S.R.Das Gupta, J. - (1.) THIS is an application under S. 33 of the Arbitration Act for an order declaring the award No. 1347 of 1952 made by the Bengal Chamber of Commerce and Industry, Tribunal of Arbitration, to be null and void, alternatively for an order setting aside the said award.
(2.) THE principal ground taken in support of this application is that the second Court constituted by the Registrar, Bengal Chamber of Commerce under Rule 7 of the Rules of the Tribunal of Arbitration, Bengal Chamber of Commerce, had no jurisdiction to make the award. In other words, it is contended that the Registrar, Bengal Chamber of Commerce, in constituting the second Court under Rule 7 of the Rules of the Tribunal of Arbitration, Bengal Chamber of Commerce, cannot appoint the same persons who constituted the first Court but must appoint different persons, different from the persons who constituted the first Court, to determine the dispute which has been referred to the Bengal Chamber of Commerce. In this case, it is said that, the persons who constituted the second Court were the same persons who constituted the first Court and therefore such constitution is void and contrary to the provisions of Rule 7 of the said rules and the arbitrators so constituted had no jurisdiction to make the award. Previously in a number of applications I have already held that if the Registrar appoints the same persons who constituted the first Court as members also of the second Court, then such appointment is invalid and the arbitrators who constituted the second Court would have no jurisdiction to make the award and on that ground I have set aside a number of awards. The point which is now agitated before me on behalf of the respondent to this application is, that although the arbitrators as constituting the second Court had no jurisdiction to make the award, they had jurisdiction to make the award as constituting the first Court and under Rule 25 of the Rules of the Tribunal of Arbitration this Court has power to extend the time for making the award. This Court, it is also contended, has the power to extend the time to make the award under Section 28 of the Arbitration Act and this Court can so extend even after the award is made. In other words, it is urged before me on behalf of the respondent that the arbitrators who constituted the first Court no doubt neglected to make their award within the time specified in Rule 7, but this Court has the power to extend the said time and although the said arbitrators have already made their award, this Court can under Section 28 of the Arbitration Act extend the time even after the award is made. Therefore the respondent prayed before me that I should exercise my discretion and extend the time for the arbitrators constituting the first Court to make their award.
(3.) MR. Roy appearing on behalf of the respondent urged two points before me in support of his client's case. In the first place, he contended that this Court should grant an extension of time for the arbitrators to make their award. His second contention is that Rule 7 of the Rules of Tribunal of the Arbitration is ultra vires being in conflict with the provisions of Sub-section 2 of Section 28 of the Arbitration Act. In order to appreciate the contentions of the respective parties made before me on this application it would be necessary to set out some of the provisions of the Rules of the Tribunal of Arbitration, Bengal Chamber of Commerce as also of the Arbitration Act. The provisions of the rules of the Tribunal of Arbitration, Bengal Chamber of Commerce which are material for the present purpose are as follows: 'Rule 1, Sub-rule 2' "Court" means the Arbitrator or Arbitrators appointed for determining a particular dispute, or the umpire where an umpire has been appointed. 'Rule V(1)' "In every case where a dispute or difference has arisen between parties who have agreed that such dispute or difference shall be referred for decision to the Chamber or the Tribunal, an application for arbitration may be addressed by either party to the Registrar which application, in the case of disputes relating to piece-goods shall be in such form as the Committee of the Chamber may from time to time prescribe." (2) "On receipt of such application, the Registrar shall constitute a Court for the adjudication of the dispute." (3) "In constituting any Court the Registrar shall select, as arbitrator or arbitrators or umpire as the case may be, so far as possible, persons or a person having a practical knowledge of the subject-matter of the contract or contracts in question, and the Registrar shall not appoint any person who for any reason within his knowledge would not be a proper person to act as arbitrator or umpire in the particular matter, but no award shall be invalid nor shall any objection be taken thereto by any party, on the ground that any person so appointed did not possess such practical knowledge, or was not in fact a proper person to act as arbitrator or umpire." VI "Unless, the agreement to refer the dispute or difference to the Chamber or Tribunal otherwise expressly provides the Court shall consist of two arbitrators, who shall be selected by the Registrar from the Tribunal and appointed in writing under his hand." VII "If the Court have allowed the time or extended time to expire without making any award, and without having signified to the Registrar that they cannot agree, the Registrar shall constitute in manner aforesaid another Court which shall proceed with the arbitration and shall be at liberty to act upon the record of the proceedings as then existed and on the evidence, if any, then taken in the arbitration or to commence the arbitration de novo." XXV "The Court shall make its award in writing within four months after entering on the reference or on or before any later day to which the Court, with the consent of all parties concerned in the proceedings, by any writing signed by them, may from time to time, enlarge its time therefor or any extension of time granted by the Court of Judicature at Fort William in Bengal.";