Bachawat, J.:— This is an application to declare that the arbitration agreements and the awards are void, illegal and inoperative and for setting aside the awards.

2. By two separate contracts dated the 12th August, 1953 the petitioner agreed to purchase blankets from the respondent I have looked at the original contracts which are in Hindi and I accept the official transition to be correct. Each of the contracts contained the following arbitration clause:

“If there arise any dispute or trouble regarding this contract, then the same shall be decided by the Arbitration Board of the Blanket and Shawl Traders' Association or by the arbitrators appointed by the buyer and by the seller, one (by) each both of whom shall be senior traders, (and such decision) shall be accepted by both persons—(buyer and seller), and the said decision shall be deemed as the final decision.”

3. Part of the goods were delivered. The respondent claims the balance of the price of goods sold and delivered. The petitioner counter-claims for damages for not delivering the balance goods. The respondent appointed Shri Kara Nath Bagaria as his arbitrator and by notice dated the 16th February, 1954, requested the petitioner to appoint his arbitrator. The notice was received by the petitioner on the 17th February, 1954. Fourteen clear days expired from the date of the service of the notice, but the petitioner did not appoint his arbitrator and did not send any reply. On the 5th March, 1954, the respondent appointed Ram Nath Bagaria as sole arbitrator and gave notice of the appointment to the petitioner. The petitioner did not send any protest nor any reply to this letter By notice, dated the 19th April, 1954, the arbitrator enclosed the statement of the respondent and asked the petitioner to submit his statement within 7 days. This notice was received by the petitioner on the 20th April 1954. The petitioner did not file any statement and did not send any reply. By notice, dated the 5th May, 1954, to the petitioner the arbitrator appointed the 10th May, 1954, 3-30 P.M for hearing the notice was received by the petitioner on the 10th May, 1954. The petitioner did not appear at the hearing of the arbitration on the 10th May, 1954. On the 19th May, 1954, the arbitrator made an ex parte award against the petitioner.

4. The objections to the award are summarised in paragraphs 5 and 6 of the petition.

5. Objections under paragraph 6: Grounds (e) and (f) of this paragraph have been abandoned by learned counsel for the petitioner. The petitioner charges that there was no opportunity or reasonable opportunity to flie a statement or to put forward its defence or to place relevant facts, (b) that no notice or reasonable notice of the hearing on the 10th May, 1954, was given and (c) that the arbitrator proceeded ex parte without sufficient cause.

6. The following issues were raised:—

1. Did the petitioner receive the letter dated 19th April, 1954, referred to in paragraph 6 of the affidavit-in-opposition?

2. Did the arbitrator give no opportunity and|or reasonable opportunity to the petitioner to file any statement and|or put forward any defence before the arbitrators as alleged in paragraph 6(a) of the petition?

3. Did the arbitrator give no notice or reasonable notice of the hearing of the case before him on the 10th of May, 1954, or on any other date or at all as alleged in paragaph 6(b) of the petition?

7. These Issues were tried on oral evidence.

8. Issue No. 1: Clearly the issue must be answered in the affirmative.

9. Issue No. 2: The petitioner received the notice dated the 19th April, 1954, and had full opportunity to file statement and to put forward its defence and to place relevant facts before the arbitrator and the issue is answered in the negative.

10. Issue No. 3: The notice dated the 5th May, 1954, was served on the petitioner on the 10th May, 1954. The notice was issued in Calcutta and was served in Calcutta. The delay, of 5 days in the course of transmission of the notice is somewhat curious. The original cover has not been produced by the petitioner. The notice was received by Raghunath on the 10th of May, 1954. The hearing of the arbitration was fixed at 3.30 P.M on that date. Raghunath has given evidence. He does not say that the notice was unreasonable or that after receipt of the notice he could not attend the meeting. The petitioner has not proved that the notice was unreasonable. The issue is answered in the negative.

11. The arbitrator was justified in proceeding ex parte. The petitioner did not file any statement and did not attend the meeting inspite of notice. The petitioner did not intend to appear before the arbitrator.

