Onkarnath Jajodia vs Brijlal Jajodia

A.N. Sen, J.—This is an appeal against the judgment and order passed by Salil K. Roy Chowdhury J. on June 28, 1971.

On a petition verified by an affidavit affirmed on September 20, 1969, an application u/s 20 of the Arbitration Act for filing an arbitration agreement dated July 18, 1966, and for an order of reference was made before the learned trial Judge. The Petitioner before the learned trial Judge was Brijlal Jajodia. The Respondents to the said application were--(1) Onkarnath Jajodia, (2) Bimal Kumar Jajodia, (3) Dilip Kumar Jajodia and (4) Pradip Kumar Jajodia. Onkarnath Jajodia and Brijlal Jajodia are brothers. Bimal Kumar Jajodia is the son of Onkarnath. Dilip Kumar Jajodia and Pradip Kumar Jajodia are the sons of Brijlal Jajodia. Brijlal Jajodia and Onkarnath Jajodia, the two brothers, carried on business under the name and style of ''Onkarnath Brijlal'' at No. 14 Netaji Subhas Road, Calcutta. Brijlal Jajodia in his petition alleged that the said firm of Onkarnath Brijlal acquired considerable assets and properties and the said firm also made substantial investment in various concerns including M/s. Southern Industries Pvt. Ltd. of No. 4 Ganesh Chandra Avenue, Calcutta. Brijlal further alleged that the assets and funds of the said firm had also been invested in the individual names of the partners, their friends and relatives, and apart from the two brothers, namely, the applicant Brijlal, and the Respondent No. 1 Onkarnath, the other three Respondents also claimed to be interested in the said firm, its properties, assets and investments. It appears that disputes and differences had arisen between the parties and for the settlement of such disputes the parties entered into an agreement on July 18, 1966. It is necessary to set out in its entirety the said agreement which reads as follows:

THIS AGREEMENT made this 18th day of July One thousand nine hundred and sixty six BETWEEN (1) ONKARNATH JAJODIA, son of Maniklal Jajodia, deceased residing at No. 13 Mandeville Gardens, Calcutta-19, hereinafter referred to as the party hereto of the First Part, which term of expression shall unless excluded by or repugnant to the context include his heirs, executors, administrators and representatives of the First Part, (2) BIMAL KUMAR JAJODIA, son of the said Onkarnath Jajodia, residing at premises No. 13 Mandeville Gardens, Calcutta-19, hereinafter referred to as the party hereto of the Second Part, which term or expression shall unless excluded by or repugnant to the context include his heirs, executors, administrators and representatives of the Second Part, (3) BRIJLAL KUMAR JAJODIA, son of the said Maniklal Jajodia, deceased residing at No. 13 Mandeville Gardens, Calcutta-19, hereinafter referred to as the party hereto of the Third Part, which term or expression shall unless excluded by or repugnant to the context include his heirs, executors, administrators and representatives of the Third Part, and (4) DILIP KUMAR JAJODIA, son of the said Brijlal Jajodia, residing at premises No. 13 Mandeville Gardens, Calcutta-19, hereinafter referred to as the party hereto of the Fourth Part (which terms or expression shall unless excluded by or repugnant to the context mean and include his heirs, executors, administrators and representatives) of the Fourth Part, and PRADIP KUMAR JAJODIA, son of the said Brijlal Jajodia, residing at No. 13 Mandeville Gardens, Calcutta, hereinafter referred to as the party hereto of the Fifth Part (which terms or expression shall unless excluded by or repugnant to the context mean and include his heirs, executors, administrators and representatives) of the Fifth Part.

Whereas:

The parties hereto or some of them are the joint owners of some assets and properties.

The said Onkarnath Jajodia, Brijlal Jajodia and Bimal Kumar Jajodia are the partners in the Partnership Firm carrying on business under the name and style of ''Onkarnath Brijlal'' at No. 14 Netaji Subhas Road, Calcutta.

Some disputes and differences have arisen between the parties hereto in connection with the said assets and properties and the affairs of the said Partnership Firm.

