{"id":263665,"date":"1966-09-27T00:00:00","date_gmt":"1966-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/modern-builders-vs-hukmatrai-n-vadirani-on-27-september-1966-2"},"modified":"2018-05-09T15:17:23","modified_gmt":"2018-05-09T09:47:23","slug":"modern-builders-vs-hukmatrai-n-vadirani-on-27-september-1966-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/modern-builders-vs-hukmatrai-n-vadirani-on-27-september-1966-2","title":{"rendered":"Modern Builders vs Hukmatrai N. Vadirani on 27 September, 1966"},"content":{"rendered":"
Bombay High Court<\/div>\n
Modern Builders vs Hukmatrai N. Vadirani on 27 September, 1966<\/div>\n
Equivalent citations: AIR 1967 Bom 373, (1967) 69 BOMLR 237<\/div>\n
Author: Tarkunde<\/div>\n
Bench: Tarkunde, Chitale<\/div>\n

JUDGMENT<\/p>\n

Tarkunde, J.\n<\/p>\n

(1) This appeal arises from an order of the Bombay City Civil Court refusing to set aside an award made on a Court reference.\n<\/p>\n

(2) The appellants before us were the original plaintiffs. They had filled a suit in the Bombay City Civil Court for the recovery of Rs. 14, 900 and odd from the defendant. When the suit reached hearing on 6th April, 1963, the matter in dispute was by consent of the parties referred to the arbitration of two arbitrators, who were the two Advocates of the parties. One of the terms in the order of reference provided that the two arbitrators “shall nominate an umpire”. The arbitrators did not appoint an umpire but heard the parties and received their evidence in three meetings held on the 13th the 16th and the 17th of May,. 1963. The time for making the award was enlarged by the Court by consent of parties. The arbitrators made an award on 28th November, 1964. by which they directed that the defendant shall pay to the plaintiffs Rs. 8,500 with interest and costs. being dissatisfied with the award the plaintiffs applied to the City Civil Court for setting it aside. The main ground advanced on their behalf was that the provision contained in Clause 2 of the First Schedule of the Arbitration Act, 1940, which required the arbitrators to appoint an umpire was a mandatory provision and that the breach of that provision by the arbitrators rendered the award invalid. The learned trial Judge held that the award was not invalid, that the provision in clause 2 of the First Schedule was not mandatory and that in any case the plaintiffs had by their conduct waived the non-compliance with that provision. This decision has been challenged by the plaintiffs in this appeal.\n<\/p>\n

  (3)  Although   the order  of reference  made by  the  trial  Court   by  consent  of  parties  contained  a  clause  that    the two  arbitrators  \"shall   nominate  an   umpire\"  the clause  did not  provide    the time  within   which the nomination  was to  be   made.  Section 3<\/a> of  the Arbitration  Act,  1940, which relates  to  an  arbitration  without  the  intervention of    a Court  lays    down   that- \n\n   \"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.\" \n\n \n\n By  Section  25<\/a>   the  provision  of Section 3<\/a> has   been  made  applicable  to arbitration  in suits.  Clause   2  of  the  First  Schedule   on which   the plaintiffs   rely  is in  the following   terms: \n\n   \"If  the reference  is  to   an even   number  of  arbitrators, the arbitrators  shall   appoint  an  umpire   not  later  than   one   month  from  the latest  date of  their  respective   appointments.\" \n\n \n\n Since    a  different  intention   has not  been  expressed  in the  decretal   order of reference  this   clause  must  be deemed   to  have been  included  in  that  order  by  virtue  of  Section 3<\/a>  read  with  Section  25<\/a> of  the Act. \n \n\n  (4)  On  behalf  of  the plaintiffs Mr.  Dhanuka   urged  before   us  that  Clause   2 of   the  First Schedule   is  mandatory  and  that the   failure  of  the arbitrators    to  appoint  an Umpire   as  required  by  that  clause   must  render  their  award  invalid.  Judicial  opinion   does   not   appear  to  be  uniform  on  whether  that  clause  is  mandatory.  