P.B.SAWANT, J. - (1.) WE may now turn to the grounds of attack against the Award. The Award is assailed on two grounds, namely, the misconduct of the Arbitrators and the Umpire and the errors of law apparent on the face of the record. In support of the first ground viz., the misconduct, the petitioners contentions are fourfold. Firstly, it is contended that the Umpire actively participated in the arbitration proceedings and in fact dominated the same. Secondly, it is contended that the Arbitrators wrongfully rejected the application fro adjournment on two occasions when the applications were made to secure the presence of the Indian Counsel to argue law points arising under the Indian law. Thirdly, it is submitted that the refusal on the part of the Arbitrators as well as Umpire to state a special case and the refusal on the part of the Umpire to inform the parties that he was not stating a special case vitiated the award. The last contention was that the Umpire entered on the reference and closed the proceedings on claim 1 without hearing the parties further. This was in breach of the principles of natural justice and therefore the Award was void.
(2.) IN support of the first contention, the petitioners have in paragraph 3(ee) of the petition pointed out that the Umpire remained present throughout the hearings and not merely participated in them but also dominated the same. He was in fact, in general and overall control of the proceedings, acting as if he was the Chairman of the Board of Arbitrators. He put questions to the Counsel and witnesses and was also instrumental in dismissal of the application of the petitioners before the Arbitrators. According to the petitioners, the Umpire was in overall charge of the proceedings even before there was a difference of opinion between the Arbitrators. The petitioners further pointed out that although the parties consented to the Umpires presence and to his participation in the proceedings to the extent permitted by INdian law, the petitioners had never given an authority to the Umpire to enter upon the reference before the event. It is further their contention that seeing the attitude of the Umpire, the petitioners participated in the proceedings under protest and reservations. It is therefore claimed that proceedings were thus misconducted by the Arbitrators and the Umpire. IN their reply, the respondents pointed out that the Umpire sat in the proceedings and participated in the same with the consent of the parties and no objection was raised to it by the petitioners. It was clearly accepted by both the parties that it was perfectly proper and sensible for the Umpire to sit and participate in the proceedings to avoid unnecessary duplication of the time and expenses of a completely new hearing in the event the Arbitrators disagreed. The respondents also contended that it was a common practice for the Umpire to do so in commercial arbitration to save time and expenses. They submitted that during the proceedings, the Umpire had merely acted as the spokesman of the Arbitrators. The decisions were the decisions of the Arbitrators. No objection was ever taken by the petitioners to the Umpire acting as the spokesman of the Arbitrators. The petitioners in their rejoinder submitted that whilst it was correct that the petitioners did not object to the presence (sic) of the Umpire at the meetings it was wholly illegal and improper for the Umpire to have participated in the proceedings even before the Arbitrators had disagreed. They contended that the Umpire not only dominated the proceedings but also influenced the decision of the Arbitrators from stage to stage. The Petitioners also submitted that it was not correct to say that the Umpire was merely a spokesman of the Arbitrators. They contended that the Arbitrators communicated with the parties at the hearing through the Umpire and that he was generally in charge of the arbitration proceedings. IN support of their contention, the petitioners, pointed out various places at which according to them the Umpire during the conduct of the proceedings aired his views, gave directions, discussed matters and consulted with the Arbitrators and sought to influence them. The record undoubtedly shows that the Arbitrators asked questions both to the Counsel and the witnesses through the Umpire and/or the Umpire was asking the questions on their behalf. The record also indicates that the Arbitrators might have discussed matters with the Umpire or consulted with him. However, there is nothing on record to show that he had either influenced their decision in any manner or had given directions on his own. The decisions and directions, on the other hand, appear to be of the Arbitrators themselves. The facts on record show that both the parties had agreed to the procedure which was adopted in the proceedings before the Arbitrators. IN view of the said agreement, the Umpire not only remained present but also participated in the proceedings. Such procedure is further not unknown particularly to commercial arbitration. The parties often agree not only to the presence but also to the participation of the Umpire in the proceedings before the Arbitrators, to save both cost and time. This is to their mutual benefit. There is further nothing in the Act which prevents the parties from agreeing not only to such procedure but to any other procedure. It has to be remembered in this connection that the proceedings are for arbitrating the dispute and the Arbitrators and the parties are free to decide upon any procedure of their choice. This is exactly what happened in the present case and the following circumstances on record bear out the agreement between the parties on the procedure adopted :- (a) the directions given by the Arbitrators in their first meeting on March, 27, 1985 had in particular stated that all correspondence, pleadings, documents and communications of any kind by either party should be addressed to the two Arbitrators and the copies of the same should be sent to the Umpire; (b) in their meeting of June 10, 1985, the then Umpire Mr. Eckersley was also present alongwith the Arbitrators. It appears that before that date the Respondents had suggested that the Umpire should be act as a third Arbitrator. This suggestion was later withdrawn by the respondents. But at the same time it was agreed that the said Umpire or his successor will attend the arbitration proceedings in his capacity as the Umpire. What is noteworthy with regard to these proceedings is that in these proceedings two sessions of hearings were fixed, the