KESHAVSINH DWARKADAS KAPADIA Vs. INDIAN ENGINEERING COMPANY

JUDGEMENT

(1.) These two appeals are by special leave against the judgment dated 17 October, 1968 of the High Court at Bombay determining under Section 33 of the Arbitration Act that the umpire rightly entered upon the reference and further extending the time till 31 December 1968 for making an award thereof by the umpire.

(2.) Two questions arise for consideration in these appeals. First whether there can be any valid appointment of umpire by arbitrators without obtaining consent of the appointee to be an umpire. Second, on the construction of the arbitration agreement in the present case was the operation of paragraph 4 of Schedule I of the Arbitration Act excluded with the result that the umpire could enter upon the reference only in the event of a difference arising between the arbitrators.

(3.) On 26 April, 1967 there was an arbitration agreement between the partnership firm of Indian Engineering Company and Keshavsinh Dwarkadas Kapadia. Kapadia had appointed M/s. Chetan Trading Company as the sole selling agent of Kapadia's several products including aluminium and copper wires by an agreement dated 16 September, 1965. Chetan Trading Company in their turn appointed Indian Engineering Company as their sole selling agent in respect of aluminum and copper wires. Chetan Trading Company terminated their agreement with Indian Engineering Company. Kapadia also terminated the sole selling agency with Chetan Trading Company. Indian Engineering Company contended that on the termination of the sole selling agency between themselves and Chetan Trading Company. Indian Engineering Company became the sole selling agent of Kapadia in terms of the agreement dated 16 September, 1965. Indian Engineering Company claimed damages against Kapadia for breach of the agreement. Kapadia claimed damages and moneys from Indian Engineering Company. Disputes arose between the parties. These disputes were referred to arbitration in accordance with the agreement dated 26 April, 1967. There was a similar arbitration agreement between Chetan Trading Company and Indian Engineering Company on 5 June, 1967 in respect of their disputes and claims against each other. The arbitration agreement and the arbitrators were identical in both the cases.