B.J. Wadia, J.
1. This is a petition to set aside an award made under the Indian Arbitration Act by one Mr. S.D. Prabhavalker on February 2, 1935, in respect of certain disputes between the petitioner and the two respondents representing the Reception Committee of the 48th Sessions of the Indian National Congress regarding timber, bamboos, corrugated iron sheets, rafters and other materials supplied by the petitioner to respondents in or about October, 1934, for the construction work of certain temporary buildings and structures in an area enclosed at Worli and styled for the time being 'Abdul Gafar Nagar', Part payments were made to the petitioner for the materials supplied and lent on hire, and after giving credit for the same he made up his bills including his claim for the damage alleged to have been done to some of his materials by the respondents' servants and agents. The bills amounted to Rs. 19,000 odd. This amount was disputed by the respondents, and the disputes were referred to the sole arbitration of Mr. Prabhavalker. The submission paper is dated December 17, 1934. It is provided in the recitals that the arbitration shall be conducted according to the provisions of the Indian Arbitration Act, and that the parties agree to abide by and accept the award in all respects as final and legally binding. The same arbitrator Mr. Prabhavalker was also appointed in similar disputes which arose between the respondents and two other merchants, one Abdul Gani Sumar and Miya Ahmed Isa. Abdul Gani Sumar has also filed a petition to set aside the award made in his arbitration, being award No. 21 of 1935. The parties to that arbitration, however, intimated to the Court that they had agreed between themselves to abide by the final decision in the present petition.
2. The arbitrator awarded payment of a sum of Rs. 8,324-11-8 to the petitioner inclusive of the part payments already made to him, and he also awarded that certain materials should be returned to the petitioner.
3. Petitioner is a timber merchant carrying on business in the name and style of Messrs- Standard Timber Trading Co., and he seeks to set aside the award on certain grounds of misconduct on the part of the arbitrator. Legal misconduct is a term which is commonly used in reference to awards, but it has always been found difficult to give an exhaustive definition of the term. It does not necessarily involve any moral turpitude or dishonesty on the part of the arbitrator. It is misconduct in the judicial sense of the word and has been described generally to mean an erroneous breach of duty on the part of the arbitrator, however honest, which causes miscarriage of justice. It has also been described by Atkin J. in Williams v. Wallis and Cox  2 K.B. 478 as 'such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice,....' The grounds of misconduct alleged by the petitioner are spread over his petition and also mentioned in paragraph 19 at the end. Counsel for the petitioner in his opening address stated that the important grounds of misconduct on which he relied were four in number:
(1) That the three arbitrations, namely, the arbitrations of the petitioner and the two other merchants were conducted by the arbitrator at one and the same time;
(2) that the petitioner was not allowed an opportunity to produce before the arbitrator the Congress workers who had signed certain disputed vouchers of the petitioner, especially one Mulshankar;
(3) that the petitioner wanted to cross-examine respondent No. 2, but he was not allowed to do so by the arbitrator in spite of the petitioner's protest; and
(4) that the arbitrator conferred with respondent No. 2 behind the back of the petitioner.
There are certain other grounds alleged in the petition for attacking the award, namely, that it was improperly procured and that it was bad upon the face of it; but these have not been pressed by counsel nor argued. There was some evidence and argument as to which of the parties suggested the name of the arbitrator, but that, in my opinion, is not at all relevant to this inquiry for, even if the petitioner suggested the name of the arbitrator, it cannot preclude him from impeaching the award on the ground of misconduct. The arbitrator is a professional gentleman. He is an L.C.E. of the Bombay University and a member of the Institute of Engineers of India. He also stated that he was an Executive Engineer in the service of the Bombay Improvement Trust for about sixteen years. At or about the time when the materials were supplied by the petitioner to the respondents he was a member of the Construction Board of the Reception Committee of the Congress, but that fact was previously disclosed and known to the petitioner.
4. Misconduct is a question of fact in each case and has to be ascertained from the facts of the entire proceedings before the arbitrator. It really lies in the conduct of the arbitration proceedings, and the onus of proof lies on the party who alleges it.