first 30th July to 7th August, 1985 and second from September 18, 1985 to September 26, 1985. It appears that these dates were not suitable to Mr. Eckersley. But since it was agreed that the Umpire would attend the arbitration proceedings as Umpire, it was proposed to appoint another Umpire in his place who could remain present throughout the proceedings. There was no need to change the Umpire, if he was not to remain present in the proceedings. IN course of time Mr. lan Kinnell, the present Umpire was appointed, precisely because he could remain present in the proceedings. Hence at least the fact that the Umpire was to remain present in the proceedings cannot be disputed; (c) the proceedings of the first day, namely, of July 30, 1985 show that they opened with the Umpire remaining present along with the Arbitrators. It is the Umpire who opened the proceedings and Mr. Glennie, the Counsel appearing for the petitioners, began his speech with address to the Umpire. The entire proceedings further show that the requests and applications were addressed to the Arbitrators through the Umpire, and the Arbitrators were answering or disposing of the requests and application through the Umpire. The copies of the requests and applications, as decided earlier, were also sent to the Umpire alongwith the Arbitrators. But what is more noteworthy is that on the first day itself, a specific question was raised with regard to the precise role of the Umpire in the arbitration proceedings under the INdian Law, and the Arbitrators wanted to get that pointed resolved first before they could proceed with the arbitration. This question was resolved in favour of the Umpire taking part in the proceedings as the parties may agree. The precise questions and answers on the subject, as noted in para 24 of the proceedings, are as follows :--- THE UMPIRE: The first thing we must deal with this afternoon is to place as it were on the record the parties position as to my position in this reference. It is probably convenient for you Mr. Glennie to open the batting on that. Mr. GLENNIE: Yes, Sir, our position is that our INdian lawyers have spoken to Mr. Singhania, and his view as expressed to them is there is no such case preventing the parties agreeing that the Umpire sit and take such part as the parties agree he should take. On that basis we are content to give such consent as is required, and we are very happy to have you take part. All I can say is if that advice is wrong, and if it turns out that is the case, non of us here can do anything about it. (emphasis ours) After that, no further question was raised with regard to the participation of the Umpire in the proceedings. It is only after the parties agreed as above the proceedings went ahead and the first application for adjournment made on behalf of the petitioners was heard; (d) what is further from that day onwards not only the first session went on upto 2nd of August, 1985, but the second session which commenced more than a month and half thereafter, namely, on September 18, 1985 was also carried to the end of September 26, 1985 when the arbitration proceedings were closed. The proceedings went on from day to day in both the sessions. No objection at any stage was raised thereafter against the participation of the Umpire in the proceedings. On the other hand, the letter dated September 26, 1985 jointly addressed by the Solicitors of both the parties to the Arbitrators and the Umpire placed on record the formal consent of the parties to the extension of the Arbitrators time for making and publishing the Award, until November 30, 1985. The letter also stated as follows :--- "Furthermore, if the Arbitrators or the Umpire, as the case may be determine and award that the day rates set out in the said Drilling Agreement are not payable by the respondent (i.e. petitioners) to the claimant (i.e. Respondents) for the period of respondents hire............................................................................................................... then without prejudice to any jurisdiction which the Arbitrators or Umpire may have under Article 14 of the said Drilling Agreement and without prejudice to the rights of the parties to challenge such award, we hereby, on behalf of our respective clients, agree that the Arbitrators and Umpire shall have jurisdiction to determine the amount payable............................................and to make and publish an award of the sum so determined, together with interest and costs if appropriate." There is not a word in this letter nor is there any other letter to suggest that the proceedings which had ended were trained with stigma of the participation by the Umpire in the arbitration proceedings. The aforesaid circumstances make it more than clear that, firstly, the parties had agreed to the procedure whereunder the Umpire would participate in the proceedings. In fact, when the question arose whether under the Indian law an Umpire could participate in the proceedings in the manner he did, both the Arbitrators as well as the Umpire wanted to be clear on that point first before they could even consider the application for adjournment of the proceedings which was made on behalf of the petitioners. It is only after Mr. Glennie, the Counsel appearing for the petitioners pointed out that there was no law or authority preventing the participation of the Umpire and that not only the petitioners did not have any objection but they were happy to have the presence of the Umpire at the proceedings that the proceedings progressed further. At no stage in the proceedings thereafter any suggestion or objection was raised on behalf of the petitioners that the Umpire was either dominating the proceedings or that he was influencing the decision of the Arbitrators or that he was giving rulings for the Arbitrators. The proceedings also show that whenever the Umpire spoke or gave rulings on behalf of the Arbitrators he made it clear that he was doing as asked by the Arbitrators.
(3.) WE are therefore more than satisfied that the petitioners had consented not only to the presence of the Umpire but also to his participation in the proceeding as he did. It was with their consent that the proceedings had gone ahead and at no stage had they complained against the Umpires conduct either in or with respect to the said proceedings. Having thus allowed both the Arbitrators and the Umpire to act as they did without a word of protest, it is wrong on their part now to complain against the said agreed procedure when the Award has gone against them.;