12. The objections raised in paragraph 6 of the petition are rejected.

13. Objections under paragraph & of the petition: Clauses (c) and (d) of the paragraph have been abandoned by learned counsel for the petitioner. The remaining objections may he summarised thus:

(a) The arbitration agreements are uncertain as they provide for alternative Board of Arbitrators without specifying under what circumstances reference is to be made to one or the ether Board of Arbitrators;

(b) in any event the reference could not be made to one set of Arbitrators without the consent of both parties;

(c) in any event the reference could not be made to the second set of Arbitrators without exhausting the first alternative.

14. The respondent disputes these contentions and also pleads waiver and estoppel.

15. The following constructions of the expression, “The Arbitration Board of the Blanket and Shawl Traders' Association or by the Arbitrators appointed by the buyer and by the seller one by each” in the Arbitration agreements may be suggested:

(a) The word “or” is substitution al and appends a secondary alternative after a primary alternative, and the expression means “by the Arbitration Board of the Blanket and Shawl Association and failing them by two Arbitrators, one to be appointed by each party”. See Dwarkadas v. Daluram Yoganmull (1) (54 C.W.N 844, 568).

(b) The expression provides for a panel of Arbitration Tribunals, and the reference is to a Tribunal to be selected out of the panel by the consent of the parties.

(c) The word “or” provides for alternatives and the expression means “either the Arbitration Board of the Blanket and Shawl Traders' Association or the Arbitration Tribunal consisting of the Arbitrators appointed by the buyer and by the seller, one by each.”

16. Mr. Meyer on behalf of the respondent expressly repudiated the first two of the suggested constructions. It is clear that the respondent fails in this application if either of the first two constructions are adopted. The Arbitration Board of the Blanket and Shawl Traders' Association was never asked to arbitrate and cannot be said to have failed to act as Arbitrators It is also clear that the Arbitration Tribunal consisting of two Arbitrators to be appointed by each party was not selected with the consent of both parties. The selection was a unilateral act of the respondent.

17. Mr. Meyer, therefore, bases his client's case entirely on the footing that the third construction is the correct construction and he argues that the Arbitration clause provides for reference of the disputes to either the Arbitration Board of the Blanket and Shawl Traders' Association which I will call Tribunal ‘X’ or by the Arbitration Tribunal consisting of two Arbitrators, one to be appointed by each party which I will call Tribunal ‘Y’

18. If this construction is, accepted, the Arbitration agreements do not say under what circumstances the reference is to be made to ‘X’ Tribunal and under what circumstances the reference is to be made to the ‘Y’ Tribunal, and it cannot be said with certainty whether ‘X’ Tribunal or ‘Y’ Tribunal is the appointed Arbitrator.

19. Under this argument prima facie the Arbitration agreements are uncertain.

20. Mr. Meyer contends that the uncertainty is curable by election.

21. I agree that uncertainty in certain cases may be cured by election, e.g, in the case of a grant by giving a right of election to the party, who is to do, the first act towards completion of the grant Halsbury, Vol. X, Art 349-50, pp. 281-82; and in the case of alternative promises by giving the right of election to the party who is to perform the promise— Halsbury, Vol. VII, Art. 461, p. 331 and Art. 267, pp. 189-90. It has also been held that where there are several legatees to whom the option is given—e.g where there is a bequest of one house each to the nephews and the nieces of the testator in the event of disagreement between them the choice may be determined by lot, Re. Knapton, Knapton v. Hindle (2) [(1941) 1 Ch. 428] Reference may also be made to Stroud's Judicial Dictionary, 3rd Edition, p. 2008, Norton on Deeds, 2nd Edition, pp. 109413. Jarman on Wills, 8th Edition, Volume I, p. 477, and British Empire Digest, Vol. XVII, pp. 359-61.

