Sinha, J. - (1.) THIS is an appeal against an order of Datta J. dated the 13th December 1963. The facts arc shortly as follows: One Dhanonjoy Kundu was the absolute owner of premises No. 59, Simla Street, Calcutta. He installed a deity in the said premises called Sri Sri Sitalamata. On the 9th July, 1950 he executed a deed of settlement whereby he conveyed and assigned the said premises and a sum of Rs. 500 to trustees, upon certain terms. At the relevant time, the two appellants and the respondent had been acting as trustees. In the deed of settlement, there were various clauses, including Clause 12 which runs as follows: "12. After the death of the first Trustee Dhanonjoy Kundu, if any dispute or difference arise between the subsequent Trustees who would act under these present concerning the management or administration of the trust hereby created according to the tenor of these present or relating to or affecting the sheba of the Deity in the manner hereby directed then in such case such dispute or difference shall be referred to the sole arbitration of Sri Kamal Kishor Khettry, Solicitor of No. 6, Old Post Office Street, Calcutta, so long as he is alive and is available and is willing to act. If the said Sri Kamal Kishor Khettry be not alive or is not available or is unwilling or incapable to act, such dispute shall be referred to me arbitration of Arbitrators one to be appointed by each Trustee who shall proceed in accordance with the provisions of the Arbitration Act 1940 or any statutory modification thereof."
(2.) TWO of the trustees, being the appellants before us, considered that a dispute had arisen between the trustees and they referred the matter to the arbitrator in terms of Clause 12. The respondent did not concur in it. The arbitrator gave an award. The respondent received a notice dated 14th June 1963 to the effect that judgment will be passed on the 24th July 1963 in terms of the award filed in this Court on 22nd April, 1963. On or about the 16th July, 1963 the respondent made an application to the court for a declaration that there was no arbitration agreement between the parties, for a declaration that the purported award passed by the arbitrator, Kamal Kishor Khettry, filed on 12th June, 1963 was invalid, improperly procured and void, that the said award should be set aside and for such further or other orders as the Court may find fit and proper. This matter came up before the Court below and the learned Judge has held that there was no arbitration agreement between the parties and he has set aside the award. It is against this order that this appeal has been preferred. The position is as follows: Section 2(a) of the Arbitration Act is in the following terms: "In this Act, unless there is anything repugnant in the subject or context; (a) 'arbitration agreement' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." In order to constitute an "agreement" it is not disputed that we must refer to the provisions of the Indian Contract Act. Section 2 of the said Act defines a 'proposal', a 'promise' and ultimately an 'agreement'. The relevant provisions of Section 2 of the said Act are set out below: "(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other of such act or abstinence he is said to make a proposal. (b) When the person to whom the proposal is made signifies his assent thereto the proposal is said to be accepted. A proposal, when accepted, becomes a promise. (c) The person making the proposal is called the promisor and the person accepting the proposal is called the promisee. (d) When at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promisee: (e) Every promise and every set of promises, forming the consideration for each other, is an agreement."
(3.) MR. Basak appearing on behalf of the appellants argues that in this case there is an arbitration agreement between the parties. I have therefore asked him to specify the particulars of that agreement and he has given the following particulars: 1. Parties to the arbitration agreement. The two appellants and the respondent. 2. Date of the agreement. Between the death of the settlor in November, 1952 and the date of the letter dated 17th August, 1962, being annexure 'B' to the petition (page 10 of the Paper Book). Cannot specify the date more particularly. 3. Is the agreement in writing? Yes. 4. Identify the written agreement. The written agreement is the arbitration clause in the deed of settlement of 1950. See annexure to the affidavit-in-opposition at page 22 of the Paper Book. This was accepted by the parties by their conduct.;