Juggilal Kamlapat v. General Fibre Dealers Ltd. (and Connected Appeal)

Judgment

JUGGILAL KAMLAPAT GENERAL FIBRE DEALERS LTD. (AND CONNECTED APPEAL) (K. N. WANCHOO and J.C. SHAH. JJ.) Arbitralion-.!bnard set aside-Reference to a.rbitration not l1_uperseded-Second reference to arbitration, if permissible- Arbitration Act. 1940 (10 of 1940), s. 19. Disputes which arose between the parties with respect ta carrying out a contract were referred to the arbitration of the Bengal Chamber of Commerce in accordance with an agreement to refer disputes as and when -::hey arose to the arbitration of the Chamber. The award of the Tribunal of Arbitration was set aside by the High Court. On an application for referring the matter for arbitration de novo another tribunal was constituted which made a fresh award.

The questions which arose for decision were whether after the first award was set aside the reference to arbitration was exhaus· ted and the arbitrator had become functus officio and whether without a fresh arbitration agreement it was not possible to have the same dispute decided again _by the arbitrator. Held, that the arbitrator became functus officio after he gave the av.:ard but that did not mean that in no circumstances could there be further arbitration proceedings where an award was set aside or that the sam~ arbitrator could never have anything to do with the award with respect to the same dispute.

Section 19 of the Arbitration Act empowered the Court not to supersede the reference and to leave the arbitration agreen1ent effective even when it set aside the award and there .. upon it would depend upon the terms of the arbitration agreement whether the arbitration proceedings could go on with respect to the same dispute or with respect to some other dispute arising under the arbitration agreement. Barangore Jute Ftu0tory v. H1das Chand Rupchand. (1958) 62 C.W.N. 734, Rallis India Ltd. v. B. V. Manickam Gheuy, A.I.R. 1956 Mad. 369, and Firm Gulab Rai Girdhari Lal v. Firm Bansi Lal Hansraj, A.LR. 1959 Punj. 102, approved. Mordu v. Palmer, ( 1870) 6 Ch. App. 22 and Sutherland and Go. Hannevig Bros. Ltd. [1921] I K. B. 336, referred to. In the present case the first award was set aside but as the reference had not been superseded and the arbitration December 12. J.,,UolK.,,.._, G-ol Filn1 n,,,,u,, LU. 102 SUPREME OOURT REPORTS fl962]

SUPP. agreement subsisted it w:u open to the Chamber to appoint another tribunal under r. X of the Chamber Rules. CIVIL APPKLLA.TB JURISDICTION: Civil Appeal No. 309 and 526 of 59. Appeals by special leave from the judgment a.nd orders aad decree dated Augiut 27, 1958, November 24, 1958, and March 10, 1958, of the Calcutta High Court, in Award Caae No. 103of1955 a.nd Appeal from Original Order No. 26 of 1956 respectively. N. O. Ohatterje.e and B. P. Malieshwa~, for the appellant (in C. A. No. 309 of 59). H,N. Sanyal, Additional Solicitor-General of India, S. K. Gupta and D. N. Mukherjee, for respondent (in C. A. No. '309 of 59). N. G. Ohatterje.e, !rf. G. Poddar and S. N. Jlukerji, for the appellant (in C. A. N'0. 52.5 of 59). H. N. Sanyal, Additional Solicitor-General of India, A. N. Sinliu and P.K. -,O,fukherje.e, for the ri>spondent (in C. A. No. 525 of 59). 1961. December l:l.

The Judgment of the Court was deliverc,d by WANCHOO, J. -These two appeals by special leave from the judgments of the C'llcutta High Court raise a common question of law and will be dealt with together. It will be convenient to set out the facts of a peal 309 and deal with them in connection with the point raised on behalf of the appellant. These facts are that a contract was en· tered into betwoen tne parties for supply of cornsacks on August 29, 1951. The contract contained au arbitration clause in the following terms . •·All matters, questions, dieputes, difl'- reuce and/or claim• arising out or and/or oonuerning and/or in connect.ion with and/or in oonsequence of or relating to thls oontraot whaLher or not the obligation of either or both parties under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to the arbitration of the.

Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted." Disputes arose with respect to carrying out of the contract and on October 25, 1951, the respondent referred these disputes to the arbitration of the Bengal Chamber of Commerce (hereinafter referred to as the Chamber). That case was numbered 217-© of 1951 in the Chamber's records. On April 17, 1952, the Tribunal of Arbitration made an award disallowing the claim of the respondent. This award was filed in the High Court. On May 25, 1953, the award was set aside on the ground of misconduct on the part of the arbitrators by a learned Single Judge. That order was taken in a.peal and on.July 8, 1954, the appeal wa8 dismissed. Later, leave to appeal to this Court was refused and thus the order of the learned Single Judge setting a.side the award finally stood.

Soon after the award had been set aside by the learned Single Judge, the respondent addressed a letter to the Chamber on September 7, 1953. It was said in this letter ·that as the award in case No. 217-G of 1951 had been set aside by the High Caurt, the respondent begged to refer the matter for arbitration de novo and enclosed its statement of the case. Thereupon another tribunal was constituted under the rules of the Chamber to decide the disput afresh. The appellant appeared before the tribunal and contended that it had no jurisdiction to make an award on a second reference in the same dispute. The tribunal, however, proceeded to decide the reference and made the award on Juggil:il Kamlopa• General Fibre Dealers Ltd, Wanthto J, llldl '11uilol Kan&la;at c,....iFiM1 DHJ.rs Ltd. w.-...J, March I ;i, 1955. This timl' the award wu in· favour of the respondent. Thereupon on August 4, 1955, the appellant made an applioation to the High Court praying that the award be set aside.

In the alternative, ~he appellant prayed that the award be declared null and void and the arbitration agreement between the parties be superseded on the ground that the second reference was incompetent. The application was opposed by the respondent and its oontention was that this was not a second reference, and what the respondent wanted was that the Chamber should in the event that had happened take up the dispute again and make a proper award. Reliance in support of th·· plea that such a course was permissible was plaoed on behalf of the respondent on the decision of the Calcutta High Court in The Baral'l{Jol'e Jute Factory Cu. Lt,d. v . . lle,.ssrs. Hui.as Chand Rupcharu1{1).

The loamed Si1111le Judge relied on the decision in The Ram1!.gore Jute Factory ('J and held that from what the respondent said to the Chamber i,ts letter of September 7, 1953, it was reasonably clear that all that. it wanted was that the Chamber should in the event that had happened take up the dispute again and make a proper award. It could not therefore be held because of some langqage used in the letter that the respondent was making a fresh reference. Consequently, it was held that the Chamber had jur isdictiun to dooide the dispute after the earlier aw~d had been'~t aside and what the respondent had aaked for wa.8 for the continuance of the original reference, which h&d not been supel'l!eded. The learned Sirtgle Judge then went into the question whether there wa.11 souh misconduot aa would justify setting aside the award and held that there were no grounds made out which would juetUy the 11etting aside of the aw-atjl.

Consequently, the application for setting aside the award was dismiaaed. Thereafter the llppellant ea.me to th;~ Ccinrt for special ,.) (19SR)6'C W ~ 73i 2 s.c.R. SUPREME COURT REPORl't-i 10.J leave, &hich was granted; and that is how the matte.r has come up befort: us. The main question that has been argued before us is tliat the first award was set aside on May 25, 1953, the reference was exhausted and the arbitrator had become funct·us officio and it was therefore not possible without a fresh arbitration agreement to have the same dispute decided agian by the arbitrator, irrespective of whether the letter of September 7, J 953, amounted to a second reference or was a mere request for continuation of the proceedings in the original reference, which had proved abortive as the award originally made had been set aside. Reliance i'l this connection is placed on what are called certain fnndainental principles governing all arbitrations.

It is urged that once an award is wholly set aside, the arbitrator is Junci·us ojf ico and thereafter he cannot function again to decide the same dispute. This is said to be a fundamental principle of all arbitrations, and reliance is placed on a passage in "Russel on Arbitration" (15th Edu., p. 298), where the effect of setting aside an award is stated thus-"If an award is wholly set aside, the arbitrator is functus officio." Reliance is also placed on Mordue v. Palmer ('), where it was held- "An arbitrator having signed his award is functus officio and cannot alter the slightest error in it, even thoug such error has arisen from the mistake of the clerk in copying the draft. The proper course in such a case is to obtain an order to refer the award back to the arbitrator." Reliance is also placed on S1~therl&nd and Company v. Hannevig Brothen Limited(').

