JUDGMENT [ENTITY], J.
1. By this petition, the petitioner-[ENTITY] ([ENTITY]) is challenging an Award dated 4th December, 2001 whereby the learned Arbitrator has rejected the claim of the petitioner-[ENTITY] for refund of Rs. 39,31,920/- along with the Transportation Charges etc. of Rs. 73,920/- from the respondent with regard to the supply of 77,400 liters of linseed oil.
2. The brief facts of the case are that, in response to the tender of the petitioner-[ENTITY] the respondent had supplied 77,400 liters of Linseed Oil valued at Rs. 39.32 lakhs by their supply order dated 20th November, 1998. In terms of the said supply order, the material was to be offered for inspection on or before 20th December, 1998 and the date of offering of the material for sampling/banding was to be treated as the date of delivery. In terms of Clause No. 10 of the said supply order relating to the inspection, the Linseed Oil sampled/bonded and accepted after Lab Test was further liable for testing at destination and if found sub-standard the Contractor was liable to replace the same free of cost. It appears that pursuant to the terms of the supply order, an inspection was offered by the respondent of the said material on 19th December, 1998 and ultimately the samples were bonded and sealed on 28th December, 1998 by the officials of the petitioner-[ENTITY] from Chennai. It appears that the samples which were taken before bonding, were tested by the officials of the petitioner-[ENTITY] in their Laboratory and the said samples were found confirming the standards prescribed. Ultimately, the material viz, the Linseed Oil contained in 387 Barrels was despatched in the presence of the petitioner-[ENTITY] officials in terms of the despatch report issued by the team of the petitioner-[ENTITY]- officials dated 7th January, 1999. The said material was despatched by road transport arranged by the petitioner-[ENTITY]. It appears that the said material reached the destination viz. Nhava-Sheva Port during the period from 11th January, 1999 to 18th January, 1999 by 9 different lots.
3. It may be noted here that before the aforesaid 387 Barrels were despatched from Chennai the samples were tested and after the laboratory tests were found confirming the standards prescribed, the said material contained in 387 Barrels was despatched. It appears that the petitioner-[ENTITY] had released the entire payment for the aforesaid supply of 387 Barrels of Linseed Oil, on 19th January, 1999. It may also be noted here that before receiving the payment, the respondent had given an undertaking dated 13th January, 1999 that they would replace the material if found to be of sub-standard quality.
4. It is the case of the petitioner-[ENTITY] that after receiving the entire consignment on 18th January, 1999, the petitioner-[ENTITY] had re-tested the aforesaid Oil twice, and they received the test reports dated 3-2-1999 and 25-2-1999 from the Laboratory to the effect that the samples did not confirm with the prescribed specifications. The petitioner-[ENTITY] therefore called upon the respondent to replace the said material as per their undertaking dated 13th January, 1999 as mentioned hereinabove. Finally when the respondent failed to respond to the notices of the petitioner-[ENTITY] dated 9-2-1999 and 6-7-1999, the petitioner-[ENTITY] had initiated the arbitral proceedings thereby invoking the arbitral clause in the agreement and accordingly filed the statement of claim for Rs. 40,05,840/- along with interest and costs before the sole Arbitrator.
5. In the aforesaid arbitral proceedings before the learned Arbitrator, the respondent by their reply had resisted the claim of the petitioner-[ENTITY] and denied their liability for the refund of any amount. The respondent had contended before the learned Arbitrator that they were not liable to refund any amount and it was categorically contended that 77,400 liters of Linseed Oil was duly supplied to the petitioner-[ENTITY] in 387 barrels as per the specification of the petitioner-[ENTITY]; that the said barrels were taken charge by the petitioner-[ENTITY] on being satisfied with the test report and that the said material contained in 387 barrels was despatched in presence of [ENTITY] officers on 7th January 1999 by road transport arranged by [ENTITY] from Chennai to Nhava-Sheva Port. It was the case of the respondent before the learned Arbitrator that the Linseed Oil when tested at Channai was as per the specification prescribed by the [ENTITY] and was in conformity with the standards prescribed, and therefore the question of re-testing and re-sampling at the destination under Clause 10 of the Supply Order did not arise at all as the said material was never used by the [ENTITY]. The respondent had also contended that as per Clause 14 of the Supply Order, the [ENTITY] was supposed to make 100%, payment upon satisfactory inspection and proof of desptach. It appears that the [ENTITY] had made full payment on 19th January, 1999 in response to the respondent's letter dated 13th January, 1999. It was the case of the respondent that the handwritten words below the letter dated 13th January, 1999 were added subsequently at the insistence of the petitioner-[ENTITY] whereby an undertaking was given with regard to re-testing. It was contended by the respondent that the re-sampling at the destination either on 19th January, 1999 or on 11th February, 1999 was behind the back of the respondent. Another vital aspect to be noted here is that the aforesaid 387 drums were lying on Nhava-Sheva Port from 19th January, 1999 to 11th February, 1999, during which time the petitioner-[ENTITY] had again taken the samples which were not in the presence of the respondents officials. Under the aforesaid facts and circumstances, the respondent had also strongly disputed the correctness and authenticity of the samples of the said material which was lying on the Nhava-Sheva Port, and as such the respondent had contended that the test reports dated 3-2-1999 and 25-2-1999 ought not to be relied upon. Based on the above facts, the learned Arbitrator had formulated various issues and finally came to the conclusion that the petitioner-[ENTITY] was not entitled to claim refund of the amount of Rs. 39,31,920/- being the value of the Linseed Oil which was supplied by the respondent in 387 barrels.