With a view to resolve all disputes and differences the parties hereto have agreed to refer all the said disputes, differences and matters to the sole arbitration of Shri Sohanlal Jajodia of No. 209 Chittaranjan Avenue, Calcutta.

NOW IT IS HEREBY AGREED BY and BETWEEN THE PARTIES hereto as follows:

The parties hereto of the First and Second Parts have agreed to refer under the Arbitration Act, 1940, all disputes and differences and matters between them including those of the said Partnership Firm and all matters and things touching or concerning the same of the sole arbitration of Shri Sohanlal Jajodia of No. 109 Chittaranjan Avenue, Calcutta.

The Arbitrator shall be entitled to make one or more Award and also interim Award and Awards and shall make his final Award within six months from the date hereof.

The Arbitrator shall have the powers to give direction from time to time such party or parties for the purpose of production of books of accounts, documents, papers, evidence and/or such other assets and properties and/or such other direction or directions as may be necessary from time to time at the discretion of the Arbitrator.

Each of the parties hereto shall be bound to carry out all direction or directions of the Arbitrator within the time fixed by him.

The Arbitrator will have all the summary powers under the Arbitration Act, 1940, and will be entitled to admit or reject such evidences as may be thought fit and proper by him.

The Arbitrator shall have also the powers:

(a) To consult any lawyers and to incur such costs, expenses and charges as he may think fit and proper and to direct payment of all such costs, expenses and charges to such of the parties as he may think fit and proper

and

(b) To enlarge the time for making Award or Awards with the consent of the parties.

In Witness Whereof the parties hereto have hereunto set and subscribed their respective hands the day month and year first above written.

SIGNED AND DELIVERED AT

Calcutta in the presence of:

Sd. Onkarnath Jojodia

Sd. Bimal Kumar Jajodia

Sd. Dilip Kumar Jajodia

Sd. Brijlal Jajodia

Sd. (S.K. Agarwal) Sd. Pradeep Kumar Jajodia

Brijlal Jajodia made an application u/s 20 and in his said application he prayed for the following orders:

(a) The arbitration agreement dated July 18, 1966, be filed in Court. (b) An Arbitrator be appointed and an order of reference to arbitration be made to the Arbitrator to be appointed herein. (c) Costs of and incidental to this application be paid by the Respondent.

In his said petition Brijlal Jajodia stated that on or about September 10, 1969, he came to know for the first time that the said Sohanlal Jajodia was not willing to act as an Arbitrator. He further stated that the parties entered into the said arbitration agreement to resolve the differences and disputes by reference to arbitration and it was not the intention of the parties to the said agreement that if the said Sohanlal Jajodia was unwilling to act as Arbitrator, the disputes and differences would not be settled by reference to arbitration in accordance with the said arbitration agreement.

In para. 7 of the petition Brijlal sets out the differences and disputes. He states in that paragraph--

Particulars of some of the differences and disputes are set out hereunder:

(a) Claim of the Respondents Nos. 2, 3 and 4 in respect of and concerning to the said firm, its assets, properties, funds and investments.

(b) Difference and disputes in connection and concerning the assets, properties, funds and investments of the said firm.

(c) Differences and disputes relating to the affairs of and accounts of the said firm.

(d) Differences and disputes relating to and concerning the assets and properties acquired with and out of funds and assets of the said firm.

(e) Differences and disputes relating to and concerning the investments made by the said firm including those with the said M/s. Southern Industries Pvt. Ltd. and M/s. Bengal Corporation Pvt. Ltd.

(f) Differences and disputes relating to and concerning the investments and/or properties acquired by the Said firm in the names of the partners thereof and their friends, relatives and nominees.

