1. This is an application to declare void and set aside the Award of the Bengal Chamber of Commerce. The dispute relates to a contract dated 30-11-1951, which contains the usual arbitration clause for reference of the disputes under the contract to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration. The respondent referred the disputes relating to the contract to the arbitration of the Bengal Chamber of Commerce. The relevant rules of the Tribunal of Arbitration are as follows:
'V. (1) In every case where a dispute or difference has arisen between parties who have agreed that such dispute or difference shall be referred for decision to the Chamber or the Tribunal, an application for arbitration may be addressed by either party to the Registrar which application, In the case of disputes relating to piece-goods shall be in such form as the Committee of the Chamber may from time to time prescribe. (2) On receipt of such application, the Registrar shall constitute a Court for the adjudication of the dispute.
VII. If the Court have allowed the time or extended time to expire without making any award, and without having signified to the Registrar that they cannot agree, the Registrar shall constitute in manner aforesaid another Court which shall proceed with the arbitration and shall be at liberty to act upon the record of the proceedings as then existing. and on the evidence, if any, then taken in the arbitration or to commence the arbitration 'de novo'.
X. If any appointed arbitrator or umpire neglects or refuses to act, or dies or becomes .incapable of acting, the Registrar 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'.
XXV. The Court shall make its. award In writing within four months after entering on the reference or on or before any later day to which the Court, with the consent of all parties concerned in the proceedings, by any writing signed by them, may from time to time, enlarge its time therefor or any extension of time granted, by the Court of Judicature at Fort William in Bengal.'
2. On 6-6-1952, the Registrar acting under Rule 5 constituted a Court consisting of Mr. J. I. Jamieson and Mr. I. D. C. Buist. On the same day this Court entered on the reference. The time of this Court to make the award expired on 6-10-1952. Still correspondence between the parties and the Registrar of the Chamber under the directions of this' Court went on until July, 1953. Mr. Buist then proceeded on leave and the Registrar on 4-8-1953 appointed Mr. H.A. Luke in place of Mr. Buist under R. 10.
3. The endorsements on the appointment-sheet are as follows:
'I propose to appoint Messrs. J. I. Jamieson and I. D. C. Buist as arbitrators, and will be glad to know if you have any suggestions to offer.
Sd/- D. O. Fairbairne.
Court appointed as above.
Sd/- D. C. Fairbairne. Registrar.
Mr. Buist having proceeded on leave, I appoint) Mr. H.A. Luke in his place under Rule 10.
Sd/- D. C. Fairbairne. Registrar.
4. On 8-10-53 the Court consisting of Mr. Jamieson and Mr. Luke made the award.
5. In my opinion, when Mr. Jamieson and Mr. Buist allowed the time to expire, the Registrar, under the rules, became bound to appoint and substitute new arbitrators In their place.
6. If we look at Rule 7, the Registrar became bound to constitute another Court. It is clear from, several decisions of this Court that if the first Court consists of A and B, the Second Court constituted' under Rule 7 cannot consist of A and B. I am also of the opinion that such second Court cannot consist of C a new arbitrator and either A or B. The Registrar must appoint persons other than A and B as arbitrators in place of A and B. The observations of Das Gupta J. in -- 'Ramnath Narendranath v. Nanjee Shamjee & Co.', : AIR1953Cal787 support this conclusion.
7. We come to the same conclusion if we look at R. 10. Under that rule, if any appointed arbitrator neglects to act the Registrar must substitute' and appoint a new arbitrator. The word 'any' means one or more out of several and includes all. See -- 'Jokhiram Kaya v. Ganshamdas Kedarnath', AIR 1921 Cal 244 at p. 246 (B). Where there are two arbitrators and both of them neglect to act the Registrar must substitute and appoint new arbitrators in their place. The arbitrators neglect to act if they allow the time to make their award to expire and do not make their award. 'Willoughby V. Willoughby', (1847) 16 LJ QB 251 (C); --Narendra Nath v. Brojeswari Dasi', AIR 1914 Cal 448 (D). They neglect to act though the time expires through no fault of theirs. Neglect in this context do not imply any degree of blame. Under Rule 10 also the Registrar must substitute and appoint new arbitrators in place of the arbitrators who allowed the time to expire and therefore neglected to act.
8. Both under Rules 7 and 10 the Registrar was bound to appoint new arbitrators in place of Mr. Jamieson and Mr. Buist when they allowed the lime to expire.
9. The Registrar did not appoint a new arbitrator in place of Mr. Jamieson.
10. The Court consisting of Mr. Jamieson and Mr. Luke had no authority to make the award. The ward is therefore invalid.
11. The petitioner urged certain other contentions in support of this application. By consent the point with regard to the constitution of the Court has been tried first without prejudice to the other contentions raised by the parties in the pleadings.
12. I pass the following order:
I adjudge and declare that the award No. 1086 Of 1953, being case No. 407 of 1952 of the Bengal Chamber of Commerce and Industry, is null and void on the sole ground that the Court which made the award was defectively constituted and had no authority to make the award. This order is without prejudice to the other contentions raised by the parties in this application.
13. The respondent must pay the petitioner the cost of this application.