Gangadhar Gourisankar vs Bissessarlal Kanhaiyalal

Chakravartti, C.J.—The principal question involved in this appeal has already been decided by this Court, but the appeal is nonetheless of importance, because in this case the previous decision of the Court has been sought to be distinguished by the learned Judge. It has to be seen whether the ground upor which he made the distinction is a valid ground.

The Appellant was the seller under a contract for the sale oi 1,500 mds. of mustard oilcake Papari Expellor Pure Taza at the rate of Rs. 8-5 per maund. The Respondent was the buyer. The contract was entered into on September 8, 1952 and delivery of the goods was to be given in that month and October following. The contract contained an arbitration clause expressed in the following words:

If any dispute arise between contract the both parties liable to accept the arbitration of the Indian Chamber of Commerce, Calcutta.

In November, 1952, the Appellant delivered 482 mds. and 35 srs. of oilcake and although the time for delivery as stipulated for in the contract, had already expired, the Respondent accepted delivery of the goods. It also made a payment of Rs. 3,400 towards the price. On the very next day, however, the Respondent addressed a letter to the Appellant and enclosed therewith a bill Rs. 508-13 which, it said, the Appellant was liable to pay on account of difference of price in respect of the balance of the goods not delivered. The Appellant repudiated the claim and in its turn demanded payment of a sum of Rs. 593-14-6 which was the balance of the price of the goods the Respondent had already received. The Respondent replied by saying that the Appellant could have only Rs. 85-1-6, which would be the balance after deducting the amount of difference claimed by it from the balance of price of the goods delivered. Neither party would concede the claim of the other and in that state of the relations between them, the Appellant filed a suit in the Court of Small Causes for the recovery of the amount it was claiming. On September 14, 1954, a consent decree was passed by the Small Cause Court for the amount claimed together with interest.

In November, 1954, the Respondent referred its claim for the difference to the arbitration of the Indian Chamber of Commerce. It claimed an amount of Rs. 508-13-0 on the basis that, in October, 1952, the price of oilcake had increased to Rs. 8-13 per maund. The Appellant disclaimed liability and stated that the price of oilcake in October, 1952, bad never risen to Rs. 8-13 per maund, as alleged by the Respondent but bad, on the other hand, fallen below Rs. 8-4 per maund. Having thus denied that it was liable to pay any difference to the Respondent, the Appellant made a claim of its own and asked for an award in its favour for the loss suffered by reason of the Respondent not accepting delivery of the remainder of the goods. I have omitted to mention that, at the stage of the correspondence, the Appellant had told the Respondent that the remainder of the goods was due to arrive within a short time and that, in fact, it was in possession of the relative bill of lading and that the Respondent was bound to accept delivery of the goods when they arrived, because the understanding between the parties was that the goods would be delivered after they had been received from Assam. It was on the basis of that case that the Appellant asked from the arbitrators an award in its favour. It said that it had been compelled to sell the remainder of the goods at Rs. 6-4 per maund. The Appellant''s statement was filed in December, 1954 and it appears that in February, 1955, the Respondent filed a further statement in which it reiterated its case that the market rate for oilcake in October, 1952, was Rs. 8-13 per maund on or about the date of the alleged breach of the contract.

On February 5, 1955, the Respondent deposited an amount of Rs. 748-2 in satisfaction of the decree obtained by the Appellant. The claim for the balance of the price of the goods already delivered, which had also been mentioned in the Appellant''s written statement, thus disappeared. What remained were the Respondent''s claim for a difference and the Appellant''s claim for damages.

On April 14, 1955, the Registrar of the Indian Chamber of Commerce addressed to the Appellant a notice whereby he informed it that a meeting of the Court of Arbitrators would be held on April 20, following. The notice was in the following terms:

A meeting of the Court of Arbitrators will be held on Wednesday, April 20, 1955, at 11 a. at the premises of the Chamber at 23-B Netaji Subhas Road, Calcutta, to adjudicate upon the above dispute. I am directed by the arbitrators to request you to appear before them at the said meeting with whatever evidence you have in connection with the dispute.

On April 20, the arbitration was held and the arbitrators made an award on May 4 following. By their award, they directed the Appellant to pay the Respondent a sum of Rs. 508-13 in full settlement of the dispute with interest at six per cent, per annum running from May 31, following, no interest being payable for the earlier period.

