PETITIONER: KESHAVSINH DWARKADAS KAPADIA ETC,. Vs. RESPONDENT: M/S. INDIAN ENGINEERING COMPANY DATE OF JUDGMENT10/09/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) PALEKAR, D.G. CITATION: 1972 AIR 1538 1972 SCR (1) 695 1971 SCC (2) 706 CITATOR INFO : RF 1992 SC1932 (5) ACT: Arbitration Act (10 of 1940), Sch. 1, para. 4--Appointment of umpire by arbitrators-Whether consent of umpire necessary-Disagreement between arbitrators what is. HEADNOTE: Disputes having arisen between the appellant and the respondent, they were referred to arbitration in accordance with an arbitration agreement. The arbitrators entered upon the reference and- also appointed an umpire. After the time for making the award had expired the appellant took the stand that one of the arbitrators would be biased in favour of the respondents. The respondents therefore called upon the arbitrators to refer the matter to the umpire and also wrote to the umpire and the umpire entered upon the reference. Thereafter, the appellants filed applications under s. 33 of the Arbitration Act, 1940. The High Court held that the umpire rightly entered upon the reference, and extended the time to enable the umpire to make an award. In appeal to this Court it was contended that : (1) the appointment of the umpire was not valid because the consent of the appointee was not obtained,; and (2) under cl. 6 of the Arbitration agreement the operation of para 4 Sch. I of the Arbitration Act was excluded, and the umpire could enter upon the reference only in the event of a difference arising between the arbitrators and the arbitrators referred the matter to the umpire. Dismissing the appeal, HELD : (1) There is a distinction between appointment and acceptance of an office. The question of effectiveness or perfection is ordinarily subsequent to appointment. The scheme of arbitration proceedings indicates that the appointment of an umpire and the acceptance of office are two separate matters arising at different stages in the proceedings. [699 H; 700 A: 704 E] When the arbitrators are required to appoint an umpire it only means that the arbitrators are to concur in appointing the umpire. There is no particular method of appointment of an umpire though the usual method is by writing. Arbitrators who are required to appoint an umpire are under no obligation to obtain the approval of the choice of the person by the parties who appointed the arbitrators. If any party is dissatisfied with the choice it will not affect the validity of the appointment; nor is the appointment conditional upon the acceptance of appointment by the umpire. The necessity for communication of appointment to the parties as well as to the appointee depends on the language of the arbitration clause. The Arbitration Act does not say that the appointment of umpire by the arbitrators is to be made only after obtaining the consent of the appointee. [700 D-E; 701 D-F; 704 D-E] When the umpire assumes his office he accepts the appointment. Acceptance may be express or implied. It need not be in writing; it may be evidenced by conduct. It may also be evidenced by proceeding with 696 the arbitration. When the umpire is called upon to proceed in terms of the appointment he will either assent expressly or by conduct to act, or he will decline to act. [704 A-B, D, E-F] Mirza Sadik Husain v. Mussamat Kaniz Zohra Begam, L.R. 38 I.A. 181, applied. Ringland v. Lowndes, (1863) 15 C.B. (N.S.) 173; 143 E.R. 749 and Tradax Export S.A. v. Vokswagenwerk A.G. [1970] 1 All E.R. 420, explained and distinguished. (2) (a) Paragraph 4 of the first schedule provides that if the arbitra-delivered to any party to the arbitration agreement or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitrators. 'Mere is no intention in cl. 6 of the agreement to exclude the operation of this paragraph. On the contrary the agreement shows that the intention of the parties was that when the arbitrators allowed time to expire without making the award the umpire should enter on the reference in lieu of the arbitrators. [704 H; 705 A-C] (b) In the present case, the arbitrators, by reason of the attitude of one of the parties could not agree to proceed with the matter. Where one of the arbitrators declines to act and the other is left alone in a case of this type, it will amount to disagreement between the arbitrators. [705 F- G] (c) Failure to make an award in time where the agreement prescribed time does in. certain circumstances, amount to disagreement. [705 D-E] Iossifoglu v. Counmantaros, [1941] 1 K.B. 496 and Russel on Arbitration, 18th Ed. pp. 205, 208, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2441 and
2442 of 1968.
Appeals by special leave from the judgment and order dated
October 17, 1968 of the Bombay High Court in Arbitration
Petitions Nos. 49 and 50 of 1968.