That was a case under the English Arbitration Act of 1889 which provided that an arbitrator could correct in a.n a.ward any clerica.l mistake or error from any (!) ( 1870) 6 Ch. App. 22. (2) [1921] I. K.B. 336, Juggil .I Kamlapa Genera! Fibre DtalerB Ltd. Wan.choo J. •.,,u.i Kamiopat a-al Fib•1 /)fa/,,, Ud. W ...... J. 106 SUPREME OOURT REPORTS [1962] SUPP. accidental slip or omiBBion and had thus varied the rule laid down in Mordue's case('). It was however held in that rase that the correction made by thtl arbitrator was not justified under the Arbitration Act. These cases in our opinion have not much bearing on tho question l1efore us. It is true that generally speaking, an arbitrator is functus officio after he has made the award; but this only means that no power is left in the arbitrator to make any change of substance in the award that he had made (except in certain circumstances which have been provided in tho law).

What we have to see however are the scheme and the provisions of the Arbitration Act, No. X of 1940 (hereinafter called the Act), which govern the proceedings in arbitration in this case. These provisions are to be found in Chap. II of the Act which deal with "arbitration without intervention of Court." Sections 3 to 7 deal with various aspects of arbitration agreements with which we a.re not concerned in the present case. Sections, 8, 11 and 12 deal with the power of a court to appoint or remove arbitrators or umpire. Section1 9 and IO deal·with the right of a party to appoint a new arbitrator or sole arbitrator and a.IEO with the appointment of an umpire. Section 13 deals with the power of the arbitrator and s.14 provides for the signing oi the a.ward and giving notice in writing to the parties of the making and signing of the award and filing the same in court. Section 15 gives power to the court to modify the a.ward in the .iircumstanoes mentioned therein.

Section 16 gives power to the court to remit the a.ward for reconsideration under certain circumstances. Section 17 provides for delivery of ju~mont in terms o~ the award where the court sees no ca.use to .-emit tho award or to set it asitle. Section 18 provides for making int.erim orders. Section 30 which is in Cha.p.V sets out the grounds on which an a.ward may be set aside. (I) (1870) 6 Ch. App. 22. 2S.C.R. Finally, we come to s.19, which is the section on the interpretation of which the decision of this case depends. Section 19 reads as follws :- "Where an award has become void under suh-section(3) of section lG or has been set aside, the court may by order supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred." Before we consider what. s.19; provides we might advert to two. matters.

In the first palce, it is not disputed before us that the English Arbitration Act does not contain a provision similar to s.19; the consequence of this is that the decisions of English Courts may not be of much assistance on this particular aspect of the matter before us. Secondly, there was a parallel provision in para. 15(2) of 8ch. II of the Code of Civil Procedure before 1940 as to the order to be passed by the court when setting aside an award, which was in these terms :- " (2) Where an award becomes void or is set aside under cl use ( l), the court shall make an order superseding the arbitration and in such case shall proceed with the suit." It will be seen from this provision that when a court set aside an award under Sch. II the reference had to be superseded also, and the court was enjoined to proceed with tht' suit, the provision being contained in that part of Sch. II which dealt with arbitration in suits: But the provjsion also applied to cases covered by para. 1 i read with para. 19 and also by impli8ation to arbitrations outside court un<ler para 21.

Bnt s. Hl of the Act has dearly made a departure from the parallel provision contained in Sch. II, para. 15 ( 2) and we have therefore to see what is the extent of the dep1irture made by it. It is clear frvm s. la that there are three matters which hav<' to be bome in mind in arbitration Juggilal Kamlapal General Fibre Dealers Ltd, lVanchoo J. IHI Ju11ilo/ Kuoio/al 0.rtn•l Fibr1 Dt•l•rs Lui. W-.laaJ. 108 l'UPRJ:ME C-OURT REPORTS [1962J BUPP. proceedings. There is first the arbitration lljp'ee· ment. Next comes the refrrence to arbitration and lastly the sward. Section 19 provides iflkr alia that where an award has been Ht aside, the court may by order supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect w i 1 h respect to the difference referred. The sectior. therefore leaves it to the discretion of the court \\hen it decides to set a.side an a.ward, whether to supersede the reference or not.