It  will   be convenient  if    we  first  deal  with   that   question  on  principle   before   referring   to authorities. \n\n \n\n  (5)  In  considering    whether  Clause    2  of   the First  Schedule   is  mandatory   or  directory,  it  is   material  to  notice  what  function   an  Umpire   is expected  to perform.  An  Umpire  is not  an   arbitrator  ab  initio.  He  does  not  act as  a third  arbitrator.  He  has  no  function   to  perform  if  the  two  arbitrators    do not  disagree with each   other  and  proceed  to  make    an award within  the  agreed  time or  within  such   extended   time. as  the  Court   may  allow.  The  functions   of    an   Umpire   have   been  specified   in Clauses  4  and   5  of  the First Schedule.  clause   4  provides  that  if  the arbitrators   have  allowed   their   time   to  expire  without  making   an award  or  if  they  have  delivered    to  any   party  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  5   says  that   the Umpire   shall make  his  award   within  two  months  of entering  on the reference  or  within   such  extended   time  as  the   Court  may  allow. It   is  clear  from  these provisions that   an  Umpire   replaces  the arbitrators   if   the latter  fail  to  make  an award  within  the   time  allowed   to  them  of   fail  to agree   with   each  other  and  that  the   umpire   has no   function    is  such   a  contingency   does  not  arise. \n\n \n\n  (6)  Although    an  Umpire  has no   function  to  perform  in  the absence  of a  disagreement  between  the  arbitrators   or  their  failure  to  make  an award  in  the  time allowed,  the  terms  of  Clause   2 clearly    show  that  the Legislature  intended    that  the  arbitrators   shall appoint  an  umpire  as  a matter of   course   irrespective  of  whether   they  do  or  do not  agree with  each  other.  Mr.  Dhanuka  pointed  out  in  this  connection that  prior   to  the Arbitration Act<\/a>  of  1940   it  was  not  obligatory  on  the arbitrators  when they  were even  in  number  to  appoint  an  Umpire.  The  corresponding   clause in the  First  Schedule   to the Indian  Arbitration  Act<\/a>  of  1899  provided   that  the   arbitrators    \"may  appoint   an  Umpire   at  any  time  within the  period  during  which  they   have   power  to   make    an award\"  In  Clause  2  of  the First Schedule   of  the Arbitration  Act  of  1940  the language  was changed  and  it  was  provided  that  the  arbitrators  \"shall  appoint    an  Umpire   not  later  than   one  month  from  the latest  date  of  their   respective    appointments.\"  The  change  was  undoubtedly    deliberate,  and  it  appears  to  have  been  made   because  the Legislature  felt    that  the  arbitrators,  if  they  fail   to  agree  on  the  matters   referred to  them  may  also   disagree   on  the   nomination of   an  Umpire   and  that  it  was  desirable  that  they   should  nominate   an  Umpire   soon after  they  are  appointed   arbitrators.  Relying  on this  legislative  history. Mr.   Dhanuke   argued  that  the use  of  the word  \"shall\"  in Clause  2 of  the First  Schedule   instead  of  the word \"may\"   which  appeared.  in  the corresponding   clause   of the earlier   Act,  showed  that  the Legislature  intended that  the  provision  of clause  2   should   be  mandatory   and  not  directory.  We do not  agree  that  the use  of  the word \"shall\"  is decisive  of  the  question   When   the Legislature  had  used  the  word \"may\"  in the former  clause, the  appointment   of  an   Umpire   by  the arbitrators   was discretionary.  With  the  use  of  the word \"shall\"  in the present  clause  the appointment   has been  made obligatory.  It  is,  however,   obvious  that  an   obligatory  rule    may  be  either mandatory  or   directory,  depending   upon whether  the Legislature  intended   that  non-compliance  with  the  rule  should   or  should  not  result  in  the  nullification of  subsequent   proceedings.  