JUDGMENT

(Delivered by The Chief Justice.)

The appellant and the two respondents formerly carried on a business in partnership under the name of Bhagyalakshmi and Company. Disputes arose between them which were referred to the arbitration of three named arbitrators by an agreement in writing between the parties dated January 4th, 1945. The agreement, inter alia, provides that (1) in case P. Govindaswami Chetti (one of the arbitrators) declined to act, the appellant should be at liberty to nominate another arbitrator in his place; (2) in case two of the arbitrators declined to act, the whole arbitration should come to an end and the parties be relegated to their prior rights; a decision of the majority of the arbitrators should be the decision which must prevail in all matters connected with the arbitration; (3) the arbitration should be completed within one month from the date of the agreement subject to an extension of time, not exceeding six weeks thereafter, being taken if all the three arbitrators passed a resolution to that effect.

No resolution was passed by the three arbitrators extending the time during which they could conclude the arbitration and make their award. The one month's period expired on February 4th, 1945, by which date no award had been made. Subsequently the three arbitrators examined the partnership accounts. This examination was completed by February the 27th. Thereafter P. Govindaswami Chetti declined to act further as an arbitrator, but the appellant did not appoint another arbitrator in his place pursuant to his power or right to do so given by the agreement.

Later on March 15th, 1945, the remaining two arbitrators addressed a communication, which later was called a letter, to the first respondent and to the appellant. None of the parties requested the signatory arbitrators to file this document in Court and no other steps were taken in that behalf and it has not been filed in Court as an award as provided in the Arbitration Act.

The document states that the two signatory arbitrators give “the following decision”. It recites that a copy of the account ascertained by the three arbitrators, dated February 27th, 1945, had been given to the first respondent (who acted on his own behalf and on that of the second respondent) and an unsigned copy to the appellant; thereafter Govindaswami Chetti did not associate with the other two arbitrators in further proceedings; the document then states that the arbitrators “decide the following matters mentioned herein finally in accordance with our joint opinion.” Then follows their conclusions regarding the subject of their arbitration.

On April 23rd, 1945, the same two arbitrators wrote to the respondents that they had ascertained that their letter, dated March 15th, addressed to the respondents as well as to the appellant was served upon him (the appellant) also through post several days back and he had not chosen to send a reply or to use the arbitrators in that connection and they refused to act as arbitrators for such people, the letter concludes that they would do nothing more in the arbitration matter and the respondents were at liberty to take such proceedings in Court as they liked: the arbitrators declined to act.

On May 25th, 1945, the respondents instituted against the appellant a suit claiming dissolution of the partnership and the customary consequential relief in a suit of that nature. In his written statement the appellant pleaded that the respondents had induced him to consent to the arbitration and had procured an award which would be rejected by the Court on the face of it as illegal and invalid and further that the respondents had lost their right to institute the suit, which was barred, by reason of the arbitration ending in an award.

On February the 25th, 1946, the respondents made an application under S. 33 of the Arbitration Act to the Court for a declaration that there is no valid award in existence and no subsisting arbitration agreement. In his affidavit in reply the appellant states that the period of one month prescribed in the arbitration agreement for an award to be made was extended as provided therein and the majority of the arbitrators gave their decision on March 15th, 1945 and he denies that no valid award is in existence. He asserts that its validity cannot be questioned by proceedings under S. 33 of the Act and alleges that the proceedings are defective on account of the absence of the award being filed with the petition. Clearly the appellant has asserted that the document dated March 15th, 1945, is an award under the Arbitration Act.

The application came before Clark, J. At the hearing before him the document dated March 15th was placed before the Court and the learned Judge held that it was not an award and rejected the appellant's contention that he had no jurisdiction to entertain its validity or otherwise on the ground that it had not been filed in Court. This is the appellant's appeal against the learned judge's decision.

In my opinion, the learned Judge was perfectly correct in the conclusion to which he arrived.

Firstly, if the document dated March 15th, 1945, is an award, it was made more than one month after the date of the arbitration agreement and after the period which the agreement prescribes for the award to be made. There was no resolution by the arbitrators pursuant to the provision in the agreement by which they, apparently, were authorised to extend the time by six weeks, making ten weeks in all from January the 4th; that circumstance alone vitiates the award and makes it a nullity. Assuming, however, that such a resolution, which the arbitration agreement prescribes, was passed, nevertheless, the award is not one which has any validity or legality. S. 28(2) of the Arbitration Act enacts that any provision in an arbitration agreement, whereby the the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect. There was no agreement by all the parties for the arbitrators to extend the time by passing the resolution envisaged in the arbitration agreement. Consequently, the time could not be legally enlarged and the period during which the arbitrators could make an award expired about six weeks before the document of March the 15th came into existence. Even if that document is an award, it is one which has no validity and is not, in law, an award.

