BANERJEE, J. - (1.) THIS is an application for leave of the Court to revoke the authority of an arbitrator. The petitioner also challenged the existence of the arbitration agreement and prayed for Court's decision on the question. This prayer, however, has been abandoned by Counsel.
(2.) IN this application the only point I have to consider is whether I should grant the leave. The Court has power to grant leave if it thinks fit. Section 5, Arbitration Act is as follows: 'The authority Of an appointed arbitrator.....shall not be'revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement.' This section corresponds to Section 5 of the Indian Arbitration Act, 1899, & Section 1, English Arbitration Act of 1889. Section 5 read: 'A submission, unless a different intention is expressed therein, shall be irrevocable except, by leave of the Court.' The English section was also in the same words in substance. Referring to the English section Bowen, L.J. said, 'In Re. Smith and Service and Nelson and Sons', (1890) 25 Q. B. D. 545 at p. 553: 'The language of Section 1, 'a submission shall be irrevocable' is ambiguous; it is applicable, not to the agreement to refer but to the authority of the arbitrator.' In 'Doleman v. Ossett Corporation, (1912) 3 K.B. 257, at p. 270, Pletcher -Moulton, L.J., said: - 'By common law a submission to a particular arbitrator was revocable at the will of either party, unless it had been made a rule of Court, in which case the leave of the Court must be previously obtained. But this was of the nature of a rescission. Such a revocation involved the breach of no contract, & gave rise to no right of damages. It was merely an exercise of a legal power to revoke which was implied in a submission. On the other hand (as was pointed out by Bowen, L.J., in 'Re. Smith & Service & Nelson & Sons'), an arbitration clause could no more be revoked than could any other clause of a contract. Like any other contractual obligation it could be broken, & thereby a claim to damages would arise. But there was no right to rescind such a contract or contractual obligation. Section 1, Arbitration Act, 1889, relates merely to the right to revoke a submission.'
(3.) LORD Esher, in 'Re. Smith and Service and Nelson and Sons' said, at p. 550: 'The phrase is used which had always been used, 'a submission shall be irrevocable'; that is to say the power of the arbitrator cannot be revoked when he has once been appointed. It does not mean that the agreement to refer is irrevocable, because that always was in the true sense of the word irrevocable.' A distinction has been made in England between 'agreement to refer' & 'submission.' This distinction has been maintained in our Act of 1940. Section 13(2)(b) provides: 'Where the authority of an arbitrator is revoked ........the Court may, on the application of any party to the arbitration agreement, order that the arbitration agreement shall cease to have effect with respect to, the difference referred.';