The   real  question,  therefore,  is  whether  the Legislature  intended    that  the  failure of  the  arbitrators  to   appoint   an  Umpire   should result  in depriving    them   of  the power  to  proceed  with  the  arbitration  and  in   rendering  invalid   any  award  made  by them. \n\n \n\n  (7)  As observed  in Maxwell on  Interpretation of  Statutes,  the  question  must  be decided  on  the   scope   and object  of  the  provision  in question and  on  consideration  of convenience  and justice.  The  learned   author  says  (11th  edition   page  364):- \n\n   \"It   has  been  said  that  no  rule  can  be  laid   down  for  determining  whether  the  command  is  to   be  considered   as  a  mere   direction  or  instruction   involving  no    invalidating   consequence  in  its   disregard,  or  as  imperative,  with    an  implied  nullification  for  disobedience,  beyond    the  fundamental    one  that  it  depends  on the scope  and object  of   the enactment.  It  may,  perhaps,  be  found    generally   correct  to  say  that  nullification  is  the   natural  and  usual  consequence   of  disobedience,  but  the  question  is in  the  main  governed  by  considerations  of  convenience  and justice,  and,  when  that   result  would   involve   general   inconvenience or  injustice   to  innocent  persons,  or  advantage  to  those    guilty   of  the   neglect, without  promoting   the   real  aim and  object  of  the  enactment, such  an  intention  is  not   to   be attributed  to  the   legislature.......\" \n\n \n\n<\/pre>\n
  (8)  We have seen above that a  umpire has no function to perform if the arbitrators do not disagree and proceed to make an award within the agreed time or such extended time as may be allowed by the Court when an award made by an even number of arbitratirs is challanged on the ground that theu had failed to appoint an Umpire the challenge is necessarily made in circumstances in which anumpire, if appointed, had no function to perform.  The arbitrators make an award when they agree with each other, and the fact that they make an award itself shows that an Umpire, if he had been appointed, would not have been required to enter on the reference as contemplated by Rule 4 of the First Schedule.  No considerations of convenience or justice require that an award made in such a case should be invalid.\n<\/p>\n
  (9)  On the other hand, even in cases where the arbitrators do  ot agree with each other, a failure on their part to appoint an umpire would not necessarily render the arbitration  proceedings infructuous.  In such a case any party to the reference can approach the Court under Section 8<\/a> for the appointment of an Umpire Section 8(1)(e)<\/a> provides interalia that where the arbitrators are required to appoint an umpire and do not appoint him, any party may serve the arbitratirs with a written notice to concur in the appointment of an Umpire.  Sub-section  (2) of Section 8<\/a> provides that if the appointment is not  made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and of being heard, appoint an umpire.\n<\/p>\n
   (10)  Thus, if the provision contained in Clause 2 of the First Sshedule is considered in the context of Clause 4 and 5, which define the functions of an Umpire and Section 8<\/a> which provides for the appointment of an Umpire by the Court, it would appear that non-complaince with Clause 2 was not intended by the Legislature to have the consequence of nullifying the proceedings before the arbitrators,  The arbitrators may either agree or fail to agree.  In the first eventually the appointment of an umpire is redundant and is the second the failure of the arbitrators to appoint an Umpire can be made good by the Court appointing an Umpire.  That being so, compliance with Clause 2 cannot be regarded as a condition for the validity of an award in the absence of an express legislative provision to that effect.\n<\/p>\n
  (11)  There is another reason why Clause 2 must be held to be directory and not mandatory.  Under that clause the arbitrators are to appoint an umpire within one month of their appointment.  Nothing, however prevents the arbitrators from hearing the parties and giving an award within a month of their appointment. Clause 2 dies not provide that the arbitrators shall appoint an Umpire before they enter on the reference.  If the arbitrators give an award within one month of their appointment it is not comtemplated that they should subsequently appoint an Umpire.  That  shows that Clause 2 could not have been intended by the Legislature to be mandatory.\n<\/p>\n