I. N. Shroff, for the appellant (in C.A. No. 2441/1968).
V. M. Tarkunde and I. N. Shroff, for the appellant (in
C.As. Nos. 2442 of 1968).
S. V. Gupte, B. R. Agarwala for the respondent (in both
the appeals).
The Judgment of the Court was delivered to
Ray, J. These two appeals are by special leave against I the
judgment dated 17 October, 1968 of the High Court at Bombay
determining under section 33 of the Arbitration Act that the
umpire rightly entered upon the reference and further
extending the time till 31 December, 1968 for making an
award thereof by the umpire.
Two questions arise for consideration in these appeals.
First, whether there can be any valid appointment of umpire
by arbitrators without obtaining consent of the appointee to
be an um-
697
pire. Second, on the construction of the arbitration
agreement in the present case was the operation of paragraph
4 of Schedule: I of the Arbitration Act excluded with the
result that the umpire could enter upon the reference only
in the event of a difference arising between the
arbitrators.
On 26 April, 1967 there was an arbitration agreement between
the partnership firm of Indian Engineering Company and
Keshavsinh Dwarkadas Kapadia. Kapadia had appointed M/s.
Chetan Trading Company as the sole selling agent of
Kapadia’s, several products including aluminium and copper
wire by an agreement dated 16 September, 1965. Chetan
Trading Company in their turn appointed Indian Engineering
Company as their sole selling agent in respect of aluminium
and copper wires. Chetan Trading Company terminated their
agreement with Indian Engineering Company. Kapadia also
terminated the sole selling agency with Chetan Trading
Company Indian Engineering Company contended that on the
termination of the sole selling agency between themselves
and Chetan Trading Company Indian Engineering Company became
the sole selling agent of Kapadia in terms of the agreement’
dated 16 September, 1965. Indian Engineering Company
claimed damages against Kapadia for breach of the agreement.
Kapadia claimed damages and moneys from Indian Engineering
Company. ‘Disputes arose between the parties. These
disputes were referred to arbitration in accordance with the
agreement dated 26 April, 1967.
There was a similar arbitration agreement between Chetan
Trading Company and Indian Engineering Company on 5 June,
1967 in respect of their disputes and claims against each
other. The arbitration agreement and the arbitrators were
identical in both the cases.
Clauses 1, 2, 5 and 6 of the arbitration agreement which are
relevant for the purposes of the present appeals are as
follows:-
Clause (1): All the disputes and differences
arising out of
or in relation to the said Sole Selling Agency
Agreement be and they are hereby referred to
the arbitration of the said Shri H. G. Advani
and Shri J. N. Gandhi.
Clause (2) That the arbitration shall be
governed by them provisions of the Arbitration
Act, 1940.
Clause (5): The arbitrators shall make and
publish their award within four months from
the date of their entering upon the reference
and they are hereby authorised to extend the
said time from time to time as may be required
with the previous written consent of both the
parties hereto.
698
Clause (6): The said arbitrators shall before
proceeding with the arbitration appoint an
umpire and in the event of any difference
arising between them they shall refer the
‘matter to the umpire for his decision and
award.
The arbitrators Messrs. Advani and Gandhi held their first
meeting on 12 September, 1967. At the said meeting before
entering upon the reference the arbitrators appointed an
umpire in the following terms:
“Mr. Porus Mehta failing him Mr. Murzban Mistry appointed
umpire”.
On 11 January, 1968 the time laid down by clause (5) of the
agreement for making the award expired. On 14 January, 1968
the respondents wrote to the appellants to obtain the neces-
sary extension of time for making the award. The appellants
did not comply with the request and on 6 March, 1968 wrote
to the arbitrators that Mr. Advani one of the arbitrators
would be biased in favour of the respondents. Thereafter,
the respondents through their solicitors called upon the
arbitrators to refer the matter to the umpire and also by a
separate letter called upon the umpire Mr. Porus A. Mehta to
enter on the reference as umpire appointed by the
arbitrators. Mr. Mehta fixed a meeting on 27 May, 1968.
The appellants raised certain objections. The meeting was
adjourned. Another meeting was fixed on 17 June, 1968. At
the meeting held on 17th June, 1968 Mr. Mehta gave certain
directions in regard to the proceedings and instructions
thereof and fixed 12 July, 1968 for hearing. The appellants
by letter dated 12 July, 1968 addressed to Mr. Mehta
contended that the consent of the umpire was not obtained
before his appointment and therefore there was no valid
appointment of the umpire. Mr. Mehta fixed the meeting on
13 July, 1968 and decided to proceed with the arbitration
and adjourned the meeting to 20 July, 1968. The appellants
obtained an adjournment on the ground that the appellants
wanted to file a petition challenging the appointment of Mr.
