HURDWARY MULL Vs. AHMED MUSAJI SELAJI

JUDGEMENT

(1.) This is an application for an order that an award made in a certain arbitration be filed in Court under the provisions of the Indian Arbitration Act, 1899.

(2.) The submission, or rather the two submissions, to arbitration are contained in two contract-notes both dated the 23 December 1904, relating to the sale of certain B. Twills bags sold on account of Messrs. Hurdwary & Co., to Messrs. Ebrahim Solemon & Co. The submission which is in identical terms in both notes is in the following terms: Any dispute whatsoever arising on or out of this contract shall be referred to arbitration, under the Rules of the Bengal Chamber of Commerce applicable for the time being, for decision and such decision shall be accepted as final and binding on both parties to this contract. The award may at the instance of either party and without any notice to the other of them be made a rule of the High Court of Judicature at Fort William.

(3.) The Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce (so far as material to be here stated) are as follows: IV. The secretary or officiating for the time being of the Chamber shall and he is hereby appointed to be and act as the Registrar of the Tribunal and his duties as such shall ordinarily consist of or include the following: He shall by himself or his subordinates receive submissions, references or applications to the Tribunal and payment of fees and costs, notify the arbitrators, give notice of hearing and other notices to parties, keep a register of submissions, references and applications to the Tribunal and a register of award and keep such other books and memoranda and make such returns as the Chamber shall from time to time require and shall render such assistance to the arbitrators in arbitrations as they may require and generally shall carry out the directions of the Chamber with regard to the conduct of arbitrations. VI. That in every case where a dispute has arisen in relation to a contract which provides for a decision thereof by the Tribunal, an application shall be addressed by either party to the Registrar who on receipt of such application shall constitute a Court by nominating in writing two or more arbitrators and also, in case of need, an umpire or if both parties in and by such application so desire, a single arbitrator to adjudicate on the dispute. The consent of the arbitrators to act shall be obtained by the Registrar and the arbitration shall then be conducted in accordance with, the following rules, with which are incorporated, where not expressly or impliedly provided to the contrary, the provisions of the Indian Arbitration Act: (b) If any arbitrator or umpire decline or fail to act or if ho die or become incapable of acting, the Registrar may appoint a new arbitrator or umpire in his stead in like manner. (c) The parties to the reference and all persons claiming through them respectively shall, subject to the provisions of any law for the time being in force, submit to be examined by the arbitrators on oath or affirmation in relation to the matters in dispute and shall, subject as aforesaid, produce before the arbitrators all books, deeds, papers, accounts, writings and documents within their possession or power respectively which may be required or called for and do all other things which, during the proceedings on the reference, the arbitrators may require and, particularly in the case of references relating to piece-goods or jute, shall comply with the arbitrator's requirements as to production and selection of samples and otherwise. (f) The arbitrators shall have power to appoint a time and place for the hearing of references and within 7 days of notice on that behalf, the parties shall prepare and submit to the Registrar a written statement with regard to the matter in dispute or difference. (g) No party to a reference shall without express permission of the arbitrators be entitled to appeal in person or by counsel, attorney or other advocate or adviser before the arbitrators or insist on or require the arbitrators to hear or examine witnesses or receive oral or documentary evidence but the arbitrators at discretion may through the Registrar require the parties, with or without witnesses, to attend before them or before any committee or sub-committee of the Chamber to be examined on or without oath or solemn affirmation." (j) The arbitrators may, at their own instance at any time or times before making a final award, consult, refer to and act on and adopt the advice, recommendations or suggestions of any committee or sub-committee of the Chamber having or exercising special jurisdiction or powers relating to the particular industry, commodity, produce or branch of trade concerned in the reference or of any experts whether members or not and may also at the expense of the parties consult and adopt the advice of solicitors or counsel upon any question of law, evidence, practice or procedure arising in the course of the reference. (l) The arbitrators shall make their award in writing within 14 days after entering on the reference or on or before any later day to which the arbitrators by any writing signed by them may, from time to time, enlarge the time for making the award. (o) No award shall be set aside or varied or attempted to be set aside or varied by reason or on account of any informality, omission or delay or error of the proceedings in or about the same or in relation thereto or on any other ground or for any misconduct short of collusion or fraud on the part of the arbitrators. (q) The Indian Arbitration Act, 1899, so far as the provisions thereof are not inconsistent with these Rules, shall apply to all references to the Tribunal.