Kapur, J.:— This is a rule directed against an order passed by Mr. Parshotam Sarup, Subordinate Judge, Delhi, holding that the reference to arbitration was valid and the points raised before and decided by him should and could have been decided by the arbitrators and that any objections that the petitioner may have can be raised at the time of the objections to the award.
2. A car was insured by Piare Lal in April 1947 and it is alleged that it was stolen at Lahore in September 1947. A notice of this was sent to the Insurance Company on the 18th of March, 1948, but the Company repudiated its liability on the 26th of May, 1941, and then on the 3rd of July, 1948. Piare Lal gave notice claiming the amount of insurance on the 18th of July but again on the 1st of August, 1948, the Company repudiated the claim.
3. On the 21st of November, 1949, Piare Lal gave notice for reference to arbitration under clause 7 of the Conditions of the Policy. The Ruby General Insurance Company, Limited, the petitioners before me, did nothing effective till the 30th of December, 1949, when they filed an application under section 33 of the Arbitration Act alleging that reference to the arbitrator was illegal because of the lapse of twelve months as provided in clause 7 of the Conditions of the Policy and that the appointment of the arbitrator was illegal. They also asked for an injunction against the opposite party which was granted on the same day, but I have not been told when it was served on Piare Lal.
4. On the 31st of January, 1950, the Court refused to extend the operation of this injunction and discharged it. Again, the Company for ten days did nothing and on the 10th of February, 1950, they applied for and got an injunction against the arbitrator that he should not give his award, although he may continue with the proceedings.
5. The arbitrator had fixed the 14th of February, 1950, as the date for hearing. The proceedings were fixed for 12 o'clock, but the Company got him served with the order of the Court at 2 or 2-30 p.m on the 14th of February. I am informed that the award had been made round about 12 o'clock. It has not been explained to me why the Company was delaying the taking of any proceedings, which the law allowed it to take, for such a long time.
6. The only point for decision before me is whether in view of the wording of clause 7 of the Conditions of the Policy the arbitration agreement had come to an end. Clause 7 is as follows:—
“7. All differences arising out of this Policy shall be referred to the decision of any Arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single Arbitrator to the decision of two Arbitrators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or in case the Arbitrators do not agree of an Umpire appointed in writing by the Arbitrators before entering upon the reference. The Umpire shall sit with the Arbitrators and preside at their meetings and the making of an award shall be a condition precedent to any right of action against the Company. If the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calender months from the date of such disclaimer have been referred to arbitration under the provisions herein contained then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”
7. Reliance is placed by the learned Advocate for the petitioner on that part of this clause which says that if the Company disclaims its liability and the claim is not referred to arbitration within twelve months of such disclaimer then the claim shall be taken to have been abandoned. The opening words of this clause are, in my opinion, quite wide. “All differences arising out of this policy shall be referred to the decision of an arbitrator” are sufficiently wide to include the question of disclaimer and the rights of the parties to make a reference to arbitration. In Chandanmull Jhaleria v. Olive Mills Limited1, it was held by a Division Bench of the Calcutta High Court that an agreement which contained the words “any dispute relating to this contract “or” in relation to this contract” in the arbitration clause were sufficiently wide as to cover a dispute as to frustration of a contract or to its avoidance at a later date. The learned Judge there relied on Heyman v. Darwins Limited L.R 1942 A.C 356, where at page 366 Viscount Simon, L.C observed:—
“Ordinarily speaking, there seems no reason at all why a widely drawn arbitration clause should not embrace a dispute whether a party is discharged from future performance by frustration, whether the time for performance has already arrived or not.”
8. His Lordship continued and said:—
“I do not agree that an arbitration clause expressed in such terms as above ceases to have any possible application merely because the contract has ‘come to an end’, as, for example, by frustration. In such cases it is the performance of the contract that has come to an end.”
9. In my opinion, as I have said above, the words of this section are wide enough and must cover the point whether in the circumstances of this case the insured must be deemed to have abandoned his claim.
10. It was then submitted by the learned counsel for the petitioner that under section 33 it is for the Court to determine the existence or validity of an arbitration agreement or an award or to determine the effect of either. What the petitioner is trying to do in the present case is not to determine the legality of the agreement because he does not say that the agreement is illegal. What he says is that it has come to an end, but Page: 194according to the wording of the agreement that is also a matter within the contract and should therefore be determined by the arbitrator. In my opinion, the Court has rightly not interfered under section 33 of the Indian Arbitration Act and I would therefore dismiss this petition for revision and discharge the rule. The opposite party will have his costs in this Court and in the Court below.
11. Petition dismissed.