Mehta as an umpire. Mr. Mehta adjourned the matter till 30
July, 1968.
In this context of events the appellants filed applications
under section 33 of the Arbitration Act which resulted in
the order appealed against.
Three contentions which had been advanced An the High Court
were repeated here. First, that the arbitrators before pro-
ceeding with the reference did not obtain consent of the
umpire to his appointment as umpire, and, therefore, there
was no appointment of umpire. Secondly, under clause (6) of
the arbitration agreement operation of paragraph 4 of
Schedule I of the
699
Arbitration Act was excluded and the umpire could enter upon
the reference only in the event of a difference arising
between the arbitrators on their disagreement. No
difference arose between the arbitrators in the present case
but only time for making the award expired. Therefore, the
umpire had no right to enter upon the reference. Thirty
under clause (6) of the arbitration agreement, the umpire
had no right to enter upon the reference unless the
arbitrators referred the matter to the umpire. The High
Court relied on the decision of the Judicial Committee in
Mirza Sadik Husain v. Mussanmat Kaniz Zohra Begam and
Anr.(1) (38 I.A. 181) and held that the umpire signified the
consent by taking up the office and the umpire rightly
entered on the reference. The High Court held that the
contingency provided for in paragraph 4 of Schedule I to the
Arbitration Act was not excluded. The High Court however
said that if the High Court was wrong in the view that
paragraph 4 of Schedule I to the Arbitration Act was not
excluded, expiry of time to make an award could not be
regarded as a disagreement between the arbitrators. The
third contention of the appellants was also rejected by the
High Court on the ground that clause (6) of the arbitration
agreement in the present case did not apply when the
arbitrators did not make an award within time.
Counsel for the appellants contended that the words ‘if any
appointed arbitrator or umpire I neglects or refuses to get’
occurring in section 8(1) of the Arbitration Act, 1940 mean
that one can refuse to act only after one has accepted the
appointment. This contention was supported by relying on
the following observation in Russell on Arbitration, 18th
Edition, at page 212:
“Acceptance of offices:-Acceptance of the
office by the arbitrator appears to be
necessary to perfect his appointment. It has
been so decided in the case of an umpire, and
it would seem to be only reasonable that an
appointment should not be considered effective
until the person appointed has agreed either
expressly or tacitly to exercise the function
of the office”.
Two decisions are cited in Russell in support of the view
expressed by the author. These decisions are: Ringland v.
Lowndes (7 ) (1863) 15 C.B.(N.S.) 173=143 E.R. 749 and
Tradax Export S. A. v. Volkawagenwerk 3 A.G.’, (1969) 2 O.B.
599. The decision in Tradax Export case (supra) has been
affirmed by the Court of Appeal as will appear in (1970) 1
A.E.R. 420.
It is important to notice the distinction between
appointment and acceptance of office. The present appeals
concern the appointment of an umpire. The questions of
effectiveness or per-
700
fection of appointment are by the nature of things
subsequent to appointment unless the agreement or the
statute provides otherwise. Arbitrators and umpire too are
often appointed by the parties. Sometimes an umpire is
appointed by arbitrator. The constitution of the arbitral
body and the manner in which the appointments are made are
primarily dealt with in the arbitration agreement or else
the Arbitration Act will apply. In some cases, the
appointment of arbitrator may require special consideration.
If, for instance, two arbitrators are required to be
appointed one by each party an appointment of arbitrator by
a party is not complete without communication thereof to the
other party. The reason in the words of Lord Denman is this
: ‘Neither party can be said to have chosen an arbitrator
until he lots the other party know the object of his choice”
(See Thomas v. Fredricks) ( 1 847) 10 Q.B. 775). Where each
party was to appoint a valuer by 31 May, 1847 and one of the
parties nominated a referee late on 31 May and sent by that
night’s post a notice thereof to the defendant who received
it on 1 June, it was held that the plaintiff had not
nominated a referee by 31 May. (See Tew v. Harris (1848) 11
Q.B. 7).