6. The learned Arbitrator had formulated 7 issues and analysed the same in detail and has given a categorical findings with regard to the same, and finally came to the conclusion that the petitioner-[ENTITY] was not entitled to refund of the said amount of Rs. 39,31,920 and accordingly rejected the claim of the petitioner-[ENTITY].
7. Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] has very strongly urged that the learned Arbitrator has not strictly followed the provisions of the contract and that the learned Arbitrator has acted contrary to the provisions of the contract entered into between the parties. The main contention of the learned Counsel for the petitioner-[ENTITY] is that the petitioner-[ENTITY] was entitled to re-testing of the material at the destination and on such re-testing the material was found of sub-standard quality and therefore the petitioner-[ENTITY] was entitled to reject the said material and to get the said material replaced from the respondent. There is no dispute in this case that the sampling/bonding as well as the testing of the material was done before despatching the said material in 387 barrels from Chennai to Nhava-Sheva Port. The test report also indicated that the samples were found to be in conformity with the standards prescribed by the [ENTITY]. Even the said material was despatched in the transport engaged by the [ENTITY]. There is also no dispute that as soon as the samples were taken, all the 387 drums were duly sealed. In fact, the record also indicates clearly that, before all the aforesaid 387 drums of Linseed Oil were loaded on the trucks engaged by the [ENTITY], they were all in a sealed condition. It may be noted here that while sealing of those drums the representatives of the petitioner-[ENTITY] were also present. Hence, there is no dispute that when the aforesaid 387 drums of Linseed Oil were despatched from Chennai they were all in a sealed condition.
8. Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] has contended that the petitioner-[ENTITY] found the said Linseed Oil to be of substandard quality at re-testing and in view thereof, they were fully justified in rejecting the said Linseed Oil or getting the said Oil replaced by the respondent, and as such, the Award passed by the learned Arbitrator could not be sustained and the petitioner-[ENTITY] is very much entitled to the refund of an amount as stated hereinabove. Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] brought to my notice the relevant condition in the purchase order in Clause 10 dealing with the Inspection viz. "The Linseed Oil sampled/bonded and accepted after lab test is further liable for testing at destination and if found substandard, the Contractor is liable to replace the same free of cost". In addition to the above, Mr. [ENTITY] also referred to the general conditions prescribed by the petitioner-[ENTITY] with regard to the purchase of Chemical, whereof, Clause 14.18.5 reads as under :
"[ENTITY] reserves the right to inspect/test the material at destination on receipt and such results shall be final and binding on the supplier. Destination sampling and testing will be resorted only on such occasions when there is a failure in performance of the supplied material as observed by the user. Bidders taking exception to destination sampling, testing and free replacement on freight pre-paid basis if found substandard on testing at destination will not be considered."
Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] has therefore contended that both the above clauses clearly indicate that the [ENTITY] had a right to inspect the material at the destination and to get the said material replaced from the supplier if found substandard in re-testing at destination. Factually, there is no dispute between the parties that the aforesaid Linseed Oil contained in 387 barrels, which was despatched from Chennai, and reached Nhava-Sheva Port was never used by the [ENTITY]-petitioner. It is the case of the petitioner-[ENTITY] that after the aforesaid 387 drums were landed at Nhava-Sheva Port the [ENTITY] Officials had again taken samples from the said drums and got them tested and on such re-testing it found to be of sub-standard quality and as such the [ENTITY] wanted to get the same replaced and called upon the respondent to refund the aforesaid amount back to the petitioner-[ENTITY]. Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] has contended that the learned Arbitrator has mis-conceived the aforesaid provisions of the contract and has acted contrary to the provisions of the contract, which is an error apparent on the face of the record, and as such, this Court ought to set aside the said Award passed by the learned Arbitrator.