  (12)   It also appears that the time limit of one month for the appointment of an Umpire specified in clause 2 was not intended by the Legislature to be mandatory.  If the arbitrators were to appoint an Umpire after the period of one month the appointment would not be invalid.  This is clear from the terms of Section 8<\/a>.  As observed earlier, Clause (1)(c)  of the arbitrators with a written notice to concur in the appointment of an Umpire “Where the arbitrators are required to appoint an Umpire and do not appoint him.”  The arbitrators cannot be said to have failed to appoint an Umpire till the expiry of the period of one month specified in Clause 2 of the First Schedule.  It follows that the written notice to be served on arbitrators which is contemplated by Clause (1)(c)  of Section 8<\/a> can only be given after the expiry of the said period of one month.  The Sub-section (2) of Section 8<\/a> says that “if the appointment is made within fifteen clear days after the service of the said notice”, the Court may itself appoint an Umpire.  This provision clearly contemplates that the arbitrators may appoint an Umpire after theyreceive a notice from a party under Sub-section (1)(c) of Section 8<\/a>, which notice itself would be given to them after expiry of the period of one month specified in Clause 2.  Thus terms of Sub-section (2) of Section 8<\/a> shows that the Legislature itself caontemplated a valid appointment af an Umpire being made by the arbitrators after the expiry of the period specified in Clause 2.\n<\/p>\n
  (13)  Turning to the authorities, the only decision of this Court which was cited before us was that of a Single Judge in Vinayak Vishnu Sahasrabudhe v. B.G. Gadre<\/a>.  .  In that case an award made by two arbitrators without appointing an Umpire was set aside.  A  reference to the judgment shows that the decision turned on the wording og the arbitration agreement which required the arbitrators to nominate an Umpire before they proceed “to start an inquiry”. The learned Judge held that in view of the express term of the agreement mentioned above, Clause 2 of the First Schedule was not attracted and that the matter was governed only by the said term of the arbitration agreement.  In the course if his judgment, however, the learned Judge made some observations, which are clearly obiter, to the effect that Clause 2 of the First Schedule in the mandatory and not merely directory.  No reasons are given by the learned Judge in support of this view.  The learned Judge referred to two decisions of the Nagpur High Court and expressed his agreement with one of them.  He also referred with approval to a decision of the Allahabad High Court.\n<\/p>\n
  (14)  The decision of the Nagpur High Court with which the learned Judge expressed agreement was in Firm Shriram Haracharandas v. President<\/a>.  The Cotton Seed Forward Delivery Managing Association Ltd..  AIR 1955 Nag 236  There are some casual observations in that case on Clause 2 of the First Schedule, but those observations do not show that, according to the learned Judges who decided that case, the provision of Clause 2 of the First Schedule was mandatory.  On the other hand the Nagpur decision with which a disagreement was expressed in the aforesaid Bombay case in Tikaram Khupchand v.  Hansraj Hazariaml.  AIR 1954 Nag 241.  Detailed reasons are given in that judgment in support of the view that Clause 2 of the First Schedule is directory and not mandatory.  With respect we are in agreement with the view expressed in that judgment.\n<\/p>\n