The necessity for communication of appointment of arbitrator
to the parties as also to the appointee depends often on the
languae of the arbitration clause. In the Tradax Export
case, (supra) the arbitration clause was as follows :-
“………. Any claim must be made in writing
and claimant’s arbitrator appointed within
three months’ of final discharge and where
this provision is not complied with the claim
shall be deemed to be waived and absolutely
barred”.
This is described as the usual Centrocon arbitration clause
in charterparty agreement. It is noticeable that in the
Centrocon arbitration clause the claimant is required to
appoint an arbitrator within three months of final discharge
of cargo or else the claim is barred. An effective
appointment of an arbitrator in such a clause is necessary
to constitute arbitral authority within the stipulated time
to prevent the claim from being barred. Therefore, in such
a clause not only communication to the appointee but also
the acceptance of office by the appointee is essential for
effective appointment of arbitrator within the meaning of
the clause. A mere nomination or appointment unknown to the
appointee was held not to be an appointment far less an
effective appointment of arbitrator within the meaning of
that clause. The appointment will be effective only when
the appointed arbitrator accepts office and is armed with
the duty and authority of an arbitrator. Even in such a
clause the stage of effective appointment will be when he
has indicated his willingness to act in that matter.
701
In the Tradax Export case (supra) the charterers gave notice
of appointment to the arbitrator. Three months expired The
other side contended that there was no appointment of arbit-
rator within the stipulated time. The arbitrator was not
set in motion. Neither was the arbitrator clothed with the
mandate of arbitration nor was the machinery of arbitration
invoked by the charterers. The appointment of an arbitrator
there had to be perfected and implemented by calling upon
the appointee to act. In the Tradax Export case (supra) the
Court of Appeal observed that if an application under
section 27 of the English Arbitration Act, 1950 had been
made, the court would have, granted relief as explained in
Liberian Shipping Corporation ‘Pegasus’ v. A. King & Sons
Ltd. (1967) 2 Q.B. 86. Section 27 of the English Arbit-
ration Act is a special provision conferring power upon the
court to extend the time for commencement of arbitration
proceedings where in the circumstances of the case undue
hardship would otherwise be, caused. This aspect indicates
that in the Centrocon clause commencement of proceedings by
effective- appointment is vital and that is why relief
against rigour of time clauses is granted under section 27
of the English Arbitration Act, 1950.
In the present appeals, the reference was to arbitrators and
they were required to appoint an umpire. The appointment of
an umpire by two arbitrators means that the arbitrators are
to coneur in appointing an umpire. There is no particular
method of appointment of an umpire prescribed by the Act.
The usual method of appointment of an umpire by the
arbitrators is in writing. Arbitrators who are required to
appoint an umpire are under no obligation to obtain the
approval of the choice of the personnel by the parties who
appointed the arbitrators. If any party is dissatisfied
with the choice that will not affect the validity of the
appointment (See Oliver v. Collings (1809) 11 East 367-103
E.R. (1045).
The appointment by arbitrators of an umpire should be the
act of the will and judgment the two. Such an appointment
is to be one of the choice and not of chance. [See Re.
Cassell (1829) 9 B & C 624==109 E.R. 232]. If an umpire
declines the office the appointment is ineffectual. Ile
arbitrators in such a case can make another appointment of
an umpire if the arbitration agreement empowers them to do
SO Or the court can appoint an umpire in lieu of an
appointed umpire who refuses to act. Declining the office
will be refusal to act.
It is, therefore, apparent that appointment of umpire is
something different from the acceptance of office by the
umpire. The arbitrator Or umpire assumes his office when he
accepts the appointment. There is no NO authority for the
proposition that consent of the appointee is required before
an umpire is appointed by the arbitrators. The observations
in Russll on arbitration. 18 th Ed.
702
at page, 212 do not support that submission. The decision
in Ringland v. Lowndes supra) which is referred to in
Russell had very special features. Under the Public Health
Act, 1848 a disputed claim to compensation was to be settled
by arbitration. Arbitrators were required to make an award
within 21 days after the appointment or within extended
time, if any. If arbitrators neglected or refused to
appoint an umpire for seven days after being requested so to
do by any party the court of quarter sessions would on the
application of such party appoint an umpire. In that case
arbitrators were appointed in January, 1861. The
arbitrators refused to appoint an umpire. The plaintiff
applied at the Easter sessions to appoint an umpire but
failed in consequence of want of a notice of his intention
to make such application. The plaintiff thereafter gave the
required notice and the second application was made at the
Midsummer sessions. One Johnson was named as umpire. But
as his consent had not been obtained no formal appointment
was made. A third application was made at the Michaelms
sessions and Johnson was on 14 October appointed umpire and
accepted the appointment. The question for consideration
was whether the appointment of the umpire was at the
Midsummer sessions or at the Michaelmas sessions. Under the
statute the award was, to be made within three months from
the umpire,s appointment. The umpire made- an award on 30
December, 1861. If the appointment was in the Midsummer
sessions the Award would be bad.