The said application of Brijlal Jajodia was opposed by Onkarnath Jajodia and his son Bimal Kumar Jajodia and an affidavit on their behalf was filed by Onkarnath Jajodia. Onkarnath in his affidavit stated that the firm of ''Onkarnath Brijlal'' was constituted on or about June 5, 1950, with Brijlal and Onkarnath as its partners and the said firm was reconstituted with effect from April 1, 1955, by taking Bimal Kumar Jajodia as also a partner in the said firm. Onkarnath further alleges that the said firm was dissolved on or about August 5, 1964. Onkarnath has stated in para. 6 of his affidavit that certain disputes and differences arose between the parties prior to 1964 and the parties purported to agree that such disputes and differences would be resolved by the sole arbitration of Sohanlal Jajodia, who is an uncle of Onkarnath and Brijlal, and there was no intention of going to arbitration generally and it was agreed and/or understood that they would go to arbitration of the said Sohanlal Jajodia and of no one else. He has alleged in para. 9 of his affidavit that after the said purported agreement dated July 18, 1966, was entered into, the parties tried to give effect thereto by reference of the disputes to the sole arbitration of Sri Sohanlal Jajodia; but the parties, however, could not agree upon the specific disputes which would be referred to arbitration and, as such, the entire arbitration proceedings fell through. Onkarnath alleges that it was thereupon expressly and/or impliedly agreed by and between the parties, inter alia, that the parties or any of them will be free to take appropriate legal proceedings in respect of any alleged disputes in Courts of law and that the said purported arbitration agreement would no longer remain operative or binding; and, in fact, that the Petitioner thereafter filed two applications for winding up of Southern Industries Pvt. Ltd. and Bengal Corporation Pvt. Ltd. Onkarnath further alleges in para. 12 of his affidavit that since the arbitration agreement and/or submission was given a go-bye, there is no question of Sri Sohanlal Jajodia''s acting as Arbitrator. He has further alleged in para. 11 of his affidavit that the Petitioner Brijlal Jajodia was guilty of gross and inordinate delay which entitled him and the Respondent Bimal Kumar jajodia to repudiate the said purported agreement and/or submission and he and his son Bimal Kumar have, repudiated and/or hereby repudiate the said purported agreement and/or submission. He has also alleged that the purported agreement is wholly vague and the alleged disputes have not been subsequently specified. He has further complained that the Petitioner Brijlal Jajodia has never been ready and willing to go to arbitration.

On behalf of Onkarnath Jajodia and Bimal Kumar Jajodia, who opposed the said application of Brijlal Jajodia, the following contentions were raised before the learned trial Judge:

(1) The arbitration agreement is vague and uncertain.

(2) The arbitration agreement was superseded by the parties and was given a go-bye.

(3) The petition filed is not maintainable as the same does not comply with the statutory provision of Section 20 and the form prescribed by the rule framed by the Original Side of this Court.

(4) The disputes are not covered by the arbitration agreement as all the parties interested are not parties to the agreement and disputes and differences mentioned in the petition are vague and hot specific.

(5) The arbitration agreement has come to an end, as the reference was to the sole arbitration of Sohanlal Jajodia and to nobody else and the parties did not intend that any other Arbitrator than Sohanlal Jajodia should act as an Arbitrator.

(6) The discretion conferred on the Court u/s 20 of the Arbitration Act should not be exercised in favour of the Petitioner for granting the application on the grounds--

(a)The claim of the Petitioner is barred by limitation.

(b) The Petitioner is guilty of inordinate delay and laches which amount to and result in abandonment of his right under the agreement.

(c) The nature of the claim and dispute relates to a partnership and dissolution of the same.

(d) The Petitioner was not ready and willing to go to arbitration.

(e) The nature of the dispute is clearly very complex in nature and should not be referred to arbitration.

In support of the said contentions raised, various decisions were also cited before the learned trial Judge. The learned Judge considered the arguments advanced and the decisions cited and was pleased to negative the aforesaid contentions raised on behalf of Onkarnath Jajodia and Bimal Kumar Jajodia for reasons stated in his judgment. In the judgment the learned Judge summarised his views and observed:

Now, I summaries my view so far as each Contention of Mr. Gupta as follows:

(A) As to the contention that the arbitration agreement is vague and uncertain, I am unable to accept the same on the grounds--

(a) that the agreement is sufficiently clear in its terms and the parties understood the nature of the disputes and the scope of the same and there is no vagueness and uncertainty whatsoever in the agreement. In any event, anything which can be made certain is not certain. So having regard to the relationship and nature of the disputes the arbitration agreement is quite clear.