  (15)  The decision of the Allahabad High Court on which reliance was placed in the Bombay case was in Jawala Prasad v. Amar Nath<\/a>, .  In that case an award which was made by two arbitrators in a Court reference was held to be invalid on the ground that the aarbitrators had not appointed an Umpire.  It was held that the provision of Clause 2 of the First Schedule is of a mandatory character, but no reasons were given in support of that view.  The authority of this case has be considerably shaken as a result of the subsequent decision of the same Court in Shambhu Nath v. Hari Shankar Lal<\/a>.  .  One of the Judges who was member of the Bench which decided this later case.  Here also two arbitrators had made an award without nominating  an Umpire.  The learned Judge referred to the provision contained in Section 8(1)(c)<\/a> of the Act and observed that the failure to appoint an Umpire is not a breach of Clause 2 of the First Schedule as to vitiate the award and that the breach may amount merely to an irrerularity which it is possible to Waive.  Referreing to the earlier case in . it was observed that the learned Judges in that case had taken care “to confine their decision to the fact of that particular case.”\n<\/p>\n
  (16)  Mr. Dhanuka, however, relied upon a sebsequent decision of a Single Judge of the Allahabad High Court in Ram Kishore v. Raj Narain Dubey<\/a>  .  In this case the learned Judge confirmed the order of the lowe Court setting aside an award made by two arbitrators within a month of their appointment without nominating an Umpire.  The learned Judge relied on the decision in . and distinguished the subsequent case of .  on the ground that the awars in that case was made more than one month after the appointment   of  arbitrators,  so  that   the  parties  ahd  an  opportunity  to  approach  the Court  for  the   appointment of   an Umpire   under Section  8(1)(c)<\/a> of   Act.  The  learned  Judge   held  that   where  the  arbitrators  failed  to    appoint  an  Umprie  as  required  by  the mandatory   provision of  Section  2  of  theFisrt  Schedule   and  gave  an  award  within  one  month  of  their   own  appointment  so   as  to  deprive   the parties  of  any   opportunity  to  take  recourse  of Section  8(1)(c)<\/a>  of  the Act,   the  award   made is invalid.   With  respect  we  are quire   unable  to  agree  with  this   view.  There   is nothing  in Clause  2 of  the First  Schedule   or  any  other provision  of  the   Act  which   prevents   the  arbitrators   from  giving   an  award  within  one  month  of  their  appointment  or  which  requires   the arbitrators   to  appoint   an  Umpire   prior  to  the end  of  the  said   period  of one  month.\n<\/p>\n
  (17)  Mr.  Dhanuka  relied   on a  decision  of  a  single   Judge  of  the Calcutta  High  Court  in  Harak   Chand  Damini  v.  Ramsarup   Lakkar.  85 Cal  LJ  232.  In   that  case  it  was held  inter alia  that  the appointment   of  an  Umpire   by  two arbitrators   after  the expiry  of  the period  of  one month   specified  in  Clause  2 of  the  First  Schedule  was  invalid.  With   rspect   we  do  not  agree  with  this  view.  We have  pointed  out  above  that  the  proviion  of   sub-section (2)  of    Section 8<\/a>  indicates  that  the  Legislature  contemplated  a  valid  appointment   of  an  Umpire  being  made  by  the   arbitrators   after  the  lapse of   the period   of  one  month   mentioned in Clause  2 of  the First  Schedule.\n<\/p>\n
  (18)  There is  another   decision  of  the      Calcutta  High  Court,  United  Printing and  Building   Works  v.  Kishori  Lal<\/a>,  ,  which is in  conformity  with   our  view   that Clause   2 of  the First  Schedule  is  not  a mandatory  provision.  IN  that  case  a  single  Judge  overruled  an  objection   which  had   been  taken  to  the  validity  of  an  award  made by  two  arbitrators   without  appointing   an  Umpire.  The  learned   Judge  held  that   non-compliance  with  Clause  2  of  the First  Schedule  did not  vitiate  the award.\n<\/p>\n
  (19)  Decisions  in   conformity  with  the  view   which  we  are inclined   to   take  are also  found  in Louis  Dreyfus   and Co.  v  Hemandas  Hatchand.  AIR  1940  Sind  37;  Sheoramprasad  Ram Narayanlal  Bania   v. Gopalprasad  Parmeshwardayal  Shukla<\/a>.  ;  Chacko  v. Chacko<\/a>  ;  and   Ratnawa v.  Furushiddappa  Gurushantappa  Magavi  &  Co<\/a>.  AIR  1962 Mys   135.  Thus  the  bulk  of   judicial  opinion   favours  the  conclusion   that  the  provision   contained  in   Clause  2  of  the First  Schedule   is   directory  and not   mandatory.\n<\/p>\n