The arbitrators admittedly did not hear either of the parties. What happened on April 20, 1955, so far as the Appellant is concerned, is a matter of dispute between the parties. The Appellant''s case is that in compliance with the notice, dated April 14, 1955, two of its representatives had duly presented themselves at the office of the Indian Chamber of Commerce and had their appearance noted by a gentleman, called Roy, but although the Appellant firm had been asked to appear with evidence and its representatives had evidence with them which they wished to produce, they were not called in by the arbitrators, but, on the other hand, were told by the officer that no evidence would be heard. According to the Appellant, on receiving that intimation, its representatives came away, but on the very same day, one of them addressed a letter to the Registrar in which he placed on record the fact that they had presented themselves at the office of the Chamber at the appointed time with evidence, but had not been called in to produce it. Along with the letter they enclosed what they described as the original bill from a firm, called Ram Chandra Sewduttray, with whom the Respondent had made a settlement of some oilcake at the rate of Rs. 8-3-7 per maund in the very month of October, 1952. The Registrar replied to the letter on May 2, 1955 and said that the Appellant''s representatives had not appeared before the Tribunal at the appointed time, but had called after the arbitrators had disposed of the case on the basis of the records before them. He returned the bill which had been enclosed by the Appellant''s representative with his letter.

In February, 1956, the award was filed in Court and in due course a notice u/s 14(2) of the Arbitration Act was served upon the Appellant. On March 7, following, the Appellant made an application for setting aside the ward. By an order, dated April 25, 1956, P. B. Mukharji, J., dismissed the application with costs. It is against that order rthat the present appeal has been preferred.

Two points were urged before P.B. Mukharji, J., on behalf of the Appellant and those very points were urged again before us. It was contended in the first instance that there was no arbitration agreement at all, because the so-called arbitration clause in the contract did not constitute an agreement. P.B. Mukharji, J., agreed with the Appellant that the arbitration clause was defective "both linguistically as well as grammatically," but he thought that the reference to the Indian Chamber of Commerce could be supported without the aid of the so-called arbitration agreement. In the learned Judge''s view, the statements filed by the parties before the Chamber, each asking for an award in its favour, constituted a clear submission in writing and, therefore, the Chamber was entitled to hold the arbitration on the basis of that submission, even if the arbitration clause contained in the contract was meaningless and of no effect.

It cannot for one moment be doubted that the so-called arbitration clause, which I have already read, does not even make sense, not to speak of making an agreement. I do not, however, find it easy to agree with the learned Judge that jurisdiction of the Chamber to hold the arbitration can be found in a fresh submission made by the parties through the statements filed by them. Any arbitration held by the Chamber would have to be an arbitration held according to its rules and the rules require that after a submission has been made on the basis of an agreement between the parties, they shall file written statements of their respective case. The filing of statement has, therefore, to be preceded by a submission and the submission has to be preceded by an arbitration agreement. It is true that under Rule IX of the Rules of the Chamber''s Tribunal of Arbitration a party may file a statement of his case along with the application for arbitration, but it does not seem to be possible under the rules that the arbitration agreement shall be contained in the statement itself. I, therefore, do not feel persuaded that a fresh submission could me made out of the statements filed by the parties in the present case and that the arbitration held by the Chamber could be upheld on the basis of such a submission.

Nonetheless, I am not prepared to dissent from the learned Judge in his view that the Chamber had jurisdiction to hold that arbitration, but I would base their jurisdiction on the arbitration clause itself. True it is, as I have already pointed out that a third party, reading the words in which the arbitration clause is expressed, would not find in them any meaning, not to speak of any intelligible agreement, but, at the same time, it appears to be perfectly clear that so far as the parties themselves are concerned, they thought that by using the words which they had used, they had entered into an arbitration agreement. Words used by parties in any document are merely the vehicles of their intention or the meaning they wish to convey and if what their intention was appears from their subsequent conduct, it would be wrong to hold one or other of them to the dictionary meaning of the words or the grammar of the language used. Where the words of a document are ambiguous or apparently meaningless, it is legitimate to ascertain the true intention of the parties from their subsequent actings which may have illustrated in what sense they themselves had used the words and what their true intention was. In the present case, the Respondent stated to the Tribunal in paragraph 1 of its first statement that by the contract, of which it was enclosing copies, the parties had agreed to rerfer any dispute arising between them to the arbitration of the Indian Chamber of Commerce. By paragraph A of its own statement, the Appellant admitted the statements contained in paragraph 1 of the statement of the Respondent to be correct. Not stopping there, the Appellant itself asked for an award from the Chamber in its own favour which could have been only on the basis that there was an agreement between the Respondent and itself for a reference of their disputes to the arbitration of the Indian Chamber of Commerce. Defective as the arbitration clause is, if the words are taken in their ordinary sense, it is abundantly clear from the conduct of the parties that, by using those very words, they had intended to enter into an agreement for arbitration and that one of them had actually made a reference, while the other admitted that a reference could be made on the basis of the arbitration clause and even asked for an award in its own favour. I would, therefore, reject the first contention of the Appellant in agreement with the learned Judge, although for reasons different from those given by him.

