1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.42 of 2008 Prasar Bharti Through Executive Engineer .. Petitioner versus M/s.Choudhury & Choudhury(India)Ltd .. Respondent ... Ms.S.I. Shah i/b M/s.S.I.Shah & Co. for the petitioner. CORAM : D.G.KARNIK, J DATED : 19th June 2008 P.C.: 1. Heard learned counsel for the petitioner. 2. By this petition under section 34 of the Arbitration and Conciliation Act 1996 (for short "Arbitration Act" the petitioner challenges the award dated 3rd July 2007 passed by the learned sole arbitrator. 3. The dispute between the petitioner and respondent were referred to arbitration in the year 2 2004 or earlier. The learned arbitrator declared his award on 15th October 2004 (hereinafter referred to as "1st award"). That the first award was challenged by the petitioner in this court by filing Arbitration Petition no.478 of 2002 interalia on the ground that the learned arbitrator erred in passing an award in respect of item nos.10, 11, 12, 13, 15A, 15B and 15C which according to the petitioner were not arbitrable. The objection of the arbitrability of the said claims, though specifically raised, was not decided by the learned arbitrator. By an order dated 1st March 2006, this court held that arbitrator ought to have decided on the arbitrability of the claims regarding item nos.1, 11, 12, 13, 15A, 15B and 15C. This court however instead of setting aside the first award though it fit to give the arbitral tribunal an opportunity to correct the error committed by him in not deciding the objection as to the arbitrability of the claims and remanded the matter back to the arbitrator under section 34(4) of the Arbitration Act for deciding the issue of arbitrability of those claims. 4. Upon remand, the arbitrator reconsidered the position and passed a fresh award on 25th April 2006(hereinafter referred to as "the second award). The second award was challenged by the respondent 3 herein, before this court by filing Arbitration Petition no.328 of 2006. This court accepted the case of the respondent herein that the second award was passed by the learned arbitrator in violation of the principles of natural justice and without giving the respondent an opportunity of hearing in the matter. Accordingly this court by an order dated 29th August 2006 set aside the second award dated 25th April 2006 and directed the learned arbitrator to pass a fresh award after hearing the respondent. 5. Learned arbitrator thereafter issued notices to both the parties and re-heard the matter and passed the award dated 3rd July 2007 (hereinafter referred as "the third award"). That award is impugned in this petition. Before the learned arbitrator, the petitioner reiterated that claims regarding item nos.10, 11, 12, 13, 15A, 15B and 15C came under the purview of excepted matters under the original agreement and therefore were not arbitrable. After considering the material on record, the learned arbitrator held that item nos.10, 11, 12, 13, 15B and 15C came under the purview of excepted matters and consequently were not arbitrable. He however held that the claim in respect of item no.15A was not covered by the excepted matters and was consequently arbitrable. 4 6. After having come to the conclusion that the claim nos.10,11, 12, 13, 15B and 15C were not arbitrable, the learned arbitrator held that decision of an Engineer-in-charge on those items was final and binding and therefore no award can be made thereon. He however further held that in respect of those items only set off was claimed by the petitioner and therefore that would not alter the final amount of the award. Learned counsel for the petitioner submitted that if those claims were held to be not arbitrable, amount awarded by the learned arbitral tribunal would be reduced. Learned counsel for the petitioner however was unable to point out how the amount would be reduced. The finding of the arbitral tribunal that even after deleting item nos.10, 11, 12, 13, 15B and 15C the amount as awarded would not be altered in a finding of fact based on calculations. It is not shown how the said calculations are erroneous. In the circumstances, no ground for setting aside the third award u/s.34 of the Arbitration Act is made out. There is not merit in the petition which is accordingly rejected. 7. It is clarified that no opinion is expressed regarding the other challenges to the first award in respect of which arbitration petition is still 5 pending. (D.G.KARNIK, J)