Secondly, the document of March 15th, in my view, was never intended to be, and never in fact was, an award. It sets out what is expressed to be a decision of two out of three arbitrators on the conclusions to which they had arrived. The original was sent to the respondents and a copy, apparently, was forwarded to the appellant, but he refused to accept the document or the envelope in which it was contained. Arbitrators do not send to one party the original award and to another party a copy. They intimate to both parties that their award has been made. It is then for the parties, pursuant to S. 14 of the Arbitration Act, to request the award to be filed or the Court directs that course to be taken. Looking at the document, in my view, it was merely nothing more than the parties being notified the conclusions to which the two remaining arbitrators had arrived and it was not intended to be the award formally required of them under the Act. This view is confirmed and supported by the letter which the arbitrators wrote to the respondents alone on April 23rd, 1945, to which reference has previously been made.

Thirdly, the arbitration agreement referred the matters in dispute to three named arbitrators. One of them withdrew after a partial disposal of the business which all would be called upon to carry out. The remaining two arbitrators completed the disposal of the remaining business and then wrote their letter dated March 15th. The subject-matter of the arbitration did not receive the united attention of all the arbitrators. Whilst the agreement provides that the decision of the majority of the arbitrators shall prevail, nevertheless, the law requires, and it is well established, that all the arbitrators must give their united consideration to all matters arising in the arbitration which has been referred to them. This well established principle of law is discussed and explained in Patel Bros. v. Sree Meenakshi Mills Ltd. (1), by Chagla, J., at page 565 of the report. The learned Judge's view and conclusion were upheld by an appellate Bench of the Bombay High Court a report of which is included after the judgment of Chagla, J. In that case the Court of first instance and the appellate Court each held that an award was a nullity when one of nine arbitrators himself absented after proceedings in arbitration commenced and before the conclusion. The decision of the appellate Bench of the Bombay High Court proceeded to the Judicial Committee and the judgment of their Lordships of the Privy Council is to be found under the name of Sree Meenakshi Mills, Ltd. v. Patel Bros. (2). When the matter reached the Judicial Committee, it was assumed that the award of the 8 out of 9 arbitrators was a nullity and the question was not argued and no judgment was given with regard to whether it was a nullity or not. But, at pages 473 and 474, the Board observed as follows:

“Should the same question arise for decision hereafter it will be necessary to consider whether the well established principle that, in the case of a reference to two or more named arbitrators, all the arbitrators must act together, can properly be applied when the reference is not to individuals but to a body, such as a committee or a Board, whose corporate powers are regulated by its constitution.”

From the observations of the Judicial Committee it would seem that the well established principle was not one which could be disputed. The only question which might arise was whether that principle could be extended to arbitrators not named personally but as members of some body. With respect I agree with the judgments given by the learned Judge of first instance and the appellate Bench of Bombay. In my opinion, since the document of May the 15th, 1945, was a decision, which it purports to be, arrived at after a consideration of the whole matter by two and not by all the arbitrators to whom the matters in dispute had been referred, even if that document otherwise might have been an award, since the three arbitrators did not together consider the matters in arbitration throughout, the award by two of them is not one which can stand, in spite of the provision in the arbitration agreement in this case that the majority view should prevail.

Fourthly, the argument that the application before Clark, J., was defective because no award was filed with the application is based upon the contention with reference to S. 14 of the Arbitration Act. That section requires the award to be signed and to be filed in Court by the arbitrators at the request of the parties or at the direction of the Court. S. 15 empowers the Court to modify an award, S. 16 to remit the award back to the arbitrators, and S. 17 to pass judgment in terms of the award; and S. 30 specifies the grounds upon which an award can be set aside. The sections to which reference has been made, in my view, have to be read together. It is quite clear, and there is no need to refer to the decisions of the several High Courts in this country, as well as in England, that, the Court cannot pass judgment upon an award or set it aside or remit it back to be modified by the arbitrators unless the award has been filed in Court. The application before Clark, J., was under S. 33 of the Act which enables an application to be made challenging the very existence of an award. If no award has ever existed, how can it be said that the award must be filed in Court? It is difficult to follow the argument of learned Counsel for the appellant who strenuously and repeatedly maintained that no application lies under S. 33 unless the applicant files with his application the award which has been made. In my opinion, when an application to the Court is presented which challenges the existence of an award, no award need, or can, be filed in such an application. At the hearing before Clark, J., the document of March 15th was produced, but that was to enable him to examine it and to arrive at a conclusion whether it was an award or not. Since it was not an award, clearly it was not required to be filed when the petition was presented in which the application was made.

In my opinion, for reasons given above, this appeal must be dismissed with costs.

Rajamannar, J:—I agree.

N.R.R