(b) Regarding the question of superseding the arbitration agreement dated 18th July, 1966, or giving a go-bye to it or repudiation of the same, I am unable to hold from the facts of this case that the said agreement has been superseded having regard to the relationship and pasture of disputes between the parties. When the disputes between the parties are still continuing in all fronts there cannot be any question of giving a go bye to the arbitration agreement dated 18th July, 1966.

(c) Regarding non-compliance of the statutory form under rules made by rules of this Court, Original Side, u/s 20 of the Arbitration Act, I hold that the differences between the parties have been set out in paragraph. 7 of the petition and that is in specific compliance of the requirements. Having regard to the nature of the disputes and relationship between the parties the said particulars are sufficient at this stage for the purpose of this application.

(d) Regarding the question that the disputes are not covered by the arbitration agreement as all the parties interested are not parties to the agreement, I am unable to hold that all the parties are not parties to the agreement as the agreement has been signed by the parties who have been made specific parties to the same being persons interested therein and I further hold that the disputes between the parties are covered by the arbitration agreement.

(e) Regarding the contention of the intention to fill up the vacancy of the Arbitrator and as the Arbitrator refused to act. the arbitration agreement came to an end, I am unable to agree with the same. Applying the principles laid down in the Lahore case, reported in AIR 1933 Lah 18 and Supreme Court case, reported in Parbhat General Agencies, etc. Vs. Union of India (UOI) and Another, etc., , I am bound to hold in the facts of this case that there was no intention of the parties not to fill up the vacancy of the Arbitrator. There was nothing technical or special in the nature of the disputes between the parties and the Arbitrator was not required to be a specialist having technical knowledge. As such the question does not arise. From the agreement it clearly appears that primary objects of the parties were to settle their disputes by arbitration and not by an arbitration of a particular person, i.e. Sohanlal Jajodia, i.e. the uncle of the parties in the suit. The agreement clearly shows that the parties had no intention not to fill up the vacancy.

(f) Regarding the exercise of discretion u/s 20 of the Arbitration Act, 1940, as I have already held that the question of the Petitioner''s claim being barred by limitation or possibility of the same being barred by limitation cannot be a factor of the consideration of the Court as has been held in the said two Supreme Court decisions, reported in AIR 1967 S.C. 992 and Mohd. Usman Military Contractor, Jhansi Vs. Union of India (UOI), Ministry of Defence, and also under the unreported decision of the Appeal Court of S.P. Mitra and S.K. Mukherjee JJ. referred to herein before. I am also unable to hold that the Petitioner was not ready and willing to go to arbitration as pointed out by Mr. Gupta.

The learned Judge held that all the conditions u/s 20 had been fulfilled in the instant case and the learned Judge made an order u/s 20 of the Arbitration Act directing a photostat copy of the said agreement dated July 18, 1966, to be filed and appointing Mr. A.K. Bhattacharjee, Barrister-at-Law, as the Arbitrator to adjudicate upon the disputes between the parties as set out in para. 7 of the petition and the learned Judge made an order of reference to the said Arbitrator.

Against the said order of the learned Judge, Onkarnath Jajodia and Bimal Kumar Jajodia have preferred the present appeal.

Mr. Dipankar Gupta, learned Standing Counsel appearing in support of the appeal, has submitted that the learned trial Judge has erred in making the order u/s 20 of the Arbitration Act in the instant case on the said application of Brijlal Jajodia. Mr. Gupta has raised more or less the same contentions before us. The points urged by Mr. Gupta before us may conveniently be formulated:

(1) There was no arbitration agreement between the Respondents including the Petitioner Brijlal Jajodia and the Appellants Onkarnath Jajodia and Bimal Kumar Jajodia which could be directed to be filed u/s 20 of the Arbitration Act and on the basis of which any reference could be ordered.

(2) The arbitration agreement, if any, between the Respondents including the Petitioner and the Appellants is vague and unenforceable.