The second contention urged before the learned Judge and repeated before us was that the arbitrators had proceeded ex-parte without service of a proper notice on the Appellant and that the award was accordingly bad. It was contended that the notice served by the Registrar for the meeting of April 20, 1955, did not state that if the Appellant failed to appear on that date, the reference would be heard and determined in its absence and that, in the absence of such a notice, the arbitrators had acted wrongly in proceeding ex-parte against the Appellant. The learned Judge mentions in his judgment that, in support of the contention, the Appellant relied on a decision of this Court which he does not name, but it was obviously the decision in the case of Juggilal Kamalapat v. The General Fibre Dealers Limited (1954) 59 C.W.N. 146. In the learned Judge''s view that decision would not apply to the case before him, because under the special rules of the Tribunal of Arbitration of the Indian Chamber of Commerce, particularly Rule 16, a court of arbitration was entitled to proceed ex-parte, even if no prior notice had been given that it would do so. Rule 16, the learned Judge said, was itself a notice that if any party failed to appear before a court of Arbitration of the Chamber, the court would proceed ex-parte, and, therefore, in the present case the arbitrators had authority to proceed ex-parte, as in fact they had done.

Before dealing with the second contention of the Appellant, it is necessary to state that what happened on April 20, 1955, was not investigated and is not at all clear. It does not seem to have struck the Appellant that it was necessary to have the facts relative to that date properly ascertained, if it wished to make a complaint that the arbitrators had proceeded against it ex-parte or that they had disposed of the reference without giving it any opportunity for producing evidence, although by the notice issued to it, it had been asked to come with evidence if it had any and although its representatives had been present at the date of the meeting with evidence. The real state of the facts is of importance even in relation to the broad question argued before the learned Judge, because if, as the Appellant contends, the arbitrators had proceeded without hearing its representatives although they were present in the premises of the Chamber, the question to decide would be not whether they had been right in proceeding ex-parte without giving a prior notice of their intention to do so, but whether they had not misconducted themselves in not hearing evidence which was ready for production and which they themselves had called for. It seems to me to be unfortunate to a degree that no attempt was made except in a somewhat rambling way to bring up before the Court the happenings of April 20, 1955, as they had actually taken place.

So far as the materials on the record go, the position is obscure. I have already read the notice which was issued to the Appellant. The Respondent admits that a similar notice was received by it. Both the parties were, therefore, asked to appear with whatever evidence they might have in their possession "in connection with the dispute." Whether or not the Appellant appeared on the relevant date, there is no question that the Respondent appeared and yet even the Respondent was not called. Its representative, one R.S. Gourisaria, states that he was present in the premises of the Chamber at 11 a.m. and continued to be present till the conclusion of proceedings of arbitration and that he left at about 12 noon when he was "informed that the court of Arbitrators had risen." It is thus clear that even the Respondent''s representative was not called in by the arbitrators to produce whatever evidence he might have, and he only heard from some one else, presumably an officer of the Chamber, that the arbitration had been taken up and the proceedings had concluded. This circumstance seems to lend support to the Appellant''s case that, according to the practice obtaining in the Indian Chamber of Commerce, parties to an arbitration proceeding and their witnesses report themselves in the office of the Registrar on the date fixed for a meeting of the arbitrators and that they go to the place of arbitration only if and when they are called in. If, therefore, the Appellant''s representatives did go to the premises of the Chamber on April 20, 1955, they too must have been kept waiting, as they say they were. It is true that according to the Registrar''s letter the Appellant''s representatives went after the arbitrators had disposed of the case and in the absence of any rebutting evidence, except affidavits of the Appellant''s representatives, that version of the facts must be accepted. Even then, however, a difficulty, to my mind, remains. If the parties to an arbitration held by the Indian Chamber of Commerce have no right to go straight to the place where the arbitrators are holding their meeting and if they have to wait outside till they are called in, it is obvious that the arbitrators would not know whether a party was or was not present, unless there is some system under which the presence of a party, as reported to the Office, is communicated to them. Unless, therefore, the fact be that there is such a system in vogue in the Indian Chamber of Commerce and that, on the relevant date in the present case, the presence of the Respondent''s representative was reported to the arbitrators, but there was no presence of any one on behalf of the Appellant to be reported and none in fact was, it would not be possible to find that the arbitrators proceeded ex-parte against the Appellant in the true sense of the term, that is to say, its absence on its failure to appear. In the absence of any such system, the position would be that the arbitrators, after having issued notices to the parties to come with their evidence, proceeded to dispose of the reference without hearing either of the parties and without giving them any opportunity for producing any evidence which they might desire to produce. I may point out in this connection that under Rule 13 of the Rules of the Chamber''s Tribunal of Arbitration, disputes are to be normally decided on the written statements of the parties, but a court of Arbitrators has power to appoint a time and place for the hearing of the reference and to hear oral evidence. In this particular case the court of Arbitrators did fix a time and place for the hearing of the reference and did inform the parties to come with their evidence, if they had any to produce.