  (20)  Supposing  however   that Clause   2 of  the First  Schedule  is  mandatory,  we  are  of  the  view  that  its  breach  does not  invalidate  the award   in  the present  case because  where  the   plaintiffs  have  by  thir  conduct   waived  the non-compliance   with  that  provision.  After  the expiry  of  the time   specified  in Clause  2 of  the   First  Schedule  for  the  appointment   of  an  umpire,  three  meetings   were  held  by  the  arbitrators   and  the  plaintiffs  appeared  at   those  meetings  and  produced  their   evidence.  They  also  agreed  to  the  extension  by  the Court  of  the time   for  making   the award .  Having  thus  waived  the  non-compliance  with  Clause  2  of  the First Schedule,  the  plaintiffs   cannot  object  to  the  award  on  that   ground.\n<\/p>\n
  (21)  In  some  of  the cases  cited  above  it was  assumed  that  a  directory   provision  is   capable  of  being   waived but not    a  mandatory  provision.  With  respect   it  does not   appear  to  us  that  the  principle  of  waiver  is  applicable  to   directory  provisions  only   and   that  it  cannot  extend  to  mandatory  provisions.  There are two  well  recognised  limitations  to  the  application  of  the principle  of  waiver.  In  the  first  place,   a party  cannot   waive  a  statutory  requirement  which   has  been  inserted  by  the  Legislature   in  the public  interest   as   distinguished   from  the   interest   of  the parties  to  an  action.  Secondly,   the  parties  cannot  by  waiver  invest   a tribunal  with  a  jurisdiction  which  it   does not   have.  In  “Craise  on  Statute Law”  the  learned  author   has  obseerved   (6th  edition,  page   269):-\n<\/p>\n
   “If   the  object   of  a  statute  is not  one  of  general  policy  or  if  the  thing  which is being  done  with  benefit  only  a particular   person   or  class of persons.  then  the  conditions   prescribed  by the statute  are not  considered  as being  indispensable.  As  a  general  rule,  the  conditions  imposed   by  statutes  which  authorise  legal  proceedings   are treated  as  being  indispensable  to   give  the  court   jurisdiction.  But   if   it  appears  that  the  statutory  conditions.  were  inserted  by  the legislature  simply  for  the security   or  benefit  of  the parties  to theaction  themselves.  and  that  no   public  interests  are involved,  such   conditions  will not  be  considered  as indispensable.  and either   party   may  waive  them  without  affecting  the    jurisdiction  of  the  Court……”\n<\/p>\n
 The  requirement  contained in  Clause  2  of  the First  Schedule   regarding   the  appointment   of   an  Umpire  by  the  arbitrators   is  for  the benefit  of  the parties  to a reference  and  does  not    involve  the  public  interest.  It  is  also  clear   that  the  appointment  of  an   umpire  is  not  a    condition  which determines  the   jurisdiction of  the arbitrators   to  decide  the dispute  referred  to  thim.  It  must  follow  that  the  requirement  of   Clause   2 of  the First  Schedule  is  capable  of   being  waived. \n\n \n\n  (22)  As  an   instance  of   a mandatory   provision   which  was held  to  have  been  waived  by  a  party  we may   refer  to  the decision  of  a  Division  Bench  of  this  Court  in Bandu Hari  Kamble   v.  Bhagya   Laxman<\/a>  .  In  that  case a  notice  under  Order  XXI,.  Rule  22  of  the Civil  Procedure  Code  had  not  been  issued  to a  judgment-debtor   but  the latter  had  actually  appeared  in   execution   proceedings   and  had  raised  various   objections   but   not   the objection  regarding  the    failure   to  issue  such  a notice.  The  Cout observed  that  the  procision  contained  in  Order XXI,  Rule   22  of  the Civil  Procedure  Code,  regarding  the  issue  of a notice  to  the  judgment-debtor  was mandatory  but   that  the  provision  was  enacted  for  the   benefit   and   protection  of  the  judgment-debtors  and  can  be waived  by  them. \n\n \n\n  (23)  In  an effort   to show  t hat  the  principle   of  waiver  cannot  apply  to the   present  case,  Mr.  