Coutts-Trotter, C.J:— This is an appeal from the decision of Waller, J., setting aside an award in favour of Mr. Martirosi in an arbitration between him and the firm of A.K.C.T Subramaniam Chettiar. This litigation has had a long history, but it is not necessary for me to allude to more than the main features of it. These parties entered into a contract and that contract contained an arbitration clause and in due course they quarrelled in the year after the agreement or less than a year after the agreement and that duly came before two arbitrators, Mr. Martandam for Subramaniam Chetti and Mr. Moca for Mr. Martirosi. They disagreed as one would expect and Mr. Vaz, a Barrister and a practitioner in this Court was appointed umpire. That was on 17th April 1924. The first award made by Mr. Vaz was set aside by Kumaraswami Sastri, J., on the ground that one party to the arbitration, A.K.C.T Subramaniam Chetti was not heard and he remitted it to Mr. Vaz to issue another award. Unfortunately that award which was promulgated on 2nd August 1925, was promulgated out of the time extended by Kumaraswami Sastri, J's order.

2. The umpire Mr. Vaz then asked for an extension of time. The learned Judge before whom it came, V.V Srinivasa Aiyangar, J. took the view that he had no jurisdiction to extend the time. The matter ultimately came before a Full Bench and they held—and it is binding on us of course—that there was jurisdiction to extend the time and we accordingly extended the time and the case was sent back; and in his first award on the extension, Mr. Vaz awarded Mr. Martirosi damages under two heads, Rs. 15,000 for what is now agreed was really damages for deceit and Rs. 5,000 as to which no question arises here. Beasley, J., held that the damages for deceit in the procuring of the contract and so forth was not within the submission to the arbitrators and set aside that part of the award but he remitted it to the umpire to find what, if any, damages were due to Mr. Martirosi on the footing, and strictly on the footing of a breach of the contract after it had been brought to birth. Mr. Vaz, purporting at any rate to base himself on that footing, gave Mr. Martirosi Rs. 15,000 as and for damages for breach of contract; and his award is before us. That award was objected to on the ground that it was had on the face of it and to that objection Waller, J., has given effect and has set aside the award and sent it back again. I am just going to read a few passages from Waller, J's., judgment and then I will go back to the award of Mr. Vaz and see how far in my judgment the actual award warrants the criticizm of the learned Judge. It is a feature that one cannot overlook that Mr. Vaz undoubtedly awarded exactly the same sum on the correct basis as he had awarded on the old and wrong basis of damages for deceit. The learned Judge cites a sentence from the award, and, taking it in isolation, no doubt it is capable, to say the least, of misconstruction and what the learned Judge says is this: He quotes the sentence to which I am going to refer and says:

“Moreover, what is the loss of profits referred to? Is it the loss of future profits for estimating which there were admittedly no materials? (I will come back to that in a moment) or is it the loss of profits which might have ensued had Martirosi not left the Indo-Italian firm. I have come to the conclusion that the award cannot be sustained. When damages are given for a breach of contract they must be estimated on some comprehensible basis. Here it is not dear on what basis they have been estimated. What, it seems to me, the arbitrator has done is to dress up in another form, not at all convincing from his previous award of exemplary damages founded on a quite different cause of action. As I have already stated I do not think I am disentitled from referring to the award, that is, the former award.”

3. I see no warrant in the present award for supposing that the umpire was not perfectly well aware that he proceeded before on a wrong basis and that he had a mandate from this Court to proceed thereafter on a different basis. Now I am coming to the award itself to see how far I think that these criticizms are justifiable. I will first read from the early part of the award:

“My conclusions are that Sivam failed (1) to supply the necessary capital; (2) to open a banking account which he was bound to do; (3) that he deprived Martirosi of the management of the business and assumed it himself; and (4) that he worked against the interests of the South Indian and Continental Trading Company (that is the matter with which we are concerned) and thus forced, a dissolution on Martirosi. There can be no question, therefore, that there was a breach of contract on the part of Sivam the was the agent of the respondent) for which his principal is responsible.”

4. I do not think anybody would have the hardihood to say that there was no ample material before the umpire on which he could come to that conclusion. He goes on:

“The next question is that damages Martirosi is entitled to for the breach of contract. Mr. Rajamanickkam contends that I ought to take the estimated profits for three years as the amount of damages to be awarded to Martirosi.”

5. Pausing there for a minute: that might have been right or that might have been wrong as a reasonable basis. But the learned umpire rejects it and he says this and it is this sentence which has given rise to the whole of this trouble:

“There are no materials before me from which to arrive at this estimate except the statements of Sivam and Martirosi, each claiming damages against the other of several thousands of rupees but in both cases on pure speculation without any details as to how those figures are arrived at.”

6. It must be remembered that what the umpire had to come to some conclusion about was not the ascertainment of special damages arising out of a contract which was over and done with. The breach being an anticipatory breach, he had to come to a conclusion as to what, had the breach not occurred, would have been likely to result to Martirosi in the way of profit. Everybody knows that neither a jury nor an arbitrator can expect to have exact materials on such a subject as that. But when I come to the portion of the award where the umpire says what his own procedure was, it seems to me quite clear that all that sentence means is this:

“I cannot pretend to get an exact figure. I do not accept either Sivam's or Martirosi's attempt to give an exact figure because the thing is not possible,”

and very wisely if I may say that, he was left to form a general impress ion as best as he could as to what was the probable and reasonable loss likely to result. What he says is this:

“I have come to the conclusion that, if the business of the South Indian and Continental Trading Company had been carried in compliance with the terms of the agreement, it would have been a profitable business.”

