BHUWALKA BROS. LTD. Vs. FATEHCHAND MURLIDHAR

JUDGEMENT

(1.) THIS is an application for leave of the Court to revoke the authority of an arbitrator. The petitioner also challenged the existence of the arbitration agreement and prayed for Court's decision on the question. This prayer, however, has been abandoned by Counsel.

(2.) IN this application the only point I have to consider is whether I should grant the leave. The Court has power to grant leave if it thinks fit. Section 5, Arbitration Act is as follows: 'The authority Of an appointed arbitrator.....shall not be'revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement.' This section corresponds to Section 5 of the Indian Arbitration Act, 1899, & Section 1, English Arbitration Act of 1889. Section 5 read: 'A submission, unless a different intention is expressed therein, shall be irrevocable except, by leave of the Court.' The English section was also in the same words in substance.

(3.) LORD Esher, in 'Re. Smith and Service and Nelson and Sons' said, at p. 550: 'The phrase is used which had always been used, 'a submission shall be irrevocable'; that is to say the power of the arbitrator cannot be revoked when he has once been appointed. It does not mean that the agreement to refer is irrevocable, because that always was in the true sense of the word irrevocable.' A distinction has been made in England between 'agreement to refer' & 'submission.' This distinction has been maintained in our Act of 1940. Section 13(2)(b) provides: 'Where the authority of an arbitrator is revoked ........the Court may, on the application of any party to the arbitration agreement, order that the arbitration agreement shall cease to have effect with respect to, the difference referred.'