It may not supersede the reference at all in which case though the a.ward may be set aside the reference wlll continue. But if it supenedee the reference it has also~ inconsequence to order that the arbitration agreement on the oasis of which the reference wu made would cease to have effect with respect to tihe diff Prence referred.

It i1 only tJierefore when tihe court orders supereellllion of the refereuoe that tile consequence follows that the arbitration agreement ceases to ha.Te effect with r68Jlect to the aubjeot matter of the reference The intention of the legislature in making this change in the coneequ~ enoes to follow the 1etting aside of an a.ward is clear in as much as the provision recognises that there may be different kinds of arbitration agreements, some uf which might be exhausted by thr reference already made and the a.ward following thereon v.hich has been set aside while others may be of a more comprehensive nature and may contemplate continuation of the reference relating to the ea.me dispute or 11ucooBSive referenoee relating to different disputes covered by the arbitration :i.greement. The legislature has th.irefore giTen discretion to tho court under s.19 to decide when it sets aside an award what the conaequenoe1 of its order setting a.side the award 1':111 be.

If the · court finds that the arbitration agreement ia of the kind which exhaust. itself after the firai reference is mae• M if it finda on aooount of the reuona which have impelled it to Ret aside the award that there should be no further reference of tbe dispute to arbitration, the court has the power to supersede the reference and thereupon order that the arbitration agreement shall cease to have effect with respect to the diff0rence referred. On the othere hand if the court, finds that the arbitration agreement is of a general nature and contemplates continuation of the reference with respect to the same dis• pute or successive references with respect to dift'ernt disputes arising under th.e terms of the arbitration agreement it may not supersed" the reference with the result that the reference as well as the arbitra' tion agreement on which it is based survives.

In such a case there can in our opinion be no doubt, that where the reference and the 'wbitration agreement survive the same dispute may go before the arbitrators again provided there is machinery provided in the arbitration agreement which makes this possible.

It will thus be seen that the discretion vested in the court under s. l 9 depends upon the nat11re of the arbitratic~1 agreement in particular cases and it is on a consid{·ration of those terms that the court may decide in one case to supersede the reference and order the arbitration agreement to cease to have effect after taking into account the reasons which have impelled it to set aside the award and another not to set aside the reference with the resul• that the reference and the arbitration agreement subsist; and if the arbitration agreement provides for machinery to have further arbitration on the same dispute or other dispute' arising under the arbitration agreement it is permiss'ble to have further arbitration on the same dispute or other disputes. The same discretion is given to the court with respect to arbitration under Chap.

III of the Act dealing with "arbitration with intervention of a court where there is no suit ptinding," as s.20(5) provides that after the arbitration agreement has been ordered to be filed, the arbitration shall proceed Jugt!,ilal Karnf,ip. Gen ·1al Fibre Dealers ltd. Wa11c'100 J. 11/dl l•c;1a1 K...Jop•I 011M1al Fibrt DtaUrj U,. 110 SUPREME OOURT REPORTS [1962) SUPP. in aocordaoce with, and shall be governed by, the other provisions of the Act so far as they can be made applicable. Further we find that the same discretion has been given to the court in the matter of arbitration in suits provided under Chap. IV, was s. 25 provides that "the provisions of the others Chapters shall, so far as they can be ma.de applicable, apply to arbitration under this Chapter." The proviso to s. 2fi gives discretion to the court in any of the circumsta.nCJ3s mentioned in ss.

8, IO, 11 and 12, instead of filling up the vacancies or making the appointments, to make an order super· sedinl.( the arbitration and proceed with the suit, and when' the court su~rsedes the arbitration under A. HJ it i;hall proceed with the suit. The sc·beme of the Act therefore is whether the a.rbit1 ation is unc.ier Chap. JI, Chap. HI or Chap. IV, to give discretion to the court to decide whether to · supersede the r!'fcrence or not. Where it de~ides to supersede the refer!'nce it hll.l' to order that the arbitration agreement shall cease to h'lve effect with respect to the difference rt•fcrr!'d ; but where it decides not to supersede the reference and the reference and the arbitration agreement subsist and if there is machinery provided in the arbitration agreement for making a further reference or for continuing the same reference, further arbitration oa.n take place.