9. Mr. [ENTITY], the learned Counsel for the petitioner-[ENTITY] in support of his arguments, has referred to and relied upon various Judgments of the Hon'ble Supreme Court. Firstly, he referred to the judgment in the case of [PRECEDENT], , wherein the Supreme Court found that the Arbitrator had not applied his mind to important terms of the contract between the parties and had not applied such terms to the circumstances of the case. Thereafter referring to the judgment of the Supreme Court in the case of [PRECEDENT]., , Mr. [ENTITY] strongly referred to and relied upon Paragraph Nos. 23, 26, 27, 28, 29, 30 and 31 of the said judgment, which read as under :
"23 These four claims are not payable under the contract. The contract does not postulate - in fact it prohibits - payment of any escalation under Claim No. III for napaslabs or claim No. VI for extra lead of water or Claim No. IX for flattening of canal slopes or Claim No. II for escalation in labour charges otherwise than in terms of the formula prescribed by the contract. This conclusion is reached not by construction of the contract but by merely looking at the contract. The umpire travelled totally outside the permissible territory and thus exceeded his jurisdiction in making the award under those claims. This is an error going to the root of his jurisdiction : See [PRECEDENT], . We are in complete agreement with Mr. [ENTITY]'s submissions on the point."
"26. The arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. His sole function is to arbitrate in terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled outside the bounds of the contract, he has acted without jurisdiction. But if he has remained inside the parameters of the contract and has construed the provisions of the contract, his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it." "27. An arbitrator who acts in manifest disregard of the contract acts without jurisdiction. His authority is derived from the contract and is governed by the [ACT] which embodies principles derived from a specialised branch of the law of agency (see [ENTITY] and [ENTITY]'s Commercial Arbitration; Second Edition, p.641). He commits misconduct if by his award he decides matters excluded by the agreements (see Halsbury's Laws of England, Volume II, Fourth Edition, Para 622). A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action. A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award."
"28 A dispute as to the jurisdiction of the arbitrator is not a dispute within the award, but one which has to be decided outside the award. An umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. He cannot say that he does not care what the contract says. He is bound by it. It must bear his decision. He cannot travel outside its bounds. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. As stated by Lord [ENTITY] :
" It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which on the true construction of the submission was not referred to him. An umpire cannot widen the area of his jurisdiction by holding, contrary to the fact, that the matter which he affects to decide is within the submission of the parties. . . "
Attorney-General for Manitoba v. Kelly (1922) 1 AC 268, 276. Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the Court to see what dispute was submitted to him. If that is not clear from the award, it is open to the Court to have recourse to outside sources. The Court can look at the affidavits and pleadings of parties; the Court can look at the agreement itself. Bunge and Co. v. Dewar and Webb (1921) 8 Lloyd's Rep 436 (KB)."
"29 If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Such error going to his jurisdiction can be established by looking into material outside the award. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such jurisdictional error needs to be proved by evidence extrinsic to the award, [see [PRECEDENT], ; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].]"
"30. In the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the confines of the contract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the contract to the contrary. [See the principles stated in [PRECEDENT] : [PRECEDENT]; [PRECEDENT]; [PRECEDENT], ; [PRECEDENT], ; [PRECEDENT], . See also [ENTITY] and [ENTITY]'s Commercial Arbitration. Second Edition; Halsbury's Laws of England, Fourth Edition, Vol.2]"
"31. The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the contract. In awarding claims which are totally opposed to the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which he derived his authority thereby acting ultra fines compromissi."
10. Thereafter, Mr. [ENTITY], the learned Counsel for the petitioner referred to and relied upon another Judgment of the Supreme Court in the case of [PRECEDENT]., , wherein he referred to Paragraph No. 44 of the said Judgment, which reads as under :
"44. From the resume of the aforesaid decision, it can be stated that:
(a) It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled 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 then the Court cannot interfere.
(d) If no specific question of law is referred, the decision of the Arbitrator on that question is not final, however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. In a case where specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties, then the finding of the arbitrator on the said question between the parties may be binding.
(e) In a case of non-speaking award, the jurisdiction of the Court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction.
(f) To find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. Arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award.
(g) In order to determine whether arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction.