22. An uncertainty is not curable by election in all cases. It is not curable by election where there is nothing to indicate, who is to have the option. Thus a gift either to A or to B is uncertain where the gift is not substitutional — Jarman on Wills, 8th Edition, pp. 493-95. And a contract of sale for either Rs. 500 or Rs. 1,000 also is uncertain— Illustration (f) to section 29 of the Indian Contract Act.

23. An arbitration agreement between A and B to refer disputes to the Arbitration of ‘X’ or at the option of A to ‘Y’ is certain because the agreement itself shows, who is to have the option— Bhowanidas Ramgobind v. Harsukh das Balkissendas (3) (27 C.W.N 933); and Sundarmull v. Tribhubandas Hirachand (4) (I.L.R 51 Cal. 657),

24. The arbitration agreements in this ease do not indicate who is to have the option.

25. Mr. Meyer contends: that he, who is to make the reference-first is to have the option. I am unable to agree with the contention.

26. Either party may commence the arbitration and may require that the disputes be referred and settled by arbitration. The arbitration agreements do not require that one of the parties rather than the other is to commence the arbitration or to do the first act in making the reference There is nothing to indicate in the arbitration agreements that one of the parties has the option of determining the arbitration Tribunal to whom the reference is to be made.

27. Mr. Meyer contends that the disputes may be referred to either Tribunal X or Tribunal Y just as a suit may sometimes be instituted in either Court ‘X’ or Court ‘Y’.. This analogy is fallacious. Where two Courts have concurrent jurisdiction, the plaintiff has a choice of forum and may institute his suit in either Court. But there is no election in the sense that the choice of Courts is finally determined and the other Court is deprived of its jurisdiction. Either party may still institute a suit in the other Court which retains its concurrent, jurisdiction. Under an Arbitration agreement two Arbitration Tribunals cannot have concurrent jurisdiction over the identical subject matter at the same time. An Arbitration agreement is an agreement that the disputes shall be settled by an Arbitrator named or designated in the agreement or by an Arbitrator appointed in accordance with the Arbitration agreement An agreement to refer either to ‘X’ or to ‘Y’ is not an agreement to a named Arbitrator because it is not certain, who the Arbitrator is ‘X’ does not become the appointed Arbitrator because one of the parties makes the reference to him first. The agreement does not authorise one of the parties to appoint either ‘X’ or ‘Y’ as Arbitrator by making a reference to him.

28. Mr. Meyer then contends that the choice may be determined by lot on the analogy of Roman Law and on the analogy of Re, Knapton Knapton v. Hindle, (2) [(1941) 1 Ch. 428]. Assuming that the principle of Roman Law applies to Arbitration agreements the choice must be determined by lot before the Arbitration is commenced. The respondent made the reference to one set of Arbitrators before the choice was determined by lot. The Arbitration Tribunal throughout had no authority to make the award and the award is invalid. Even if the lot is cast now and even if the Arbitration Tribunal which made the award is now chosen by lot the award cannot be validated retrospectively.

29. The petitioner did not participate in the Arbitration proceedings at all and did not do anything from which waiver may be implied or upon which estoppel may be founded. The petitioner is not barred from taking the objection either by way of waiver or estoppel.

30. From whatever point of view the matter is locked at Ramnath Bagaria had no authority to make the award, and the award is invalid.

31. The Arbitration agreement is uncertain if the construction put forward by Mr. Meyer is accepted.

32. I must not be supposed to say, however that I hold that the agreements are uncertain. The agreements are not uncertain if either of the first two constructions are adopted. Those instructions have been expressly repudiated by Mr. Meyer and as I have said already If either of those constructions are adopted on the facts of this case the respondent cannot succeed.

33. Fart of the objections in this case was tried on evidence, and the petitioner has failed to succeed on those objections. Looking at all the circumstances of this ease, it is just that each party should be directed to pay and bear his own costs.

34. I pass the following order:

35. I adjudge and declare that the award is invalid, and I set aside the award.

36. Each party will pay and bear his own costs of the application.

Solicitors: B.K Mukherjee for the Petitioner; G. Bagaria, & Co., for the Respondent.

A.K.D.G