(3) Assuming there is an arbitration agreement between the parties, the parties had clearly intended that the disputes would be adjudicated upon by Sohanlal Jajodia, the named Arbitrator, and by nobody else and in the event of Sohanlal failing, refusing, neglecting and/or not being able to act as Arbitrator, no other person would act as Arbitrator and the vacancy caused would not be filled up.

(4) The arbitration agreement between the parties, if any, was superseded and was given a go-bye by the parties and is no longer valid and subsisting.

(5) The Appellants have become entitled to repudiate the arbitration agreement, if any, between the parties and have repudiated the same.

(6) The discretion conferred on the Court u/s 20 should not in any event have been exercised in favour of the Petitioner Brijlal Jajodia in granting the order u/s 20.

In support of his first contention that there was no arbitration agreement between the Appellants and the Respondents including the Petitioner Brijlal Jajodia, the learned Standing Counsel has drawn our attention to the document itself which has already been set out in its entirety in the earlier part of the judgment. The learned Standing Counsel has contended that there are five parties to the document who have all signed the same. The first party to the document is Onkarnath Jajodia and he is described in the document as the party of the First Part. The second party to the document is Bimal Kumar Jajodia who is described as the party of this Second Part, the third party is Brijlal Jajodia who is described as the of the Third Part, the fourth party is Dilip Kumar Jajodia who is described as the party of the Fourth Part and the fifth party is Pradip Kumar Jajodia who is described as the party of the Fifth Part to the document. Mr. Gupta points out that though there are these five parties who have all signed the document and who are all parties to the document, the operative portion of the document which contains the arbitration agreement in Clause 5 clearly indicates that the parties of the First Part, and Second Part, who happen to be Onkarnath Jajodia and Bimal Kumar Jajodia, have agreed to refer all disputes and differences and matters between them including those of the partnership firm and all matters and things touching or concerning the same to the sole arbitration of Sohanlal Jajodia. Mr. Gupta contends that the arbitration agreement contained in the said document was, therefore, only between Onkarnath Jajodia and his son Bimal Kumar Jajodia and they agreed to refer their disputes to arbitration of Sohanlal Jajodia. Mr. Gupta contends that there was no arbitration agreement with the other three parties and the other three parties who may be parties to the documents are not parties to the arbitration agreement. It is the contention of Mr. Gupta that the document clearly indicates that the other parties were made parties to the document as they were interested in the properties which were the subject-matter of arbitration and adjudication was necessary in their presence. Mr. Gupta argues that the languages of the document is quite clear and the said document makes perfect sense. It is the argument of Mr. Gupta that if there were no disputes between the Appellants and the Respondents and there were disputes between the Appellants inter se, the Respondents would be necessary parties to an agreement referring such disputes to arbitration in respect of properties and assets in which the Respondents were or might be interested. Mr. Gupta submits that the recitals clearly indicate that there were assets and properties in which all the parties to the document were interested and there were disputes amongst them with regard to such properties, and by this agreement the disputes between the first party and the second party to the document were referred to arbitration of Sohanlal Jajodia. Mr. Gupta contends that even if on a construction of the entire agreement it can be urged that the mention in the operative portion of the agreement in Clause 5(1) of ''the parties hereto of the First and Second Parts'' is a mistake, the said mistake has to be rectified first in accordance with law and so long as the mistake is not rectified, the said agreement cannot be directed to be filed on an application by Brijlal jajodia who is not a party to the arbitration agreement. Mr. Gupta submits that the provisions of Section 26 of the New Specific Relief Act of 1968, which correspond more or less to the provisions contained in Section 31 of the old Act, make ample provision for rectification of such mistake Mr. Gupta has argued that so long as the mistake has not been rectified in Accordance with law it is not open to this Court to seek to rectify the mistake by construing the said agreement to be an agreement of arbitration between all the parties, when the clear language of the said agreement does not permit such construction and also does not lead to any manifestly absurd result. Mr. Gupta has commented that the reasoning of the learned Judge that all the parties are parties to the agreement as all the parties are parties to the document and have signed the same, is clearly erroneous, and it is the comment of Mr. Gupta that undoubtedly all the parties who have signed the document are parties to the agreement, but in view of specific provision made in Clause 5(1) to the effect "the parties hereto of the First and Second Parts (which refer to Onkarnath Jajodia and Bimal kumar Jajodia) have agreed to refer under the Arbitration Act,1940, all disputes and differences and matters between them... the arbitration agreement is only between the said two parties and not between all the parties. Mr. Gupta further comments that though all the five parties have signed the document and have entered into the said agreement, they have chosen to provide for arbitration only in respect of disputes between two of the parties, namely, party of the First Part and the party of the Second Part.