Dhanuka  relied   on  the  decision  of  a Division  Bench  in  Sherbanubai  Jafferbhoy v.  Hooseinbhoy  Abdoolabhoy<\/a>,  50  Bom  LR   89; (AIR 1948  Bom  292).  In  that  case  a refere nce  to  arbitration    had  been  made  by  an  order of    the Court  and after   the reference  the   parties  agreed  to  confer   on  the  arbitrator  wider  poers   than  those  which  were  given  by  the  Court's  order  of reference.  It   was held   that  the award   made in  the exercise  of those  wider  powers  was invalid. The  Division  Bench  held  that  where   a reference   to  arbitration  is   made without    an   order of  the Court   the parties  are  at  liberty  to agree to alter   or  amend  the terms  of  reference,   but  that   no  such  alteration  or  amendment  can  be  made in  a Court   referenc  without  an  order  of  the Court   to  that  effect.  The  Division  Bench  observed:- \n\n   \"Where,  therefore,  in a reference  to  arbitration  by  an  order of  the  Court  the  parties  desire   that   an   arbitrator  should  have  powers  wider  than  or different  from  those  originally  conferred upon  him  by  the  order  of  the  Court,   the  proper  procedure  for  the  parties  to  follow n  is  to  go  back  to  the Court  and  get  a  fresh order of reference   or get  the  original  order  of  amended  or  altered;  but  parties  cannot   by  their  mere  consent  confer  upon   the  arbitrator   powers different  from  those  which  the Court  had  originally  conferred.........\" \n\n \n\n Relying  onthis   decision  Mr.  Dhanuka  argued   that  the provision   contained in  Clause  2 of  the  First  Schedule  was  by  virtue  of  Section  25<\/a>  of  the  Act  incorporated  in  the decretal  order of  reference  made  by  the City  Civil  Court  in  the  present  case,  that the   said   therm  was incapable  of  being  altered  or   amended  by  consent  of    parties  without   a fresh   order  of  the  Court  to  that   effect,  and  that  therefore    the term was incapacble   of  being  waived  by  either  party.  We  are unable  to accept   this   ingenuous   argument.    When  a  party   waives   certain  provision  he  does not  purport   to vary  or  amend  it.  He  merely agrees  to  its  non-compliance.  If  waiver   implied  variation  or  amendment  of  the  provision  which  is  claimed    to have been waived. there  can  never   be  any waiver  of a  statutory   provision  for  no  party   has  the   right  of  altering  or  amending  a  statute.  The  parties  in  the present case  could not  have  altered  or  amended   any  of  the   terms   of reference  express  or implied,  without  the sanction  of  the Court,  but  this  did not  prevent  them  from  waiving   one  of  those  terms. \n\n \n\n<\/pre>\n
  (24)  Finally  it  was argued   by  Mr. Dhanuka   that  even  if  the  provision   contained  in  Clause  2  of  the First  Schedule   were held   to  be directory  the  breach  of  that  provision  by   the arbitrators  amount to legal   misconduct  and  vitiates  the award.  There is  no  substance  in this  argument.  Since  the  arbitrators  did  not  disagree  with each  other. an  umpire   had no   function to  perform  in  the present   arbitration,  even  if he  were  appointed  in  pursuance  of  Clause  2  of   the First Schedule.  The  non  appointment   of   an  umpire  cannot,  under  the circumstance,  amount   to  legal  misconduct.\n<\/p>\n
  (25)  In  the result  the  appeal  fails  and  is  dismissed  with  costs.\n<\/p>\n
 (26) Appeal  dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Modern Builders vs Hukmatrai N. Vadirani on 27 September, 1966 Equivalent citations: AIR 1967 Bom 373, (1967) 69 BOMLR 237 Author: Tarkunde Bench: Tarkunde, Chitale JUDGMENT Tarkunde, J. (1) This appeal arises from an order of the Bombay City Civil Court refusing to set aside an award made on a Court reference. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-263665","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nModern Builders vs Hukmatrai N. 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