5. The first ground of misconduct is that this arbitration was not conducted separately but simultaneously with the two arbitrations of the two other merchants, Abdul Gani Sumar and Miya Ahmed Isa, that is to say, at one and the same time, in the arbitrator's office. The first meeting was held on December 31, 1934, when all the three merchants were present in the office. Petitioner said that he and the two others were questioned by the arbitrator in the matter of their arbitrations one after the other and in all the arbitrations at one and the same time, and that this process was repeated at all the subsequent meetings. Respondent No. 2 in his evidence as well as in his affidavit in reply to the petition has denied that the arbitrations were heard together. The arbitrator was called by the respondents, and I allowed him to be examined and cross-examined upon the course of the procedure he followed and the materials he utilised in arriving at his decision. He was not allowed to be cross-examined as to the reasons for his award and the calculations upon which it was based. I also did not allow either of the parties to go into the figures and the calculations made by the arbitrator. The Court never sits in appeal from the award of an arbitrator. Its function is to see whether the grounds of misconduct alleged by the petitioner have been strictly proved. The arbitrator in his evidence denied that he questioned all the three merchants together at one and the same time. It is true that they all went together to his office on the same dates, but he said that he took up the arbitration of each one of them separately on those dates, that is, he partly went into one, and then took up the other two in their turn. He stated that the petitioner replied on behalf of Abdul Gani Sumar in the arbitration of Abdul Gani Sumar, as the latter was slow and dull in understanding questions, and, further, that at the end of the first meeting on December 31 he gave directions orally to all the three merchants together to bring before him the vouchers in respect of the materials supplied by them and the translations of their bills in English in their respective arbitrations. He also made his awards in the three arbitrations on the same date, though separately. It does not necessarily follow from all this that the arbitrations were heard together. Counsel referred to the three sheets of notes taken by the arbitrator in these proceedings. It has been held that it is generally desirable that an arbitrator should make notes of the proceedings before him, though even the absence of notes is not in itself a ground for setting aside his award, if the party objecting did not protest until after the award had been made. The allegation against the arbitrator, however, is that he took down short notes on loose pieces of paper, two specimens of which are put in as exhibit D, and that the notes contained in the three larger sheets which have been put in as exhibit 6 were made up subsequently, that is, after the petitioner wanted to have the award filed in Court in order to challenge it. This allegation is made by the petitioner in his petition, but in his cross-examination he was not at first prepared to go to that length, and when pointedly asked, he replied, 'How could I say that these notes were subsequently made up? 'Later in his cross-examination he stated that the notes were subsequently made up. On reading the notes I find that they have been taken somewhat roughly, and not always intelligently, and contain statements made by the parties, together with arguments and observations, all mixed up. The arbitrator has also referred to the petitioner in the notes as the standard Timber Trading Company, as the Company, as the Company's representative, and also as 'merchants', and it is the use of the latter expression on which counsel for the petitioner relied to show that the reference to 'merchants' is to all the three merchants whose arbitrations were proceeding before the arbitrator. Under date January 3, 1935, however, there is a reference to 'merchants' which, in my opinion, is a reference to the Petitioner alone. Counsel further relied on the fact that the arbitrator has awarded a return to the petitioner of 1250 'Malbari Kathis' from the respondents' stock, whereas according to the order placed with him petitioner had not supplied any Malbari Kathis at all, in order to show that the arbitrations were heard together. Petitioner had supplied 'Batwani Bamboos' to the respondents; Abdul Gani Sumar had supplied 'Malbari Kathis' to the respondents. On the other hand, the arbitrator stated that he was informed by the petitioner that 'Batwani Bamboos' and 'Malbari Kathis' were one and the same, and he also stated that he took the price to be the same. In one place in his notes under date December 31, 1934, he has also put the words 'Malbari Kathis' over 'Batwani Bamboos', and it is not suggested that this was done subsequently. The petitioner denied having given such information to the arbitrator. The arbitrator stated that proceedings were conducted before him in Hindustani, and that he read out the notes at the end of each meeting and explained them to the petitioner in Hindustani. This latter statement was not put to the petitioner, and I cannot act upon it in the absence of an opportunity to the petitioner to reply to it. Petitioner stated that the proceedings were all conducted in Gujarati, and that the arbitrator understood Gujarati. It must, however, be pointed out here that the arbitrator stated that he had made separate notes also in the arbitration of Abdul Gani Sumar, and that statement has not been challenged. I am not concerned with the third merchant, as the proceedings in his arbitration were over after a meeting or two, and he has accepted the award. It was open to the petitioner to have called the two other merchants or at least Abdul Gani Sumar who was present in Court throughout these proceedings to support him in his allegation that, questions were put to all the three at one and the same time and that the notes relied on were not taken at the time, but no one has' been called. The petitioner himself did not impress me as a reliable witness, his answers not being always consistent. I have already stated before that the notes have not been intelligently written. But I am not prepared to hold that they were subsequently made up from memory. Reading the notes as a whole I do not think it probable that any man relying merely on his memory could have reproduced all those arguments, figures, and observations in both the arbitrations after the award had been made. However rough the notes may be, the allegation that they were made up is without foundation. In my opinion the arbitrations were not conducted together, and the first ground of misconduct therefore falls to the ground.
