1. This is an application to set aside and declare null and void an award of an Arbitration Tribunal of the Bengal Chamber of Commerce consisting of Messrs. A. W. Mathers and G. M. Gay. The contention is that Mr. Mathers and Mr. Gay were not duly appointed as arbitrators by the Registrar of the Bengal Chamber of Commerce.
2. The dispute relates to a contract which contains an arbitration clause. The arbitration clause provides that the reference shall be to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and that according to such rules the arbitration shall be conducted.
3. The buyers duly applied for arbitration in accordance with Rule V(1) of the rules of the Tribunal of Arbitration. Under Rule V on receipt of such application the Registrar of the Chamber is enjoined to select and to constitute a Tribunal for the adjudication of the dispute.
4. Rule VI which provides for appointment of arbitrators reads as follows:
'VI. Unless the agreement to refer the dispute or difference to the Chamber or Tribunal otherwise expressly provides the Court shall consist of two arbitrators, who shall be selected by the Registrar from the Tribunal and appointed in writing under his hand.'
5. Learned counsel on both sides have also referred to Rules 1(6), IV, VI, VIII and IX. These rules are as follows:
'16. 'Registrar' -- The Registrar of the Tribunal shall be the Secretary for the time being of the Chamber or such other member of the Secretarial staff of the Chamber as shall be acting from time to time.
IV. 'The duties of the Registrar of the Tribunal shall ordinarily consist of or include the following:
He shall, by himself or his subordinates, receive applications to the Tribunal and receive payment of fees and costs, appoint the arbitrator or arbitrators and, where necessary, the umpire who will constitute the Court to deal with any dipute, receive all applications made to the Court by the parties, and communicate to them the orders and directions of the Court, keep a register of applications to the Tribunal and of awards made by any Court, and such other books and memoranda, and make such returns as the Chamber or the Tribunal shall from time to time require, and generally carry out the directions of any Court so constituted, and take such steps as may be necessary to assist any such Court in the execution of its functions.
VI. Unless the agreement to refer the dispute or difference to the Chamber or Tribunal otherwise expressly provides the Court shall consist of two arbitrators, who shall be selected by the Regtstrar from the Tribunal and appointed in writing under his hand.
VIII. In the event of the Court originally appointed disagreeing the dispute shall be referred to an umpire and the Registrar shall appoint an umpire to be selected from the list aforesaid to constitute the Court for the adjudication of the said dispute and such umpire shall then proceed with the arbitration in accordance with these rules.
IX. The consent to act of the arbitrator of arbitrators or umpire as the case may be shall be obtained by the Registrar.'
6. Mr. J.J.B. Sutherland since deceased was, the Registrar of the Bengal Chamber of Commerce at the relevant point of time.
7. Rule VI provides for a special method of appointment of arbitrators and that method must be adhered to in appointing the arbitrators.
8. I am satisfied that Mr. Sutherland duly selected Messrs. Mathers and Gay as Arbitrators. The question still is whether Mr. Sutherland duly appointed Messrs. Mathers and Gay as arbitrators in Writing under his hand.
9. Exhibit Al is a proposal to appoint Messrs, Mathers and Gay. This proposal is signed by Mr. Sutherland and reads as follows:--
'I propose to appoint Messrs. A. W. Mathers and G. M. Gay as Arbitrators, and will be glad to know if you have any suggestions to offer.'
At the foot of this exhibit the names of Mr. I.G. Kennedy and Mr. H.L. Robertson appear. They are the persons from whom suggestions had been invited by Mr. Sutherland. These gentlemen had no suggestions to give in the matter. Exhibit A1 came back after circulation and in the usual course of business the appointment of Messrs. Mathers and Gay as Arbitrators should have been endorsed on this exhibit but this was omitted by inadvertence.
10. On 26-11-1952, Mr. B. B. Roy acting on behalf of the Registrar wrote to Messrs, Mathers and Gay as follows :---
'THE BENGAL CHAMBER OF COMMERCE AND INDUSTRY, TRIBUNAL OF ARBITRATION
No. 52356 & 57C Royal ExchangeCalcutta-1, 26th Nov. 1952. General Arbitrations
A. W. Mathers Esqr., Messrs. Kettlewell Bullen & Co. Ltd.,
Case No. 818-G of 1952
G. M. Gay, Esqr.,
I shall feel obliged if you will act as an Arbitrator in a dispute under contract No. 34682, dated 3rd September, 1951.
Mr. G. M. Gay,
of Messrs. J. Thomas & Co.,
is being asked to act with you.
If you are agreeable to act, please date, sign,and return the enclosed form at an early date.
Enclosure; Form. Yours faithfully,Sd/- B. B. Roy
11. On 27-11-1952, both Messrs. Matters andGay wrote back and each of them stated--
'I am agreeable to act as Arbitrator in the disputereferred to in your letter No. 52357C, dated26-11-52.'
12. On 10-12-1952 Mr. B. B. Roy acting on behalf of the Registrar wrote to Messrs, Mathers andGay as follows :--
'THE BENGAL CHAMBER OF COMMERCE AND INDUSTRY, TRIBUNAL OF ARBITRATION.
No. 54273 & 74C Royal ExchangeCalcutta, 10-12-52. General Arbitrations
A. W. Mathers, Esq.,
G. M. Gay,
Re: Case No. 818G of 1952
With reference to my letter No. 525562 of 26-11-52 and your reply of 27-11-52 I have to inform you that you and Mr. G. M. Gay of Messrs. J. Thomas & Co., are constituted as the Court to adjudicate on the dispute in question.
Sd/- B. B. Roy
13. These several documents regarded as one transaction constitute an appointment of the arbitrators in writing under the hand of the Registrar arid satisfy the requirements of Rule VI,
14. In -- 'Reuss v. Picksley', (1866) 1 Ex 342 (A), it was held that a proposal in writing, signed by the party to be charged, and accepted by parol by the party to whom it is made, is a sufficient memorandum or note of an agreement to satisfy the 4th section of the Statute of Frauds which require a memorandum or note of the agreement in writing by the party to be charged therewith or his agent. Willes J. in delivering the judgment of the Court of Exchequer Chamber observed thus at p. 351 :
'The proposal so signed and assented to, does become a memorandum or note of an agreement within the 4th section of the Statute. Many cases might be put in illustration of this proposition, but one or two will he sufficient. Take for example a case arising under the Joint Stock Companies Act (19 and 20, Vict. C. 47), whereby it is provided that no person shall be deemed to have accepted any share in the company unless he testifies his acceptance by writing under his hand (Schedule Table B). It was at first supposed that something must be done by the share-holder in writing after allotment and that otherwise he would not be a share-holder because he proposed in writing to become one and to accept his shares upon allotment. But the Court of Common Pleas, when the case was brought before them, said that it was a mistake to suppose that under these circumstances there was no acceptance in writing. The true mode, they said, of regarding such a transaction was that it was from beginning to end one transaction, and accordingly they held that the acceptance was complete, and the Statute satisfied by a proposal in writing to accept the shares, followed by allotment.'
15. By parity of reasoning the proposal to appoint Messrs. Mathers and Gay as arbitrators made in writing under the hand of the Registrar followed by acceptance of the proposal at the request of the Registrar and the consent of the Arbitrators to act as such is a 'sufficient appointment of Messrs. Mathers and Gay in writing under the hand of the Registrar.
16. It is not necessary to consider if the appointment is validly made under the rules of the Tribunal of Arbitration on other grounds.
17. The application is dismissed with costs.