I shall, however, assume that the Respondent was present, but the Appellant was not and that the absence of the Appellant was brought to the notice of the arbitrators under some system of communication in force in the Chamber. In such a state of the facts, the arbitrators might be entitled to proceed ex-parte against the Appellant, if the absence of a prior notice of an intention to do so did not debar them, but I find it difficult to see how the arbitrators could have proceeded without taking any evidence even from the Respondent. In a suit in a civil court, where the Plaintiff appears but the Defendant does not, the suit is not decreed straightaway ex-parte, but the Plaintiff is asked to prove his case by evidence. In the present case, the Respondent stated in its first statement that the market rate of oil cake in October, 1952, was Rs. 8-13 per maund and, by paragraph 11 of that statement, offered to produce its books of account and other relevant documents to show that such was the market rate prevailing on or about the date of the alleged breach of the contract. The Appellant, by paragraph G of its statement, traversed the respondest''s allegation and stated that in fact the market rate of oil cake at the relevant time had been less than Rs. 8-4 per maund. It added that it was ready to produce evidence in support of the case it was making. As I have already stated, the Respondent in its further statement reiterated its case that the market rate in October, 1952, had in fact been Rs. 8-13 per maund. In that state of the pleadings, I find it difficult to see how the arbitrators could, even if the Appellant was absent and even if they were entitled to proceed against the Appellant ex-parte, have disposed of the reference without some evidence given by the Respondent. They in fact did so, but it is curious to find their award stating that they had considered the statements of the parties "and the evidence" before them. This point does not appear to have been urged before the learned trial Judge, although, it was taken in the petition and has been included in the grounds of appeal. I am referring to it, not because I think I can make it the ground of our decision in the appeal, but because it lends considerable importance to the question as to whether the arbitrators; were entitled to proceed against the Appellant ex-parte, and* requires us to examine the matter closely.

The general principles governing the right of an arbitrator to proceed ex-parte were discussed by me at some length in the judgment to which the learned Judge has referred. I pointed out in that judgment that the procedural rule applicable to arbitration, proceedings appeared to be more tolerant than the rule followed in courts of law and that so far as decided cases went, it appeared'' to have always been laid down that unless an arbitrator had good" cause to think that a party would not appear before him in any circumstances, he would not be justified in proceeding against him-ex-parte without giving a prior notice that he would do so, if he failed to appear on the date fixed. Perhaps the reason of that special rule, which the courts have applied to arbitrators, is the informality of such tribunals and the likelihood of the parties paying less attention to their notices than to notices issued by courts of law. But, as I also pointed out, even courts of law, at least in this country, add a warning in the notices issued by them that in default of appearance on the part of the party addressed the matter will be heard and determined in his absence. The learned trial Judge has not questioned the soundness of the general rule, held in our previous decision to be applicable to arbitrators, but has proceeded on the basis that the special rules of the Indian.