7. Why should he come to that conclusion? He gives a reason for it:

“That Sivam knew it to be so there can be no doubt as his attempt to snatch this business for the benefit of his own firm, the Madras Coal and General Agency, shows: and if there had been no breach of the contract with Martirosi, neither the severance with the Indo-Italian nor the time spent in working the South Indian, would have involved him in that loss. Sivam must have known that the necessary consequence of the breach of the contract would be loss of profits to Martirosi to at least the extent of the sum awarded by me.”

8. What does that mean? “I have got this” says the umpire:

“for certain that Sivam's conduct shows that he knew that this was a thoroughly valuable contract. I, therefore, think that, that being so and in the absence of any possibility not merely of any evidence but any possibility of any evidence tending to fix any figure with an exactitude, I shall not be giving any more than Mr. Martirosi must necessarily have lost by giving him Rs. 15,000.”

9. Why an arbitrator should not say that passes my comprehension. The very point of an arbitration of this kind is that you absolve the arbitrator from exact rules of evidence and rules of law and leave him as a business affair to make the best he can and that is what he has done. He is not a business man, it is quite true he is a gentleman practising at the Bar but he must know something about the conditions of trade in Madras and I have not the slightest doubt that during the course of the arbitration considerations of that general kind were put before him. In my opinion there is nothing to show that he misconducted himself in any way in the sense that his award is bad on the face of it. It seems to me a perfectly good award based on such material as was available and he might vary easily, I should have imagined, awarded a very much larger sum than he did on the new basis. In my opinion this appeal succeeds and the order of the learned Judge must be discharged.

Anantakrishna Ayyar, J.:— I agree, but as we are differing from the judgment of the learned Judge and as the subject-matter of the appeal is about Rs. 15,000, I think it right that I should state in my own words the reasons which induce me to hold that the learned Judge's view is not correct. In matters of arbitration (I speak with reference to the facts of the present case) it is clear that under Section 14 of the Arbitration Act, the award passed by an arbitrator or an umpire could not be set aside except for misconduct and what is legal misconduct which would justify the setting asside of an award by an arbitrator or an umpire is now settled. In the present case, unless we hold that an objection to the legality of the award is apparent on the face of it, this award could not be set aside by the Court.

10. The dispute between the parties was referred to two arbitrators who subsequently agreed in appointing an umpire. Mr. Vaz., the umpire, no doubt refers in his present award to his previous award. But, as I read his award, he refers to his previous award only to avoid the erroneous aspect from which he viewed the matter in the first instance. The three main questions that he had to decide were: (1) Was there a breach of contract by the defendant (2) Did the breach result in any loss to Mr. Martirosi, and (3) if so, what is the exact amount of damages? Reading this award, it is absolutely clear that his conclusions as regards the first point could not at all be impugned. In fact, as I understood the argument of the learned counsel for the respondent, I did not understand him to impugn the first finding, namely, that there was a breach of contract by the respondent. The learned umpire says:

“There can be no question, therefore, that there was a breach of contract on the part of Sivam for which his principal is responsible. Then he goes into the question of damages, but before finding what the exact amount of damages that should be awarded to Mr. Martirosi, is, he considers the question whether the breach of contract resulted in any loss to Martirosi. He says I have come to the conclusion that, if the business of the South Indian had been carried on in compliance with the terms of the agreement, it would have been profitable business.”

11. He mentions some reasons which induced him to come to that conclusion and finally, the exact question is answered by him that the result of the breach was that Martirosi lost a profitable business. The last question he had to decide was as regards the exact amount of damages that should be awarded. In considering that question the learned umpire refers to Section 73 of the Contract Act, which enacts, that in such cases the amount of damages to be awarded is that which naturally arose in the usual course of things to the plaintiff as the result of the breach of contract by the defendant. So far I am not able to see any law or any mistake of law, apparent on the face of the award which could be taken to have vitiated the award of the learned arbitrator. No doubt, as usually happens in such cases in this case also there was a lot of difficulty in assessing the exact amount of damages. If this matter had come to Court, I daresay the Court also would have experienced equal if not greater difficulty in assessing the exact amount of damages, but fortunately the umpire is, in this case, in a better position than the Court. He is not bound by the stringent provisions of the Evidence Act, because S. 1 of that Act says proceedings before an arbitrator are not governed by the Act. There is also the further fact that, having regard to the contingency that in case damages have to be assessed, materials may not be such as would be deemed satisfactory if the matter had to be decided by Courts of law, the parties, as I take it, wisely thought that this was preeminently a matter which should be settled by an umpire. The umpire has taken into account various considerations which were placed before him. He refers to the fact that if he entirely relied upon the statements of one side the amount of damages to be awarded would be very large and as he says, one side claimed several thousands of rupees. Having found that there was this breach and having also found that Martirosi had sustained damages, he would have been entirely within his rights if he had accepted the figures mentioned by the plaintiff and given damages accordingly. But he discussed the question more carefully and came, to the conclusion that the amount of Rs. 15,000 was the proper amount. No doubt it so happens that this was the exact amount at which he arrived in the prior award, approaching the question from another standpoint, but he now approached the question from a new and correct standpoint (the previous award not being binding on anybody and having been set aside). The exact nature of the jurisdiction of the Court with reference to awards passed by umpires was very clearly discussed before us. It is not the jurisdiction of a Court of appeal while reviewing the decision of an inferior Court. Having regard to the very limited jurisdiction which Courts have to review awards passed by arbitrators or umpires, I think that the award in this particular case could not be said to be legally unsustainable in the sense that objection to the legality of the award is apparent on the face of it. With all respect to the learned Judge, I think that the objections raised against the validity of the award are not maintainable and that this portion also of the award should be upheld. I agree in the order as to costs passed by the learned Chief Justice.

P.R.S/S.N

12. Order discharged.