Arun K. Mukherjea, J.
1. This is an application for a certificate under Article 133(1)(a) of the Constitution. The petitioner seeks to appeal to the Supreme Court against the judgment and order dated 2nd December, 1966 passed by a Division Bench by which an earlier judgment and order passed by Ray, J. on July 30, 1963 had been confirmed. The judgment from which the petitioner now seeks to appeal to the Supreme Court was delivered bv mvself.
2. The petitioner in his petition before Ray, J. asked for setting aside of an arbitration award made by the Bengal Chamber of Commerce and Industry. Ray. J. refused to do that whereupon the petitioner preferred an appeal to the Court of Appeal - which was also dismissed by G. K. Mitter. J. and myself. The judgment is therefore, a judgment of affirmance. There is no dispute between the parties that the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal was and still is not less than Rs. 20,000. The only question on which we have to be satisfied before we can issue a certificate is whether there is a substantial question of law
3. In Raghunath Prosad Singh v. Deputy Commissioner of Partabgarh. the Judicial Committee had held that the words 'substantial question of law' mean a substantial question of law as between the parties in the case involved. In Chunilal Mehta and Sons Ltd. v. Century Spinning and . : AIR1962SC1314 the Supreme Court discussed the effect not only of the judgment of the Privy Council in RaShunath Prosad's case but also several other judgments of different High Courts of India and supported the view taken by the Madras High Court in R. Subba Rao v. N. Veeraju : AIR1951Mad969 (FB). The proposition that was laid down in that case was this that
'when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law'
After expressing general agreement with this view Mudholkar, J. who delivered the judgment of the Supreme Court observed:
'The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it in of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law '
4. We have, therefore, to apply this test formulated by the Supreme Court to the facts and circumstances of this case and then decide whether it involves a substantial question of law
5. To appreciate the point that was made by Mr. R. C. Deb regarding the substantial question of law that is involved in this case it is not necessary to set out all the facts of the case elaborately. It would be enough if we indicate very briefly the circumstances in which the disputes between the parties arose and in which the award was made by the arbitrators.
6. Arising out of a coal-raising contract between the parties a dispute arose as to the dues of the respondent Ram Nagina Singh who referred the dispute to the Bengal Chamber of Commerce. In the statement of claim Ram Nagina Singh made out a case that he had a outstanding claim against the appellant. A schedule was annexed to the statement enumerating the details of the claim. The appellant denied the entire claim of Ram Nagina Singh in his counter-state. Ram Nagina Singb filed a rejoinder before the arbitrators in course of which he mentioned a few other items of this claims. The appellant filed a counter-rejoinder Then, at the suggestion of the arbitrators, both the parties submitted certain agreed statements regarding:
(a) tonnage of coal raised and despatched by the respondent between 1st October, 1955 and 30th June, 1960
(b) tonnage of soft coke manufactured and despatched by the respondent between 1st October 1955 and 30th June, 1960;
(c) moneys received by Ram Nagina Singh from the appellant between 1st October. 1935 and 30th June. I960;
(d) moneys paid by the appellants to various persons for and on account of the respondent: and
(e) payments made by the appellants for and on behalf of the respondent and disputed by him Thereafter the arbitrators held various meetings and made an award on October 3, 1962 directing the appellants to pay to the respondent a sum of Rs. 45,601.07 nP with interest thereon. The award was filed in Court in due course whereupon the appellant applied for setting aside the award.
7. One of the points that Mr. Bhabra argued before us in the Court of appeal was that the few items included by the respondent in his rejoinder really constituted separate disputes which arose the original dispute had been referred to the arbitrators. According to Mr. Bhabra and also according to Mr. R. C. Deb who appeared in support of the present petition, since the disputes arose after the arbitrators had been appointed these disputes were beyond the jurisdiction of the arbitrators and since the award apparently included an award also on these disputes the entire award has been vitiated by lack of jurisdiction and must be set aside. Both Mr. Bhabra and Mr. Deb relied on Rule 1 and Rule V(l) of the Bengal Chamber of Commerce Rules. Rule I defines 'Court' as follows:
' 'Court' means the Arbitrator or Arbitrators appointed for determining a particular dispute, or the Umpire where an Umpire has been appointed'. Rule V(l) reads as follows:
'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 accompanied by the requisite deposit against fees as provided in these rules 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'.
8. It was argued that under the Rules the Court is appointed for adjudicating a specific dispute and a dispute that arises after the constitution of the Court is beyond the jurisdiction of that Court.
