S.N.Kapoor,J. - (1.) The petitioner challenges an opinion given by the Sub- Judge, 1st Class on a reference from the Arbitrators that they could proceed with the reference.
(2.) Arbitrators moved an application under Section 13(b) read with Section 41 and Section 28 of the Arbitration Act, 1940 (hereinafter called the Act for short) for opinion. The facts giving an occasion to the said application are : Mr. V.K. Agnihotri and Mr. Jai Prasad Aggarwal, two Advocates were appointed as Arbitrators by the two parties. Mr. P.L. Vohra, Advocate was appointed Umpire on 12.12.73. The Arbitrators entered on the reference. Four months lapsed. Thereafter, the petitioner informed the Arbitrators that they had become 'functus officio' and the petitioner also requested Mr. P.L. Vohra, Umpire to enter on the reference since time for making the award had expired. 2.1. On receipt of that letter thereafter the Arbitrator moved an application on the ground that there was no delay on the part of the Arbitrators alongwith the record to the Court seeking an opinion in respect of following two questions : "(i) Can the authority of the appointed Arbitrator be removed without the leave of the Court merely because the time for making the award has expired (ii) Should be Arbitrators cease to act and hand over the proceedings to the Umpire, merely because the time for making the award has expired and none of the parties has applied for extension of time, and also because the Umpire or one party has asked for the file to be sent to the Umpire although there is no difference of opinion amongst the Arbitrators. 2.1. The Court gave following' impugned opinion: "In this case, one of the parties disagree with the Arbitrators and not the Arbitrators are in dis-agreement. The matter can be referred to the Arbitrator when there is difference of opinion between them. But merely by passing the time will not take away the jurisdiction of the applicants, provided the party has applied for extension of time. In my opinion, the respondent No. 1 has not shown anything under para four of schedule which takes away the jurisdiction of the applicant. I, therefore, opine that the Arbitrators have not become functus officio. They can act and conduct proceedings as there is no disagreement between the Arbitrators."
(3.) The learned Counsel assailed this impugned opinion of the Court on the ground that in Hari ShankarLal v. Shambhu Nath, AIR 1962 S.C. 78, Supreme Court has held that: "12. In the present case, the notice was given long after the expiry of four months from the date when the Arbitrators entered on the reference and, therefore, they could no longer act pursuant to the notice calling upon them to act. The proper course should have been to apply to the Court for extension of time under Section 28 of the Act....";