Desai, C.J. - (1.) THE following question has been referred to this Bench by our brothers Jagdish Sahai and Mithan Lal:" Whether an application under Section 20 of the Indian Arbitration Act can be made in a case like the present one where the arbitrator had started to function and had entered upon the reference but at a later stage could not proceed with the same?" A conflict among decisions dealing with this question necessitated this reference to a Full Bench". THE parties to this appeal are brothers and had disputes regarding partition of joint property. On 9-12-1955 they entered into an agreement to refer the question of partition of all their joint property to the sole arbitration of Sri Baij Nath Prasad. No time was fixed for his making an award and, therefore, under Section 3 of the Arbitration Act (which will henceforth be referred to as the Act) Clause 3 of the 1st Schedule attached to the Act applied and the arbitrator had to make his award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court might allow. THE agreement was filed with the arbitrator and he entered upon and proceeded with the reference, but the appellant non-co-operated and the arbitrator thought that, he could not make an award. On 7-11-1958 the appellant filed a suit for partition of the joint property in the Court of the Civil Judge, Bahraich. THEreupon an application under Section 20 of the Act giving rise to this appeal was presented in the Court of the Civil Judge, Malihabad, by the respondent with the prayer that the agreement be filed in Court, that on order of reference to the arbitrator Sri Baij Nath Prasad be made and that on the award to be given by him a decree should be passed. THE application was opposed by the appellant, who pleaded that he had signed the agreement, under pre-sure, that the agreement became null and void because no award was made within four months, that the arbitrator was in collusion with the respondent, that the application was barred by time, that it was not maintainable because the arbitrator had already proceeded with the reference and that the agreement was not the one contemplated by Section 20. THE appellant's allegations were denied by the respondent in his replication and he asserted that the arbitrator had nearly completed the proceeding and could make an award within a fortnight. He admitted that the appellant had filed a suit and contended that he had applied under Section 34 of the Act for its stay. On 17-12-1958 the Court (e. g., that of Civil Judge, Malihabad) ordered the arbitrator to file the agreement and other papers in Court, which he did. THE respondent's application under Section 34 was rejected by the Civil Judge, Bahraich, and his order is under appeal in this Court. THE application under Section 20 was allowed by the Court and this appeal is preferred from its order. It seems that an award has been made by the arbitrator and its operation has been stayed by this Court during the pendency of the appeal.
(2.) SECTION 20, so far as is relevant, reads as follows: "( 1) Where any persons have entered into an arbitration agreement ............ and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court ............... that the agreement be filed in Court. (2) .................................... (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement ......... requiring them to show cause ......... why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties .................. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act ,.............." Chapter II deals with arbitration without intervention of a Court. Section 14 of it provides that where the arbitrator has made his award he shall sign it and give notice to the parties of the making and signing thereof, that he shall at the request of any party or on being directed by the Court cause the award or a signed copy of it to be filed in Court and that the Court will then give notice of the filing to the parties. Section 15 provides that the Court may modify or correct the award, Section 16, that it may remit it and Section 17, that when it sections no cause to remit it or to set it aside it will pronounce judgment according to it and a decree upon the judgment. An award can be set aside only on the grounds specified in Section 30 and Section 33 empowers any party to apply to the Court to decide the question of existence or validity of an award. Section 8 (1) (b) lays down that if the arbitrator "neglects or refuses to act ......... and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties ............ do not supply the vacancy", any party may serve the other party with a written notice to concur in the appointment in supplying the vacancy. Section 8 (2) provides that if the appointment is not made within fifteen days, the Court may on the party's application appoint an arbitrator to fill the vacancy. Then there is Section 11 under which the Court may on a party's application remove the arbitrator on the ground that he has failed to use all reasonable dispatch "in entering on and proceeding with the reference''. Where the Court removes the sole arbitrator it may under Section 12 on a party's application appoint another person to act as sole arbitrator or order the agreement to have ceased to be effective. There is no provision in Chapter II governing a sole arbitrator's inability to make an award on account of a party's non-co-operating with him; it seems to me that when he does not make an award on this ground it is a, case of his neglecting or refusing to aqt within the meaning of Section 8 (1) or of failing to use all reasonable dispatch in proceeding with the reference within the meaning of Section 11 and the Court may, on a party's application, appoint another arbitrator in his place. It is difficult to understand what the arbitrator in this case meant by saying that he was unable to make an award on account of the appellant's non-co-operating with him. There was no difficulty in his making an ex parte award. He could always make an award on the basis of evidence and materials supplied to him by the respondent; it would be the appellant's fault if he did not rebut the evidence produced by the respondent and supply his own materials and evidence. The arbitrator's jurisdiction to make an award did not at all depend upon co-operation by both the parties. When the arbitrator did not make an award, even though he could make it, it could be said that he neglected or refused to make it and action could have been taken under Section 8. It may be said that Section 11 applies when the failure is to use all reasonable dispatch in entering on and proceeding with the reference and not when it is to use all reasonable dispatch in only proceeding with the reference. The word used in Section 11 (1) is "and" and net "or" but "and" can be used in the sense of "or". The provision may mean that an arbitrator who fails to use all reasonable dispatch in entering on the reference or in proceeding with the reference can be removed, i. e., the failure in respect of entering on the reference or of proceeding with the reference justifies removal. It would be like "who fails to use ............ entering on the reference and who fails to use ......... proceeding with the refer ence may be removed." The legislature could not have meant that the failure must be in respect of both entering on and proceeding with; failure in regard to either would be enough. In this case there might not have been failure in respect of the entering on the reference but there was failure in respect of the proceeding with the reference and the arbitrator could be removed under Section 11.
(3.) AN application under Section 20 (1) has to be for the agreement being filed in Court and the cause of action for making it accrues when a difference to which the agreement applies has arisen. On the agreement being filed the Court has to order the difference to be referred to the arbitrator. These provisions show that an application under Section 20 (1) has to be made before the arbitrator has entered upon the reference. If ha has already entered upon the reference there would be no necessity of the Court's ordering the difference to be referred to him; nothing more would be achieved by the simple fact that the Court has ordered the difference to be referred to him. What he can do after such an order can be done by him even without such an order. Such an order would be necessary only if he has not entered upon the reference. If he has already entered upon the reference but neglects or refuses to proceed further or fails to use all reasonable dispatch in proceeding with the reference be can be removed under Section 8 (1) or under Section 11 (1). I do not think that the words "instead of proceeding under Chapter II" necessarily indicate that the arbitrator has not entered upon the reference. There are some proceedings in Chapter II which apply even after the arbitrator has entered upon the reference, for instance those under Section 8 (2), Section 11 (1) and (2) and Section 12 (1). The words in italics themselves suggest that Section 20 (1) contemplates a case in which a proceeding can be taken under Chapter II, and do not support the contention that Chapter II applies when the arbitrator has entered upon the reference and Chapter III, when he has not.;