(h) The award made by the Arbitrator disregarding the terms of the reference or the arbitration agreement or the terms of the contract would be a jurisdictional error which required ultimately to be decided by the Court. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of specific bar stipulated by the parties in the agreement, that claim could not be raised. Even if it is raised and referred to arbitration because of wider arbitration clause such claim amount cannot be awarded as agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. This aspect is absolutely made clear in [PRECEDENT] (supra) by relying upon the following passage from [PRECEDENT] which is to the following effect :
"There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered. The [ACT] does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. There is no general liberty reserved to the Courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous."
(i) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to mala fide action.
(j) The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable; the arbitrator is a tribunal selected by the parties to decide the disputes according to law."
11. Mr. [ENTITY], the learned Counsel for the petitioner also referred to and relied upon the Supreme Court Judgment, in the case of [PRECEDENT], wherein he referred to Paragraph No. 14 of the said Judgment, which reads as under :
"It is also, by now, well settled that an arbitrator is not a conciliator and his duty is to decide the disputes submitted to him according to the legal rights of the parties and not according to what he may consider it to be fair and reasonable. Arbitrator was held not entitled to ignore the law or misapply it and cannot also act arbitrarily, irrationally, capriciously or independently of the contract (See ) [PRECEDENT]). If there are two equally possible or plausible views of interpretations, it was considered to be legitimate for the arbitrator to accept one or the other of the available interpretation. It would be difficult for the Courts to either exhaustively define the word 'misconduct' or likewise enumerate the line of cases in which alone interference either could or could not be made. Courts of law have a duty and obligation in order to maintain purity of standards and preserve full faith and credit as well as to inspire confidence in alternate dispute redressal method of arbitration, when on the face of the award it is shown to be based upon a proposition of law which is unsound or findings recorded which are absurd or so unreasonable and irrational that no reasonable or right thinking person or authority could have reasonably come to such a conclusion on the basis of the materials on record or the governing position of law to interfere. So far as the case before us is concerned, the reference, to the arbitrator is found to be a general reference to adjudicate upon the disputes relating to the alleged termination of the agreement by the State and not a specific reference on any particular question and consequently, if it is shown or substantiated to be erroneous on the face of it, the award must be set aside."
12. Mr. [ENTITY], the learned Counsel for the petitioner thereafter referred to and relied upon the Judgment of this High Court in the case of [PRECEDENT] wherein the learned Single Judge of this Court has observed the scope of interference with regard to the erroneous interpretation of an agreement by the learned Arbitrator.
13. Mr. [ENTITY], the learned Counsel for the petitioner also referred to and relied upon the Judgment of the Hon'ble Supreme Court in the case of [PRECEDENT], , wherein in Paragraph No. 31 of the said Judgment, the Hon'ble Supreme Court has interpreted the scope of interference on the ground of public policy of India, under [SECTION] of the [ACT]. The said Paragraph No. 31 reads as under :
"31. Therefore, in our view, the phrase "public policy of India" used in [SECTION] in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in [PRECEDENT] it is required to, be held that the award could be set aside if it is patently illegal. The result would be award could be set aside if it is contrary to :
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality; or
(d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court. Such award is opposed to public policy and is required to be adjudged void."
14. On the other hand, Mr. [ENTITY], the learned Counsel for the respondent, strongly contended that there is no error apparent on the face of the record and there is nothing contrary to law or to public policy in the aforesaid Award necessitating this Court to interfere. Mr. [ENTITY] very fairly stated that there is no dispute that the petitioner-[ENTITY] has the authority and it is within its right to re-test the material at the destination, however, the learned Counsel has pointed out that such a re-testing can be resorted to only in case if the material were to be found sub-standard on user at the destination, as has been clearly mentioned in Clause 14.18.5 as quoted hereinabove. Mr. [ENTITY] has pointed out that it is mentioned in the aforesaid Clause 14.18.5 that the Destination sampling and testing will be resorted only on such occasions when there is a failure in performance of the supplied material as observed by the user. Therefore, it is the contention of the learned Counsel for the respondent that unless and until the petitioner-[ENTITY] uses the said material and thereupon finds a failure in performance of the supplied material, the petitioner-[ENTITY] cannot resort to retesting of the said material.