6. The second ground of misconduct alleged is that the petitioner was not given an opportunity to call before the arbitrator one Mulshankar and another man by the name of Mishra, but particularly Mulshankar, who were Congress workers at the time, and who along with other workers were taking delivery of materials supplied by different merchants in the different sections of 'Abdul Gafar Nagar', and signing the vouchers of the merchants, whose goods they took delivery of. Petitioner had about eighty of such vouchers. He produced them for inspection by respondent No. 2, and before the arbitrator, and some of them were disputed by respondent No. 2. Thereupon the petitioner wanted respondent No. 2 to produce a book which has been called a stock-book or a store-book in which he alleged that entries were made in respect of the materials delivered by merchants from time to time. This book was first referred to in the arbitrator's office when the vouchers were being checked and examined by respondent No. 2 some time between January 11 and 30, 1935. Respondent No. 2 did not produce the book when called upon, alleging either that he was not bound to produce it, or that it was incomplete as all the entries from smaller books kept by the workers were not entered up in this general stock-book, or as he alleged in his affidavit in his reply to Abdul Gani Sumar's petition, because he was not bound to produce it in order to prove the opponent's claim. It was, however, stated by the arbitrator in his evidence that its production was ultimately not pressed, as it was agreed that in respect of the disputed vouchers for which the book was required the workers who had signed those vouchers should be brought before him. This agreement was also mentioned by respondent No. 2 in his evidence, but it is not referred to in his affidavit, and is denied by the petitioner. The agreement is referred to, but not clearly recorded, by the arbitrator in his notes. In his evidence he further stated that he did not attach any importance to the book and did not ask respondent No. 2 to produce it. Counsel for the petitioner thereupon argued that this amounted to a rejection of the book by the arbitrator. In his notes as of January 30, 1935, the arbitrator has stated that respondent No. 2 was not willing to produce the book as it was not up to date, and he adds, 'but I think the reason in not producing the stock-book is that all the entries must not be in the book.' It was suggested that the second 'not' has been subsequently interpolated, and that the antithesis to the previous sentence introduced by the conjunction 'but' can only have a meaning if the word 'not' was originally not there. If that was so, the arbitrator could not have consistently said in his evidence that he attached no importance to the book, and did not call for it. It must also be pointed out that the word 'not' does not appear to have been written in a different ink. The only inference that the Court can draw from the statement in the notes and from the arbitrator's evidence is that ultimately he attached no importance to the book, because in lieu of the evidence which the book might have contained, the men who had signed the disputed vouchers were to be produced before him. The petitioner himself admits that they were to be produced; in fact it is his grievance against the arbitrator that he got no opportunity to call one of them, namely, Mulshankar.