The contention therefore urged on behalf of the appellant that once the l\ward is ee\ aside the arbitrator becomes functu.~ officio and consequently there can be no further reference with respeot to ihe dispute decide'1 by the nward which is set asirle, must fail in view of the specific provisions of e. 19 of the Act. 'Ve have already said that generally ol'eaking, the arbitrator becomes f1111ctus <iffir·io after he ha.s given the award; hut t.hat riot's not in our opinion mean that irr no cir<'umstanccs can thl're ho further arbitmtion prn•·eedings "herP an award 2 is set aside or t!iat the same arbitrator can never have anything to do with tb.e award wit!i respect to the same dispute. Section 13 ( d), for exa-uple, gives power to the arbitrator to. correct in an award any cleriral mistake ot error arising from any accidental slip or omission. Further s.16 gives power to the court to remit the award to the arbitrator for reconsideration.

Therefore, when it is said that the arbitrator is generally fanctus· officio after he has made the award, it only means that he cannot change that award in any matter of substance himself. But that does not take away the court's power to remit the award for reconsideration under s. 16 or to refuse to supersede the reference even though the award is set aside leaving it to the parties to take such further action under the arbitration agreement for further arbitration if it is possible so to do under the terms of a particular arbitration agreement. We are therefore of opinion that whatever may be the position in the absence of a provision similar to s. 19 of the Act there can be no doub~ thats.

19 gives power to the court not t.o supersede the reference and so leave the arbitration agreement effective ev!Jn when it sets aside award and thereupon it will depend upon the terms of the arbitration agreement whether arbitration proceedings can go on with respect to the same dispute or with respect to some other disputes arising under the arbitration agreement. This was the view taken in the Barangore Jute Factory case{'). Similar view has been taken in Rallis India Lt,d. v. B.V. Manickam Ghetti & Go.(') and in Firm Guktb Rai Girdhari Lal v. Firm Ban.si Lal Hansrajl'). We think that this view is correct. It is not in dispute that the reference was 110t superseded in this case when the award was set aside in May 1953. It will therefore depend upon (1) [1958] 62 C.W.N. 734. (2) A.].R. 1956, Mad. 369. (3J A.l.R. 1959, Punj. l 02. Juggilal Kamlc.pat Ge--n~l Fibre Dealers Ltd WanchQo J, 1P61 Jflflilal K.?,,,Japat GtMfal Fi.brt n"''''' Lli. w .... .1..

J. the terms of th!\ arbitration agr<'ement in this case whether it was possible to have further arbitration with respect to the same dispute . We have already Ret out the term in the contract relatin~ to arbitrat.ion and it is clear that that term iH very wide in its qm plitude and contemplates reference of disputes as and when they arise betwe<"n the partir,s to the Cham her. Further as the Chamber is constituted the arbitrator in this term of the contract. and as the Chamber consists of a large number of members and has its own ru Jes for constituting arhitral tribunals. It is in our apinion quito possible on the tl'fms of such !ln arhitration agr<'emont to constitute another tribunal to decide th~ same dispute where the reference remains pending and has not been set aside under s. 19, provided there is machinery fur appointing rlifferent pMsons as arbitrators under tho rnl<'s of the ChambN.

It is however urg(•d that this is '.l. spcoml reforcnce of the same dispute and this at qny rate is not contemp!11terl by the term relating to arbitr1ttion in the eontract. We aro not 1mpres3ed by this argument. Stress in this connection has been laid on the letter of Sepfomber 7, 195:1, in which the respondent. said that it begged to refer the matter for arbitration de novo. Those words do not in our opin;.on Rhow that a si>cond reference was being made of the dispute. The letter begins by "aying that the Chamber was aware that tbe previous award had been set aside. It waa in thoae circumstanres that the respondent told the Chamber that it begged to refer the matter for arltitration de ·wn·n. In the context this can only mean that th(' respondent was asking the Chatnbl'r to take up the refprence again th1· reference had not brt>n superseded and arranire to continue the arbitration proceedings further.

