1. This is a defendant's appeal from an order of the Court below filing an agreement of reference to arbitration. The application was rather a belated one and was filed on 12th May 1933, on the strength of an agreement of reference to arbitration, dated 12th May 1930. The agreement was not filed along with the application, but it was stated that it had been given to the head arbitrator. Certain terms of the agreement were mentioned in para. 6 of the plaint. The defendant admitted only a part of para. 6 and did not admit the rest of the allegations containing the terms of the agreement. The fact that an agreement of reference to arbitration had been entered into was admitted. It was pleaded that, as the original agreement was not forthcoming, it could not be ordered to be filed. There was a further plea that the person who had agreed on behalf of the defendant had no authority to do so.
2. The Court below has come to the conclusion that the 'Pairokar' of the defendant had authority to act on his behalf, and has also thought that, although the original document is not forthcoming yet an order for filing can be made. We do not think it necessary to go into the question whether the 'Pairokar' had or had not authority to act on behalf of the defendant, because in our opinion this application must be dismissed on another ground Para. 17, Schedule 2, Civil P.C., provides that:
Where any persons agree in writing that any difference between them shall be referred to arbitration, the parties to the agreement, or any of them, may apply to any Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court.
3. Notice is to be issued to all the parties to the agreement under Sub-clause (2) and under Sub-clause (4):
Where no sufficient cause is shown the Court shall order the agreement to be filed, and shall make an order of reference to arbitrator appointed in accordance with provisions of the agreement....
4. Obviously para. 17 contemplates that the agreement should be in writing and should be before the Court, so that it may be ordered to be filed in order that an arbitrator may be appointed in accordance with its provisions and he may be called upon to act upon the agreement. Now, it is not necessary that the document should be in the form of a written contract signed by the parties so as to be an instrument or document; but it is certainly necessary that there should be some writing which should embody the whole of the agreement. Obviously the intention seems to be that the terms of the agreement should not be a matter of controversy between the parties in the Court which has to decide whether the agreement should or should not be filed. Once the Court is satisfied that the agreement which is in writing and is before it, was entered into by the parties, it can proceed under para. 17, but where no writing is produced and the terms of it are not admitted, the Court cannot order it to be filed without first ascertaining the terms as to which it would have to hold an enquiry, which does not appear to be contemplated in the provisions of para. 17. It is not merely a case of proving the contents of a document which has been lost, which may be done by secondary evidence; but the agreement itself has to be ordered to be filed and therefore it should exist in writing before the Court. As it is not necessary that it should be signed by the parties, any writing, so long as it embodies the whole of the agreement, would be sufficient. Other provisions in the schedule also show that a written agreement is necessary. In order that earlier provisions of the schedule may be applied under paragraph. 19, it is necessary to see that they are consistent with the agreement filed under para. 17. On the other hand, where an award has been made out of Court, paras. 20 and 21 do not require that the agreement of reference to arbitration should itself have been in writing, and the award based even on an oral agreement of reference can be ordered to 'be filed. It therefore seems to be against the spirit of paras. 17 to 19 that an agreement of reference to arbitration, where nothing in writing is produced before the Court, should be ordered to be filed.
5. In the present case, the terms of the agreement were not wholly admitted by the defendant, and the Judge has merely remarked that the contents of it are mostly admitted by the parties, which implies that they are not admitted wholly. No copy, proved to have been the duplicate of the agreement, has been produced in this case; and it is therefore impossible to know the exact terms agreed to by the parties, particularly after a lapse of so many years. Apart from all this, the Court can order the agreement to be filed under para. 17 (4) only where no sufficient cause is shown to the contrary. It seems to us that where the original document is not forthcoming and its terms cannot be ascertained exactly, and therefore it would be impossible for the arbitrator to decide how to act, sufficient cause is shown for not ordering the agreement to be filed. On these grounds we allow the appeal and set aside the order of the Court below dismissing the application with costs in both Courts.