The Court may proceed with the reference notwithstanding any failure to file a written statement within due time and may also proceed with the reference in the absence of any or both of the parties who being allowed to appear before the Court shall, after due notice, refuse or neglect to make their submissions or attend... Chamber of Commerce exclude its application in the present case. I have, therefore, to see whether they really do.

Rule XVI of the rules, on which the learned Judge specially relies, is in these terms:

As far as I understand the learned Judge, his view is that while a prior notice that in default of a party''s appearance, the arbitrators would proceed against him ex-parte, may, as a rule, be necessary for entitling arbitrators so to proceed, in the case of arbitrations held by the Indian Chamber of Commerce, r. XVI is a standing notice to the fame effect which need not therefore be repeated in the notices actually issued in individual cases and which itself constitutes a sufficient warning to the parties as to what the consequence of default of appearance will be. With:respect, I am unable to agree in that view.

Before I deal with the basis upon which the learned Judge has distinguished the earlier case, I must point out that the arbitration with which that case was concerned was an arbitration held by the Bengal Chamber of Commerce and that the rules of the Tribunal of Arbitration of that Chamber as well include a rule expressed more or less in the same terms as Rule XVI of the Indian Chamber. Unfortunately, our attention was not drawn in the previous case to the existence of that rule and necessarily it was not discussed in the judgment, but, as I am going presently to show, it would have made no difference, even if it had been taken into consideration.

What Rule XVI of the Indian Chamber of Commerce lays down does not appear to me to be anything special and it is only a statement of the ordinary consequence of failure to appear, when summoned by a court or a tribunal. Such a provision exists even in the Code of Civil Procedure. Confining ourselves to the absence of a Defendant, Rule 6 of Order IX provides that if the Plaintiff appears and the Defendant does not appear when the suit is called on for hearing, then-

(a) It is proved that the summons was duly served, the Court may proceed ex-parte.

More or less on the same lines, Rule XVI of the Indian Chamber says that the court may proceed in the absence of any or both of the parties who shall "after due notice" refuse or neglect to attend. "What is "if the summons was duly served" in Rule 6 of Order IX, is "after due notice" in Rule XVI of the Indian Chamber of Commerce. "While, therefore, Rule XVI does authorise a court of Arbitrators to proceed ex-parte against a party in his absence, it authorises the court to do so only if he has failed to attend "after due notice". The question, therefore, is what "due notice" means.

If a particular form of notice had been prescribed by the rules of the Indian Chamber of Commerce and, as a consequence, it came to be known by parties who agreed to refer their disputes to the arbitration of the Chamber that they could expect a notice only in that form and if even after receiving a notice in that form, they failed to appear, it might plausibly be argued that the special rules of the Chamber took arbitrations held by it out of the general rule as to ex-parte hearing by arbitrators and that service of the notice in the form prescribed was sufficient to entitle the arbitrators of the Chamber to proceed ex-parte against an absent party. There is, however, no form of notice prescribed. If there be no form to which the parties have bound themselves by agreeing to submit to arbitration by the Chamber according to its rules, there is no reason why the general principle should not apply to arbitrations held by the Chamber and why the due notice contemplatel by Rule XVI should not be interpreted as a notice containing a warning that, in default of appearance on the part of the party to whom the notice had been issued, the arbitrators would proceed ex-parte. I have already read the relevant provision contain in Rule 6 of Order IX. In spite of that provision, the notice prescribed by Form No. I of Appendix B of the Code includes a warning to the Defendant and says to him that in default of his appearance on the day mentioned the suit will be heard and determined in his absence. It might well be said with respect to Rule 6 of Order IX that since that rule exists, the notice issued to the Defendant need not contain any warning as to the consequence of default of appearance, but it appears that the farmers of the Code thought it right to give effect to the general principle and have included the warning in the form of the notice. I, therefore, do not find any reason to hold that the position with regard to Rule XVI should be any different and that the due notice, the service of which would entitle arbitrators of the Indian Chamber of Commerce to proceed ex-parte, can be any notice other than a notice containing a warning that if the party concerned does not appear, the arbitrators shall proceed in his absence to hear and determine the reference.

In support of my view that Rule XVI does not in fact embody any special rule, but merely states the general principle, I may refer to the observations contained in ''Russell on Arbitration'' on an arbitrator''s right to proceed ex-parte. I am reading from the 15th edition of the book.

Every arbitrator is authorised,

says the learned author,

By the nature of his office, to proceed ex-parte for good cause. It is unnecessary, though not unusual, to give him the power in express terms in the submission.