It will appear from the report (15 C.B ‘ (N.S.) 173 at pp.
178, 179 and 196-143 E.R. 4 749 at pp. 752 and 759) that it
was the duty. and practice of the clerk of the peace to make
an, entry of the acts and proceedings of the court from
Which the orders of the court were subsequently formally
drawn up and no order would in the course of practice be
formally drawn up unless the assent of the umpire to act had
been previously obtained. Counsel for the board in
Ringland’s case did not strongly press the objections that’
an order ‘was made at the Midsummer sessions because there
was no formal order of the Court in Midsummer ‘sessions.
The decision in Ringland v. Lowndes (supra) went up on
appeal as will, appear from, 17 C.B. (N.S.) 514.=144, E.R.
207, The appeal, however was on actual decision in
Tringland,s case (supra) ;is ‘to whether a party who
attended before, an, arbitrator under protest, cross-
examined adversary’s witnesses and called witnesses did not
preclude himself from afterwards objecting that the
arbitrator was proceeding without authority it will appear
at conceded that the, appointment of Johnson as an umpire
took Place the October sessions. the special provisions of
the statute, the mode. of making an application to the court
of quarter Sessions, me practice of the court in regard to
drawing up of
703
orders for appointment of umpire and the specific
requirement of consent of the appointee to an order for
appointment of umpire are all special and peculiar features
in Ringland v. Lowndes (supra) to support the view that
acceptance of umpirage is necessary for the appointment of
the umpire.
The decision of the Judicial Committee in Mirza Sadiq Husain
v. Musammat Kaniz Zohra Begam (supra) was on the meaning of
the words ‘refuses to act’ occurring in section 510 of the
Code of Civil Procedure, 1882. That section conferred power
on the court to appoint a new arbitrator or umpire “if the
arbitrator or the umpire refuses to act”. The, Judicial
Committee did not accept the construction put upon the words
‘refuses to act’ by the High Courts in India that the power
of the court under section 5 10 to appoint a new arbitrator
in place of another arises only when that other had first
consented to act and thereafter refused or became incapable.
The Judicial Committee said “it appears to their Lordships
that when an. arbitrator is nominated by parties, his
refusal to act is signified as clearly by his refusal to
accept nomination as by any other course he could pursue.
His refusal to act necessarily follows, for he has not
performed the first action of all, namely, to take up the
office by signifying his assent to his appointment Their
Lordships do not enter at length,into the matter as it
appears that any other construction would open the way to an
easy defeat of the provisions of the statute”.
Under section 8 of the Arbitration Act ,1940 if any umpire
refuses to act and the arbitration agreement does not show
that it was intended that the vacancy should not be
supplied, and the parties or the arbitrators as the case may
be, do not supply the vacancy any party may take recourse’
to the provisions of the statute for appointment of umpire.
The construction which the Judicial Committee put upon the
words ‘refuses to act’ in Mirza Sadik Husain’s case (supra)
applies to the provisions contained in the Arbitration Act,
1940. Where the arbitrators appoint an umpire upon the
condition of the umpire’s acceptance of office, the
arbitrators wilt have power to reappoint an umpire if the
post is refused. ‘Where, again, the arbitrators appoint an
umpire, without any such condition of acceptance of office,
and the appointee declines the office, the, arbitrators in
accordance with their powers under the arbitration agreement
ea appoint an umpire again. The court has also power to
appoint in lieu of an appointed umpire who refuges to act,
as stated in section 8 of the Arbitration Act, 1940. In all
these cases the appointment of an. umpire becomes effective
by acceptance of the office. Thereupon the power of
appointment is exhausted. If the appointed person
704
after acceptance of office refuses to act or will not act
the parties have to take recourse to the court.
When the umpire assumes his office he accepts the
appointment. The acceptance may be express or implied. Ile
acceptance need not be in writing. It may be evidenced by
conduct. It may be also by proceeding with the arbitration.