7. The question still remains whether the non-production of the stock-book amounts to misconduct on the part of the arbitrator, and whether this has caused substantial injustice to the petitioner. As the book was in fact not tendered in evidence, it cannot be strictly said that it was rejected by the arbitrator. If a material piece of evidence is tendered and rejected, it may amount to misconduct entitling the petitioner to set aside the award: see Williams v. Wallis and Cox  2 K.B. 478. In that case, however, the evidence which it is alleged was rejected was material on the landlord's claim for breach of the tenant's covenant to repair, and it was in doubt before the Appeal Court whether such evidence was tendered and excluded or not. In this case it is clear that the stock-book was not tendered and rejected. The arrangement was to produce the men who had signed the disputed vouchers before the arbitrator, and if in view of that arrangement the arbitrator thought that no importance should be attached to the production of the book, it cannot be said that in law he rejected it. Nor has any substantial injustice resulted from its non-production. Out of the vouchers produced by the petitioner eleven were signed by Mulshankar. Of these the arbitrator stated that he accepted ten, and h& rejected one, because it contained an endorsement at the back that the goods had been rejected and returned. The endorsement bears nobody's signature, but the arbitrator said that he saw it when it was produced before him by the petitioner, and the voucher was also given back to the petitioner. I do not believe: the petitioner when he said that he saw the endorsement in Court for the first time. Moreover, why one only out of eleven vouchers was singled out for a subsequent false endorsement at the back has not been explained. Seeing the endorsement the arbitrator was entitled in his judgment to reject it. The two disputed vouchers which bear the initials of Deshpande were accepted as genuine after Deshpande had admitted that the initials were his. The one disputed voucher signed by Mishra was accepted by the arbitrator, as he said in his evidence, and I have no reason to disbelieve him. One unsigned voucher was not considered, as it bore no signature, and no explanation about it was forthcoming from the petitioner. Under the circumstances it was stated both by respondent No. 2 and the arbitrator that the question of calling Mulshankar did not arise at all. His name also does not appear in the notes, whereas that of Deshpande does. The name of Mishra appears in the notes, though the last note is not a note of what transpired at a meeting, but what the arbitrator noted down for his own guidance when Mishra could not be produced. However, as I have said before, he has accepted the one disputed voucher signed by Mishra. The only voucher about which the petitioner could have a grievance was that of Mulshankar which bore the endorsement, but as. I have already said, the arbitrator was justified in rejecting it in the absence of any proof that the endorsement was subsequently forged. The non-production therefore of the stock-book does not amount to misconduct on the part of the arbitrator. If there was any misconduct or default, it was that of respondent No. 2, and as I have already said, it was not produced by him because of an arrangement to call the men who had signed the vouchers.
8. The third ground of misconduct as stated by counsel was that no opportunity was given to the petitioner to cross-examine respondent No. 2. It does not appear on the notes that the petitioner applied to cross-examine respondent No. 2, nor was respondent No. 2 asked about it. Counsel, however, in his closing address went further and stated that no opportunity was given to the petitioner to produce all his evidence, and that the arbitration was closed with out such evidence being produced. It would, in my opinion, be certainly misconduct if the petitioner wanted to call any material and relevant evidence and the arbitrator prevented him, or if the petitioner tendered such evidence and the arbitrator rejected it. There is, however, nothing on the record either in the notes or in the petition or in the evidence that the petitioner wanted to call any evidence or that he wanted to cross-examine respondent No. 2. His only statement in evidence was that neither he nor respondent No. 2 was examined on oath. He did not say that he offered to give evidence himself nor that he wanted to cross-examine the respondent. I have already dealt with the petitioner's grievance regarding Mulshankar. It is true that on the very day the first meeting was held the time for making the award which was originally twenty-one days from the date of the submission paper was extended to February 7, 1935. On January 3, nothing was done as the vouchers and the translated bills were not produced, but between January 11 and 30, the parties met in the arbitrator's office for inspection of the vouchers on three or four occasions, the last of such occasions being about January 24 or 