9. The view that G. K. Mitter, J. and myself took in the Court of Appeal was that what was referred to the arbitrators was the dispute as to the state of accounts between the parties We dismissed the appellant's appeal on the view that the dispute covered the entirety of the respondent's outstanding claim against the appellant. According to the respondent there is a sum due to him while according to the appellant there is no sum due. We treated the schedule annexed to the statement of claim as a mere statement of particulars, a list of items. We saw no harm in the correction of any mistake in that list. We incidentally found that practically all the items which were subsequently shown in the respondent's reioinder were referable to claims that had already been included in the original 'statement' and 'counter statement' of the parties. Mr. Deb argued before us that whether the introduction of the additional items constituted a separate dispute or not was itself a substantial question of law. We could not persuade our-selves to accept this argument of Mr. Deb. Once we proceed on the basis that the dispute between the parties was the totality of the respondent's claim against the appellants, the only question that remains outstanding is whether the items of claim which were included later for consideration by the arbitrators fall within the scope of this totality. This is more or less a question of fact. As we have already said, both the earlier schedule of claims annexed to the original statement of claim and the later six claims aggregating Rs. 6.012.03 nP. were mere particulars of the respondent's claim against the appellants. In this connection we may refer to a statement contained in the counter reioinder submitted by the appellant before the arbitrators. It is to be found at page 225 of the paper book. The statement is in the following form:
'The applicant is not entitled to claim or to get remission of the said sum of Rupees 6,012/08 nP and the same are correctly and -legally charged and debited to the applicant in terms of argeement by the opposite party and incorporated into the statement of accounts annexed with the written statement. The opposite party incurred the said expenses of Rs. 6,012.03 nP. on account of the applicant and is entitled' to reimbursement and recovery of the said amount in terms of the agreement'
The expression 'opposite party' in the above statement refers to the appellants. The appellants were contending that in adjudicating upon the claims of the respondent the arbitrators should allow remission of the sum of Rs. 6,012.08 nP. in favour of the appellants on account of certain charges and debits made by the appellants against the respondent. This itself shows that the real question was clearly one of settling the accounts between the parties. Without settlement of these accounts the claim of the respondent against the appellants could never be determined. Therefore, it cannot be contended that these subsequent items did not fall within the scope of the original dispute or that they constitute a dispute which arose later after the appointment of the arbitrators.
10. Mr. Deb relied on the case of Mathuradas Goverdhandas v. Khusiram Benarshilal. 53 Cal WN 873. One of the points that arose in that case was as to whether there had been any valid reference to arbitration. The main claim referred to the arbitrator was on account of damage on the basis of difference between the contract rate and market rate prevailing on October 31, 1946. The tribunal of arbitration set up to adludicate upon the claim had however, been constituted long before October, 1946, i.e. at a point of time when the cause of action should not have arisen. A Division Bench presided over by Harries, C. J. held in that case that in order to make out the jurisdiction of the tribunal of arbitration the appellants must show that the subject matter of the reference was some dispute between the parties and that the particular dispute had arisen actually before the matter went before the arbitrators. The claim for Rs. 14,000 made in that case arose long after the tribunal of arbitration had been set up and their Lordships held that the dispute which was actually adjudicated upon by the tribunal did not exist prior to the appointment of the arbitrators. I am afraid the case of Mathuradas has no application to the facts of this case. In that case the entire claim that was put up before the tribunal of arbitration came into existence after the Tribunal had been appointed prior to the actual reference the claimant had submitted two bills and the claim that was at first referred was the claim made in those two bills. Later on the claimant wanted to alter the basis of claim so that he made what can only be described as a complete change in the cause of action. This change in the cause of action implied that the arbitrators who had been appointed to decide * particular cause of action were subsequently called upon to decide another cause of action. This at once led to lack of authority -and jurisdiction in the arbitrators
11. In the present case, on the other hand, what was actually referred to the arbitrator? was the entirety of the claims of the respondent against the appellants on the coal raising contracts. There was no change in the cause of action at any stage. The case of Mathuradass has, therefore, absolutely no application to the facts of this case
12. We have no doubt that there is no substantial question of law involved in this appeal. The principles that had to be applied are well settled and the real inquiry Was as to a question of fact viz. whether certain items of claims were part of the respondent's outstanding dues from the appellants.
13. In this view of the matter we order as follows: The application is dismissed with costs. Interim orders are vacated.
14. I agree.