In Mirza Sadik Husain’s case (supra) both the parties by
agreement appointed arbitrators to settle their respective
rights. One of the arbitrators refused to act. The
respondents in that case declined to nominate another
arbitrator in their behalf-. The Judicial Committee said
that this declinature was within their rights, the reason
being that the arbitrator refused to accept office or to act
after he had been appointed. The arbitrators in the present
case completed their appointment of umpire before entering
on the reference. Thereafter, it remained for the umpire to
act or to refuse to act.
The question of acceptance of appointment of umpire arises
with reference to the stage when he is called upon to act.
The Arbitration Act, 1940 does not say that appointment of
umpire by arbitrators is to be made only after obtaining
consent of the appointee. The arbitrators here appointed an
umpire before entering on the reference: The appointment was
not conditional upon the acceptance of appointment by the
umpire. The scheme of arbitration proceedings indicates
that the appointment of umpire and the acceptance of office
are two separate matters arising at different stages in the
proceedings. When the umpire is called upon to proceed in
terms of the, appointment he will either assent expressly or
by conduct to act or he will decline to act.
The High Court was correct in holding that there was a valid
appointment of the umpire and the umpire rightly entered
upon the reference. Ile umpire’s authority commenced when
he entered upon the reference on being asked to proceed with
the reference.
The other contention on behalf of the, appellants that para-
graph 4 of the First Schedule to the Arbitration Act, 1940
was excluded by clause (6) of the arbitration agreement in
the: present case is unsound. Section 3 of the Arbitration
Act provides that an arbitration agreement, unless a
different intention is expressed therein, shall be deemed to
include the provisions set out in the First Schedule in so
far as they are applicable to the reference. Paragraph 4 of
the First Schedule provides that if the arbitrators have
allowed their time to expire without making an award or have
delivered to any party to the arbitration
705
agreement or to the umpire a notice in writing stating that
they cannot agree, the umpire shall forthwith enter on the
reference in lieu of the arbitrators. Clause (6) of the
arbitration agreement does not state that only in the event
of a difference arising between the arbitrators there shall
be a reference to the umpire. There is no intention in the
agreement to exclude the operation of paragraph 4 of the
First Schedule to the Arbitration Act. In the present case
the agreement provided for appointment of umpire. The
agreement also provided for making of the award by the
arbitrators. It is, therefore, apparent that the intention
of the parties was that when arbitrators would allow their
time to expire without making the award the umpire would
enter on the reference in lieu of the arbitrators.
The High Court expressed the view that if the arbitrators
allowed the time to expire that by itself would not amount
to disagreement between the arbitrators. As to what
constitutes disagreement cannot be laid down in abstract or
inflexible propositions. It will depend upon the facts of
the case as to whether there was a disagreement. The High
Court did not agree with the view expressed in Russel on
Arbitration, 18th Ed. at pages 205 and 208, that failure to
make an award in time where the agreement prescribed time in
which the arbitrators award is to be made would amount to
disagreement. In Lossifoglu v. Counmantaro [1941] 1 K.B.
396 the arbitration clause provided “in case the arbitrators
so appointed disagree they shall appoints an umpire”. One
of the arbitrators repeatedly endeavoured to arrange a
meeting with the other, but failed to arrange such a
meeting. The arbitrator then unsuccessfully attempted to
obtain consent of the latter to the appointment of umpire.
Thereafter, application was made to the court for the
appointment of umpire. Disagreement between the arbitrators
may take various shapes and forms. In the present case the
arbitrators by reason of attitude of a party in
correspondence addressed to the arbitrators could not agree
to proceed with the matter. Where one of the arbitrators
decline to act and the other is left alone it will in a case
of this type amount to disagreement between the two
arbitrators. In the Present case, there was disagreement
between the arbitrators. Time to make the award also
expired. Therefore, from both points of view the umpire had
authority to inter upon the reference.
For these reasons, we are of opinion that the High Court was
correct in making the order. The appeals are dismissed.
The order of the, High Court is upheld, In view of the fact
that the time granted by the High Court till 31 December,
1968 for making the award cannot apply, the umpire Porus A..
Mehta is I-L3Sup.Cl/72
706
granted time for three months to make the award. Three
months will run from the date of service of this order by
any party to these appeals. The appellants will pay one set
of hearing fee to the respondents.
V.P.S Appeals dismissed.
707