The only qui·stion therefore that will arise is whether under the rules of the Chamber it was poRsible to constitute another tribun<Ll to consider this dispute again. If that is possible, we fail to see why the r.rbitration proceedings should not go on further as the reference was not superseded in this case, and the arbitration agreement subsisted. This brings us to the rules of the Chamber relating to the appointment of arbitral tribunals. It is urged on behalf of the appellant that there is no provision in these rules for appointment of an arbitral tribunal where an award made by an earlier tribunal is set aside say, for misconduct. If this contention is a justified it will certainly not be possible to appoint :mother arbitral tribunal to decide the reference after the award made on it by the earlier tribunal is set aside. Reliance however is placed on behalf of the respondent on rr. V, VII and X made by the Chamber for the appointment of arbitral tribunals.

It appears that no reliance was placed on r. V in the High Court; reliance however was placed on rr. VII awl X in the High Court. The High Court held that r. VII justified the appointment of the tribunal in the present case, though it was of the view that r. X would not justify it. The appellant on the other hand contends tha.t none of the three rules ftuthorises the appointment of a fresh tribunal after an award is set aside and therefore there is no machinerv un'.!er the term' of the arbitratio11 ~greement by which the a_rbitration can be farther carried on, it being not drnputed that the earlier tribunal whose award had been set aside on account of misconduct· could not bn again appointed. Rul" V(l) provides for an application for arbitration. Rule V(2) lays down that "on receipt of such application the Registrar shall constitute a court fot the adj11dication of the dispute."' It is urged on Juggital Kamlapat Gv,, uif Fibre f)erl/rrs _f,td. Wan(,hao J. 19111 J"Uilal Kamlop•t Gential Fih1e Dialers Utl Wanchoo J, 114 SUPREME OOURT REPORTS [1962)

SUPP. behalf of the respondents tha.t a fresh tribunal could be constituted under r. V (2) a.fter the a.ward of the earlier tribunal bad been set a.side, a.s the Registrar is authorised to constitute a court on receipt of an application bv the Chamber under r. V (I). We a.re of opinion that this contention is not well founded. Ruic V(2) applies to the first appointment after the receipt of the a.pplicat ion a.nd that appointment was ma.de in this case and the award of the tribunal appointed under r. V (2) was set a.side. Rule V (2) rloes not in our opinion contemplate a second appointment after the a.ward of the court appointed under it on receipt of the application ha11 been set a.side. The re~pondent cannot sustain the appointment of a fresh tribunal under r. V (2). Rule VII has been pressed into service by the High Court in this connection and it ha.s been held on 1 he basis of the Barangare Jute Factory's case (1) th;;t r.

VII justified the appointment of a fresh tribunal in a ca.sJ where an a.ward made by the earlier tribunal is set a.sirie. In that case the High Court was conscious that it was stretching the rule in applying it to the situation where an award is set asirle. Rule VII says that "if the Court have allowed the time or extended time tu expire without making any award, and without ha Ying signifit,d to the Registrar thoit they cannot agree, the Registrar eha.11 constitute in manner aforesaid another Court which shall proceed with the arbitration and shall be at liberty to a.ct upon tlw record or the pro<"eedings as then existing and on the <Widence, if any, then taken in the arbitration or to t·>m· mence t,he arbitration de ·ii.om."' ltule XXV make:; prov1s10n that th" award · shall be macle within four months or within such extendod time as ru:iy be a.greed to between tlie · partiPs to the reforence. Huie VII obviously rofers to " case where tho time or the extended time (I I i,1•158)

Ci:l c_ w N. 734. 2S.C.R. iJ.llowed to the tribunal has been allowed to expire; ib 0annot refer to a 1laS<' where the tribunal has made the award within the time fixed but later that award is set asidP by court. It would in our opinion be stretching the language of r. VII too far to make it applicable to a case like the present. We cannot therefore agree with the High Court that r. VII justified the appointment of a fresh tribunal in tile present case. This brings us to r. X. The High Court thought that this rule could not apply.

Rule Xis in these terms :- "If any appointed arbitrator or umpire neglects or r9fuses to act or dies or become incapable of acting the Regietrar shall substitute and appoint a new arbitrator or umpire as the case may be in manner aforesaid and the Court so reconstituted shall proceed with the arbitration with liberty to act on the record of the proceedings as then existing and on the evidence, if any then taken in the arbitration, or to commence the proceedings de novo." We are of opinion that it was open to the Registrar under this rule · to a.ppoint a. fresh tribunal because the earlier tribunal had become incapable of acting in view of the fact that its award had been set aside on the ground of misconduct. lt has been urged on behalf of the appellant that the words "becomes in0apable of acting" qpply only to physical inability to act and in particular stress is laid on the collocation of words where these words follow the word "dies".