The view of the learned trial Judge in the present case obviously is that the express terms in the submission, which incorporated rules of the Indian Chamber of Commerce by reference and, therefore, incorporated Rule XVI, the arbitrators had been specially authorised to proceed ex-parte in default of appearance on the part of any one of the contestants. The observation in Russell makes it clear that such an express condition adds nothing to the ordinary powers of the arbitrator who is entitled to proceed ex-parte for good cause by the very nature of his office. As to when he is entitled so to proceed, the statement in Russeel is as follows:

In general, the arbitrator is not justified in proceeding ex-parte without giving the party absenting himself due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator''s intention clearly, otherwise the award will be set aside. An ordinary appointment for a meeting with the addition of the word ''peremptory'' marked on it is, however sufficient.

The learned author proceeds to state that if an arbitrator does not proceed on the first failure to attend a peremptory appointment and gives another appointment, he is not authorised to proceed ex-parte at the second meeting, unless the appointment for it was also marked ''peremptory'' or contained a similar intimation of his intention, but we need not deal with that case here, because the appointment in the present case was the first appointment. I do not think I need discuss the cases on which the propositions in Russell are founded, some of which were noticed in my earlier judgment. It is clear that although an arbitrator is entitled by the nature of his office to proceed ex-parte for good cause, it is not open to him to proceed ex-parte in the absence of one of the contestants without giving a prior notice of his intention to do so. Mere absence of a party, on whom a notice without a warning of the intention to proceed has been given, is obviously not ''good cause''. There is nothing, in my view, in Rule XVI of the rules of the Indian Chamber of Commerce which detracts from that general principle as applied to arbitrators of the Indian Chamber of Commerce. They can proceed ex-parte only if a party has failed to appear upon a due notice being given to him, but ''due notice'' must be a notice containing a warning of an intention to proceed ex-parte in default of appearance on the part of the party concerned.

Another reason why Rule XVI cannot be read as dispensing with a prior warning by a notice that the arbitrators shall proceed ex-parte if the parties do not appear is that the rule provides no more than that the court ''may proceed'' in the absence of the parties if they neglect to attend. Since thee rule only says that the arbitrators may proceed ex-parte, they may so proceed or may not. Mere knowledge of the rule will therefore convey no definite warning to the parties to a particular dispute that, in their case, the arbitrators will exercise their option in favour of proceeding ex-parte. In order that the notice to the parties may be due or sufficient notice so as to entitle the arbitrators to proceed in their absence by virtue of the rule, it will thus have to convey a warning that the arbitrators have made their choice between the two procedures permissible under the rule and they will proceed in the absence of the parties, if they fail to appear.

I may point out that the arbitration agreement in the present case merely states that in the case of a dispute between the parties, both would be bound to accept arbitration of the Indian Chamber of Commerce. In terms, the agreement does not say, as the arbitration clause in the standard from prescribed by the Indian Jute Mills Association does, that by the rules of the tribunal shall the arbitration be conducted. I am, however, prepared to concede that by agreeing to arbitration by the Indian Chamber of Commerce, the parties agreed to submit to an arbitration held according to the rules of the Chamber.

The meeting of the arbitrators in the present case was the very first meeting. I have read alreay the terms of the notice issued to the parties. The facts, as appearing from the records, give one an uncomfortable feeling that the arbitrators may have proceeded without considering the evidence which the parties might like to produce, after asking them to. come with evidence and given a decision on a point which, without some evidence, could not possibly be decided. But the facts with regard to that matter have not been investigated fully and, therefore, we cannot make any particular view of the facts the ground of our decision. Even taking the basis which the learned Judge adoptd, namely, that "on April 20, the arbitrators did not find the applicant there", I am of opinion that in the absence of a prior notice containing an warning that if the Appellant failed to appear, the arbitrators would proceed against it ex-parte, they were not justified in doing so and therefore the award made by them cannot be upheld. It cannot be overlooked that, in any event, the applicant appeared before the Chamber on the very day of the arbitration and sent in its evidence which was returned and that the award was not made till after a fortnight.

For the reasons given above, this appeal is allowed and the judgment and order of the learned Judge are set aside. The Appellant''s application for setting aside the award is allowed and the award is set aside.

The Appellant will have the costs of the trial Court as also of the appeal.

Lahiri, J.

I agree.