25. The substance of what happened on those occasions the arbitrator has put down under January 3, 1935, as if it was a complete record of a meeting on that date. This was a very irregular way of taking notes. However, on January 28 he gave notice to both the parties that January 30 will be the date of the last meeting, and he stated in his notice that the parties should be present with any evidence that they wanted to tender. What actually happened on the 30th was that after some discussion the petitioner was to bring the man who had signed the disputed vouchers, and the only man's name mentioned in the notes is that of Deshpande. The petitioner did not say he wanted to call any evidence. On the other hand respondent No. 2 stated that the arbitrator said at the end of the meeting that the arbitration was closed, and I believe him. There was no meeting on the next day, but it appears that Deshpande was produced before the arbitrator either on that day or on February 1. The award was made on the 2nd, which was five days before the last extended date. Petitioner saw the arbitrator on January 31, and did not even then say that he wanted to call any evidence. The only man whom he wanted to call according to him was Mulshankar, but according to the arbitrator and respondent No. 2 Mulshankar's presence was not necessary. Petitioner alleges that he protested on February 2, when he was told that the award had already been made on the 2nd. On the other hand, the arbitrator stated that he never spoke to the petitioner at all at that time, and that in fact the award was not ready till the evening. The petitioner did not put on record his protest against the conclusion of the arbitration, and I do not think, merely because the award was made a few days before the last extended date, that the petitioner is now entitled to say, on being dissatisfied with the award, that he was prevented from calling further evidence. The arbitrator's clerk, Mr. Rele, was called to give evidence as to an interview he had with the petitioner on February 2, but I am not prepared to accept Mr. Rele's statement; the interview has not been referred to in the affidavit of respondent No. 2.
9. The only other ground urged is that the arbitrator saw respondent No. 2 behind the back of the petitioner. Of this there is no evidence at all. All that the petitioner said was that he inferred that respondent No. 2 must have seen the petitioner, because the arbitrator told the petitioner that the Congress had no funds. The arbitrator denies having made such a statement, and I believe him. Counsel further said that the arbitrator telephoned to respondent No. 2. But there is no evidence that they spoke about matters connected with the arbitration, and I believe both the arbitrator and respondent No. 2 when they said that they did not speak to each other behind the petitioner's back On any Such matter.
10. These are the important grounds of misconduct alleged by the petitioner. The arbitration was, in my opinion, not conducted as regularly and as methodically as it should have been. The award also might have been put in proper form. I should have expected that the notes taken by the arbitrator would not be as rough as they are. But are these irregularities such as would vitiate the award? In order that the Court may set it aside, the irregularities must be of such a nature as to amount to no hearing at all. This has been laid down by the Privy Council in Amir Begam v. Badmddin Husaini : (1914)16BOMLR413 . That is not the case here. It has also been held by Lord Halsbury in Andrews v. Mitchell (1905) A.C. 78, 80 that if the conduct of the proceedings is slip-shod and irregular, as in that case it was, it might tend to injustice. That is not so here either. It is well established that parties cannot get out of an award upon objections which do not affect the substantial justice of the case. It is true that the Indian Evidence Act does not apply to arbitrations. But that only means that an arbitrator is not bound by the technical and strict rules of evidence. He must not disregard the rules of evidence which are founded on fundamental principles of justice and public policy, and I cannot say that they were so disregarded in this arbitration. It was stated by Cockburn C.J. in Re Hopper (1867) L.R. 2 Q.B. 367:-
I would observe that we must not be over ready to set aside awards where the parties have agreed to abide by the decision of a tribunal of their own selection, unless we see that there has been something radically wrong and vicious in the proceeding,....
11. Scrutton L.J. observed to the same effect in Olympia Oil and Cake Company and MacAndrew Moreland & Co., In re (1918) 2 K.B. 771, when he stated at p. 778 that the Court does not interfere with the award of commercial arbitrators unless there is substantial injustice. I have considered all the facts and circumstances of the case, and I do not think that any ground of misconduct has been strictly proved on account of which I can set aside the award under Section 14 of the Indian Arbitration Act.