15. Mr. [ENTITY], the learned Counsel for the respondent has contended that it is rather absurd proposition to contend that the retesting can be done at the destination even at the moment the said material reaches the destination. Mr. [ENTITY] has brought to my notice that, in fact, when the material was despatched from Chennai by road transport engaged by the petitioner-[ENTITY], all the 387 drums of Linseed Oil were properly sealed and such seals were countersigned by the [ENTITY] officials. It is also material to note here that the aforesaid material was despatched by road transport engaged by the petitioner-[ENTITY]. It is the case of the learned Counsel for the respondent that when the material was received in Nhava-Sheva Port it was lying open in the said Port and none of the officials of the respondent were present when the material was received. Mr. [ENTITY], the learned Counsel for the respondent has also pointed out from the record and the evidence that the evidence of the officers of the petitioner-[ENTITY] also indicate that all the 387 drums were, lying open in the Port and seals of some of the drums were found broken when the samples were taken for re-testing at the destination. Therefore, it is the contention of the learned Counsel for the respondent that the respondent is not responsible if the seals were tampered and/or broken while in the custody of the petitioner's transporters or at the Nhava Sheva Port. Mr. [ENTITY] has strongly emphasised that the aforesaid Clause 14.18.5 makes it clear that such a sampling and re-testing can be resorted only after finding the said material supplied to be of sub-standard quality after user. Under these circumstances, the learned Counsel for the respondent has contended that there is absolutely no error apparent on the face of the record, and that the learned Arbitrator has not acted contrary to the provisions of the contract and there is nothing contrary to the public policy.
16. Mr. [ENTITY], the learned Counsel for the respondent has contended that though the petitioner-[ENTITY] is contending that the Linseed Oil was of substandard quality, in fact, till date, all the aforesaid 387 drums containing the Linseed Oil were not even returned to the respondent, and the petitioner-[ENTITY] is merely calling upon the respondent to replace the said material. Mr. [ENTITY] has submitted that till date all the aforesaid 387 drums are lying with the petitioner-[ENTITY]. Under these circumstances, the learned Counsel for the respondent submits that this Court ought not to interfere with the aforesaid Award whereby the learned Arbitrator has declined the claim of the petitioner-[ENTITY].
17. After having heard the learned Counsel for the parties in depth, and after having regard to the parameters with regard to the scope of interference in the Award under the provisions of the [ACT], in my opinion, it is very necessary for the petitioner-[ENTITY] to establish that the learned Arbitrator has travelled beyond the provisions of the Contract. If the learned Arbitrator were to be within the terms of the contract and if he had construed the provisions of the contract erroneously, still this Court cannot interfere. To put in other words, the petitioner-[ENTITY] has to show that the learned Arbitrator has travelled beyond the contract or that he has acted without jurisdiction. If the learned Arbitrator were to award certain amount or claim beyond the provisions of the contract, then it can be said that he has travelled beyond the scope of the contract. In the instance case, in fact, the aforesaid clause 14.18.5 explicitly makes it clear that such a destination sampling and testing can be done only on failure in performance of the supplied material as observed by the user. In the instance case there is no dispute that the supplied material was not put to use and therefore, it cannot be said that the said material was found to be of substandard quality. Even assuming the contention of the learned Counsel for the petitioner-[ENTITY] to be correct, the learned Arbitrator ought to have interpreted the said clause that even without user the petitioner-[ENTITY] is entitled to retest the material at the destination, the same would at the most amount to erroneous interpretation of the provisions of the contract. Mere erroneous interpretation of the contract by the learned Arbitrator, however, would not justify this Court to interfere under [SECTION] of the [ACT]. All the aforesaid judgments cited by the learned Counsel for the petitioner-[ENTITY] clearly demarcate the scope of interference by the Court. Mere erroneous decision by the learned Arbitrator cannot be interfered with unless it is pointed out that there is an error apparent on the face of the record or that the learned Arbitrator has travelled beyond the provisions of the contract or acted contrary to the public policy or there is something contrary to the law.
18. In the instant case, as has been pointed out hereinabove by the learned Counsel for the respondent, admittedly, when the material was despatched from Chennai by road transport engaged by the petitioner-[ENTITY], all the 387 drums of Linseed Oil were in a properly sealed condition and in fact were in a bonded warehouse. As pointed out by the learned Counsel for the respondent, the petitioner-[ENTITY] had not even used the said Linseed Oil and therefore, there was no question of re-testing the said material at the destination, since the aforesaid Clause 14.18.5 makes it abundantly clear that such a sampling and testing can be done at the destination only on failure in performance of the supplied material as observed by the user.
19. Under the aforesaid facts and circumstances, I do not find any ground whatsoever to interfere with the Award passed by the learned Arbitrator. There is no error apparent on the face of the record and there is nothing contrary to law or to the public policy. Petition is devoid of merits and hence stands dismissed with costs.
20. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary or the Associate.