 13-10- 1990 i,e. After about 5-1/2 months of the service of the notice. Hence the same cannot be taken into considerations at all.

2. ' Mr. S.Z.A. Qureshi, Advocate, who appeared for the defendants conceded that these objections cannot be considered as same were time-barred. He, however, submitted that the statute of limitation was not attracted if the award was a nullity in law. In this connection he relied upon PLD 1978 Kar. 205 Yousuf Aziz v. Ageela Begum. There can be no cavil with this proposition of law but there is no such defect in the award which renders it a nullity in law. Mr. Zaheer Qureshi, Advocate, pointed out that the arbitrator had not recorded evidence of witnesses on oath and had decided the case only on documents, hence the award is void. I do not agree with this contention. The law does not require the arbitrator to record the evidence on oath if the parties do not request him to do so. There is nothing wrong if the arbitrator decides the case merely on documents produced before him if the parties do not ask him to examine any witness.

3. It was next contended by Mr. Zaheer Qureshi, Advocate that the contractor before entering into the contract knew that he had to carry the articles via alternate longer route and, therefore, he could not have been granted escalation on account of the longer alternate route as was done by the arbitrator. This is a question of fact, and the finding of the arbitrator on this point cannot be C called in question in these proceedings particularly when the objections themselves are time- barred. Mr. Zaheer Qureshi, then submitted that the arbitrator had not filed the agreement with the award and, therefore, it would be presumed that there was no such agreement. He relied upon PLD 1981 Kar. 28 Shaikh Hassan Bux v. Zab Tun Textile Mill.

4. ' The contention of Mr. Zaheer Qureshi is not correct. The order of the Government to appoint an arbitrator under clause 16 of the contract has been produced. It is a proof of the aggreement itself.

5. Hence this point cannot be taken into consideration.

6. ' It has also been contended that the award of the arbitrator was based on his notion, based on morality and not on contractual liability and was therefore void. He relied upon PLD 1979 Kar. 250 Pakistan, Ministry of Commerce, Karachi v. M/ s. Rizvi & Co., Karachi. This ruling does not apply to this case at all. In the case under the ruling the arbitrator had given finding that the defendants had not committed breach of contract yet he granted compensation to the plaintiff on compassionate grounds. In the present case it is not so. Compensation has been granted as the plaintiff had been compelled to transport the material by longer route. Hence he was entitled to escalation.

7. Hence I am satisfied that the objections filed by the defendants being time-barred cannot be taken into consideration. The award does not suffer from D any illegality on the face of it. Hence I overrule the objections and make the award the rule of the Court. Let the decree be framed in accordance with the award.

8. ' Award made rule of the Court.

9. ' Article 244, Constitution of Pakistan (1973) requires making of oath by.