12. Even if the misconduct is not of such a nature as to vitiate the award, the next question is whether the Court should remit the award to the arbitrator for reconsideration under Section 13 of the Act which provides that the Court may from time to time remit the award to the reconsideration of the arbitrators or umpire. Under para. 14 of Schedule II to the Civil Procedure Code the Court may remit the award or any matter referred to arbitration to the reconsideration of the same arbitrator upon such terms as the Court thinks fit on the grounds mentioned therein. The Court is, however, not bound under Section 13 of the Indian Arbitration Act, to act only on the grounds mentioned in para. 14 of the Second Schedule to the Code. In the case of Re Arbit. Between Montgomery, Jones and Co. and Liebenthal and Co. (1898) 78 L.T. 406, Chitty L.J. stated the following grounds on which an award may be generally remitted : (a) that there was some defect patent on the face of the award; (b) that the arbitrator had made a mistake, and himself desired that the award should be remitted to him; (c) that some material evidence was discovered since the making of the award which might have affected the arbitrator's decision, and (d) misconduct. The grounds are not exhaustive, but this case has been relied on and followed in U.M. Chowdhury and Co. v. Jiban Krishna Ghose and Son I.L.R. (1922) Cal. 646, The grounds for remitting an award are much wider than those for setting it aside, but the jurisdiction is statutory and cannot be increased or decreased. Is this a case in which the Court should exercise its power to remit the award to the arbitrator? It was argued that the question of damages was not considered at all by the arbitrator; but I am not satisfied that it was not. No question was put to him about it when he was in the box. According to his award, items 10, 11 and 13 refer to damages. It may be that he has awarded a much smaller sum than the petitioner claimed, but that is not a ground for remission. The only other ground was that the arbitrator had ordered the return of 1250 'Malbari Kathis' to the petitioner. As to the cost of 1850 'Malbari Kathis' I do not think there can be any grievance, because the price of Rs. 3-4-0 per 100 is the price mentioned in the order, and I am not satisfied that that price was only subsequently added at the instance of the respondents. The only question therefore to consider is about the return of 1250 'Malbari Kathis', and as to that I have the arbitrator's explanation. It must also be pointed out that there is a difference between the Civil Procedure Code arid the Indian Arbitration Act, because the Code distinctly provides for remitting all or some of the matters referred to arbitration for reconsideration by the arbitrator. So does Section 10 of the English Arbitration Act of 1889. But under Section 13 of the Indian Arbitration Act of 1899, the Court must, I think, remit the award as a whole. I do not think I have any jurisdiction) to remit only a part of the award for reconsideration. If I remit the award, it must be first set aside, arid the whole proceedings must be reopened, but the Courts are as a rule not inclined to open up arbitration proceedings unless the requirements of justice warrant such remission. The return of 1250 'Malbari Kathis' instead of 'Batwani Bamboos' is not to my mind a matter on which I should remit the whole award for the reconsideration of the arbitrator, especially in view of the arbitrator's statement that he took them to be one and the same. I am also aware of the danger pointed out by the Master of the Rolls in Re Tidswell (1863) 33 Beav. 213 that notwithstanding the honesty and bona fides of an arbitrator (p. 217):-.it is impossible, where an award has been set aside and sent back upon such grounds, that there should not be, in spite of himself, some disposition to favour one side, and a disposition to make it appear that the objections to the award were useless, and that the sending it back was productive of no good.
It is not, however, on that ground that I am against the remission. The arbitrator is an educated man, and there is no charge of partiality or bias against him. I am not prepared to remit the award on only a small matter, and make the parties incur further unnecessary costs.
13. In the result the petition must be dismissed.
14. I have heard counsel on the question of costs. I have been referred to Section 17 of the Indian Arbitration Act which provides that an order made by the Court under this Act may be made on such terms as to costs or otherwise as the Court thinks fit. The question of costs, as in all other proceedings is in discretion of the Court, but the discretion has to be judicially exercised. As a rule costs follow the event, and there must be some special circumstances which take the matter out of that rule. I agree with counsel for the respondents that the main question here was one of misconduct which would vitiate the award under Section 14 of the Act. On that the petitioner has failed, and I must therefore dismiss the petition with costs.
15. Petition dismissed with costs.
16. In my opinion this was a fit case for engaging two counsel, and I certify accordingly.