We are however of opinion that these words c:mnot take their colour from the word "dies" and are a separate category by themselves and must be interpreted on their own. Now thAre is no doubt that generally speaking an arbitrator may become inaCpa.ble of acting bPcause of some physical cause, for example, he may fell ill or may go mad and so 19~1 Juzgila/ Ka•nlaf'tt General Fibre Dealers Ltd. Wa111ho I. 11141 J"UUai Kamlapat G11Ural Fibrt Dtaln-s Ltd. w .. , ... J, on. But we do not think that these words only refer to physics.I incapacity; in our opinion, they refer to a.ny kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber before they are appointed. We may in this connection refer to the opinion of Huesel ("Russel on Arbitration", 15th Edn., p. lll7),-where dealing with similar words in s.

IO(b) of the Enizlish Arbitration Act of 1950, it has been said a.a followa :- "It would appear that the word 'incapable' in section I O(b) must refer to some incapacity a.rising after the date of tho appointment, or not known to the parties at that date." Clear)~ therefore, the words "becomes incapable of acting ' do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which Wiil! there before the appointment but was not known to the parties or to the Chamber in this case. Take, for example, the case of persons appointed by the Chamber to decide a. dispute; after tho appointment, one arbitratior acquires an interest in the subject-matter of thP, dispute. Obvidualy such a person must be held to have become incapable of acting tven though there is no queation of any physical incapacity on his pa.rt. We are therefore of opinion that the words "becomes incapable of acting" in r.

X are of wide amplitude and do not refer tb cases only of physical incap11city but to any kind of incapacity a.rising a.ftn the appointment or even before the appointmer t 11 provided it WM not known to the parties, or to the Ch'UI!ber in the present case. We cannot therefore agree with the High Court that r. X will not apply to the present case. What has happened in this case ie that the previous tribUnal made an award. That award hae 28.C.R. been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct, Further as the reference has not been superseded and the arbitr3tion agreement, subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under r. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement.

No other point has been urge'd on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court. Therefore, appeal No. 309 must fail. Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under s .. 33. of the Act paying for the relief that no arbitration agreement existed after the earlier award had been set aside and therefore there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that this appeal also when the earlier award 'v.as set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appeal.

What happened in this case was that t.he learned t;ingle Judge allowed the application and revoked the authority of the Chamber to arbitrate. There was then an appeal by the present respondent Jug:ilal Kam/apat GeTUr"l Fibre Dealers Ltd, Wanchoo J. IHI J"lliW Iram/apld Gt111ral Filu1 DlllUrs Ltd. 118 SUPREME OOUR'l' REPOR.1.'S [1962) stJP:t>. which was 11-llowed on the basill of the Barongor~ Jvie Factory case('). Thereupon the present appeal ha.a been brought to this Court by 1pecial leave. It has been contended on behalf of the appellant that the order under s. 33 was not appealable in view of the provisions of s. :l9 of the Act and therefore the High Court ha.cl no jurisdiction in appeal to set aside the order of the learned Single Judge. This point a.s t.o jurisdiction was not taken before the appeal court nor has it been takl'n in the special leave petition to this Court or in the statement of case.

It seems that the appeal was entertained in the High Court on the view that an a.pp<>al lay under the Letters Patent from an order of a 8ingle Judge. Eveo if we were t(> entertain this ~rgument the respo00.n* 1'ill a.. M&iltl io milk epeci&l leave to appeal against the iird41rofthe SiQgle Judge and we will ~ justified having rt·garcl to the course of events and the view expressed in the companion appeal in granting leave after condoning thP delay and in passing the same order which has bern passed by the High Court in appeal. Technical requirements of procedure may of course ho fulfilled by following the course suggested but no Wlt'lful purpee1 Will be served thereby. For re&aons whieb We have already giv.en the order of the appeal court ill right. There is no re&eon to .interfere with it ..W this appeal Will also have to be dismieled. We therefore dismiss the appealti with con.- one set of hearing cost.a. Appsal d'-'-d. (I) (1958) 62 C.W.N. 73i.