NEELAKANTAN & BROS. CONSTRUCTIONversusSUPERINTENDING ENGINEER, NATIONAL HIGHWAYS, SALEM & ORS.

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

                               AUGUST 16, 1988
B
      [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]

          Arbitration Act, 1940: Sections 2, 20, 30 and 33-Arbitration-
    Statements of parties filed-Evidence adduced-Change of Arbitrator
    -Parties did not protest and participate in proceedings before succes-
    sor-Whether amounts to acquiescence-Appointment of successor-
    Whether can be challenged as invalidating proceedings-Award-
    Unreasoned-No legal proposition made-Whether can be interfered
    with.

          The petitioner-Construction lirm entered into agreements with
D   respondent No. 3, Superintending Engineer of a Circle for execution of
    certain civil works. Respondent No. I-Superintending Engineer of
    another Circle entered into a reference for arbitration and parties liled
    statements and adduced evidence. Before the adjudication was com-
    pleted, respondent No. 1 was transferred and his successor-in-office
    entered into the task of adjudication with the knowledge, consent and
E   active participation of the petitioner in the proceeding. Since the
    arbitrator could not complete the award within time, be sought exten·
    sion of time by a letter to the petitioner and the petitioner agreed to such
    extension by a letter. The petitioner did not ask for any further or fresh
    opportunity for adducing any evidence. Thereafter, the arbitrator
    made his award.
F
          The petitioner challenged the award under ss. 30 and 33 of the
    Arbitration Act, 1940 before the District Judge on the ground that the
    previous arbitrat11r having entered into reference, his successor-in-
    oflice had no jurisdiction to conclude it and the award was violative of
    principles of natural justice.
G
        The District Judge held that the successor-in-office to the origill1"''
  arbitrator was competent to pass the award. Upholding this, the High
  Court rejected the challenge to the award. Hence the petitioner liled the
  Special L~ave Petition in this Court contending that once an arbitrator
  bad entered into a reference, the next incumbent could not conclude the
H said arbitration proceedings without a fresh agreement, that there was
                                        462
                  NEELAKANTAN v. SUPT1JG ENGINEER                         463

violation of principles of natural justice and that the award was bad.           A

      Dismissing the Special Leave Petition,

      HELD: I. If the parties to the reference either agree before-hand
to the method of appointment, or afterwards acquiesce in the ap-
pointment ·made, with full knowledge of all the circumstances, they              B
will be precluded from objecting to such_ appointment as invalidating
subsequent proceedings. Attending and taking part in the proceedings
with full knowledge of the relevant fact will amount to such acquies-
cence. [465G]     ·

     N. Challappan v. Secretary, Kera/a State Electricity Board and              C1
another, [1975] 1 S.C.C. 289 relied on.

      Chowdhury Murtaza Hossein v. Mussumat Bibi Bechunnissa, 3
I.A. 209 and Prasun Roy v. The Calcutta Metropolitan Development
Authority and another, [1982] 2 Scale 125, referred to.
                                                                                 D
      Russell on Arbitration, 18th Edition/20th Edition, pages 105/432-
                                                                                      /
435, referred to.

      In the instant case, the petitioner had full knowledge of the change
of the iitcumbent and did not protest and- proceedings went on before
                                                                    .

the new incumbent. Thus, the petitioner had knowledge of the alleged             E
defect, and had acquiesced in the proceedings before the successor.
There was; therefore, no violation of principles of natural justice. [465C, Fl

     2. Unless there was a patent mistake of law and gross misstate-
ment of facts resulting in miscarriage of justice or of equity, the award
remalris unassaila6fo. [466C]       ·                                            F

      Champsey Bhara & Company v. Jivrai Ballo Spinning and
Weaving Company Ltd., 50 I.A. 324 and Firm Madan/al Roshanlal
Mahajan v. Hukumchand Mills Ltd., Indore, [1967] I S.C.R. 105,
referred to.
                                                                                 G
      In the instant case, the arbitrator gave no reason for tlie 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 ver-
dict of the arbitrator. The Court cannot review, in such circumstances,
the award and correct any mistake in the adjudication by the arbi-
trator. [466D]                                                                   H
    464         SUPREME COURT REPORTS               [1988] Supp. 2 S.C.R.

          3. In the facts and circumstances of the case, the award is unas-
A
    sailable. The High Court was right in upholding the District Judge's
    dismissal of the challenge to the award. [466F]

           CIVIL APPELLATE JURISDICTION: Special Leave Petition
    (Civil) Nos. 11650-58 of 1987.
B
          From the Judgment and Order dated 31.7.1987 of the Madras
    High Court in Appeal against" Order Nos. 541 to 544 and 558 to 562 of
    1981.

          A.K. Sen, V. Krishnamurthy and V. Balachandran for the
    Petitioner.
c
          A. V. Rangam for the Respondents.

          The Judgment of the Court was delivered by

D       SABYASACHI MUKHARJI, J. These are pet1t10ns under
  Article 136 of the Constitution seeking leave to appeal against the judg-
  ment and order of the High Court of Madras dated 3 lst July, 1987.
  The petitioner company undertook the work of widening and streng-
  thening pavements in National Highway No. 7, Madurai-Kanya-
  kumari Road from Reaches 37.6 k.m. to 2'13 k.m. on the Madurai-
E 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
F Mohan. He entered into reference. He took up the matter for arbitra-
  tion 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 conten-
  tion of the petitioner in this case was that he had no jurisdiction to
G 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 pre-
  viously and subsequently by Thim Cornelius, it is apparent that the
  petitioner had knowledge of the change of the incumbent of the
H Superintending· Engineer who was to arbitrate in the matter.. This is
         NEELAKANTAN v. SUPTDG ENGINEER IMUKHARJI, J.]               465

evident from the documents appearing at pages 164 and 165 of the            A
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.      B
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   c
principles of natural justice, it was submitted. But as mentioned
hereinbefore, the petitioner had knowledge of the change of the in-
cumbent.. 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         D
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.

        Shr(A:·K. Sen, _learned counsel for the petitioners, urged before us E
 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 F
 !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 invalida-
 ting subsequent proceedings. Attend1ng and taking part in the pro- G
 ceedings 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 H
    466         SUPREME COURT REPORTS              [1988] Supp. 2 S.C.R.

A 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 appel-
  lant at a latter stage. See also the observations of this Court in Prasun
  Roy v. The Calcutta Metropolitan Development Authority and another,
B [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
  before him. There was no disregard of any principle of law. There was
C nothing to indicate that the arbitrator had not considered all the evi-
  dence. 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
  award. There is no legal proposition which is the basis of the award,
D 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 observa-
  tions of Bachawat, J. in Firm Madan/al Roshanlal Mahajan v.
  Hukumchand Mills Ltd., Indore, [1967] 1 S.C.R. 105 of this Court.
E
          In the facts and circumstances of the case, in our opinion, this
    award is not assailable. The High Court was, therefore, right in up-
    holding 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.
F
    N.P.V.                                            Petitions dismissed.
                                                                              (