Mr. Gupta has next contended that the arbitration agreement, if any, between the parties is vague and unenforceable. It is the contention of Mr. Gupta, that the arbitration agreement is in respect of existing disputes and not future disputes, and in this connection he has referred to paras. 3 and 4 of the petition and to Clause (3) of the recitals in the arbitration agreement. Mr. Gupta has argued that the nature of the existing disputes is not indicated in the arbitration agreement and there may arise disputes between the parties as to the disputes which had arisen and in respect of which arbitration was agreed. It is his argument that a dispute as to the nature of dispute agreed to be referred to arbitration renders the arbitration agreement vague and, therefore, void and it is not open to the Arbitrator to adjudicate upon the dispute as to What disputes were agreed to be referred to arbitration, as the Arbitrator is only competent to adjudicate upon the disputes which have been agreed to be referred to arbitration. In this connection Mr. Gupta referred to the decision of the Patna High Court in the case of Jai Gobind Singh and Another Vs. Bagal Lal Singh, . Mr. Gupta has also pointed out that in para. 9 of the affidavit-in-opposition it has been alleged that the entire arbitration proceedings fell through as the parties could not agree upon the specific disputes which would be referred to arbitration and there is no specific denial of this allegation in the affidavit-in-reply of the Petitioner Brijlal Jajodia. Mr. Gupta has contended that the disputes which have been mentioned in para. 7 of the petition and in respect of which the order of reference has been directed are clearly vague and no particulars of the said disputes have been furnished. It is the contention of Mr. Gupta that as the arbitration agreement itself is vague and the disputes mentioned in para. 7 are equally vague, no arbitration in respect of such disputes is possible. Mr. Gupta has also drawn our attention to Form No. 1 in the Schedule of Forms u/s 20 of the Arbitration Act. Mr. Gupta has relied on the decision in the case of Sm. Balika Devi and Another Vs. Kedar Nath Puri, and also on the decision in the case of The Indian Minerals Co. Vs. The Northern India Lime Marketing Association, . Mr. Gupta has commented that the learned Judge was clearly wrong in holding that

having regard to the relationship and nature of the disputes between the parties, the arbitration agreement is quite clear

and it is not open to the Respondents to challenge the agreement on the ground of vagueness and uncertainty having regard to the fact that they clearly understood what has been referred to arbitration. It is his comment that the nature of relationship between the parties and even the fact that the parties knew what the disputes were, are of no consequence in determining whether the arbitration agreement is vague or not and knowledge of such disputes on the part of the parties does not prevent them from challenging the validity of the arbitration agreement on the ground that it is vague.

The third contention of Mr. Gupta has been that even if it be assumed that there is an arbitration agreement between the parties in respect of the disputes sought to be referred, the parties intended that the disputes should be adjudicated upon by Sohanlal Jajodia, the named Arbitrator, and by nobody else, and if for any reason or other Sohanlal failed or was unable to adjudicate upon the disputes, no other person would act as Arbitrator and the vacancy would not be filled up. Mr. Gupta has argued that the parties to the agreement are all near relations and the disputes between the parties are in the nature of family disputes and Sohanlal Jajodia is a near common relation of the parties It is the argument of Mr. Gupta that as the disputes were in the nature of family disputes between the members of the family, the parties agreed and intended that Sohanlal Jajodia, who is the uncle of the Petitioner Brijlal and also of Onkarnath, would adjudicate upon the said disputes and would settle the same. Mr. Gupta contends that the parties did not intend to go to arbitration generally or to the arbitration of any other person in respect of their family disputes and wanted to go to the arbitration of Sohanlal only. It is the contention of Mr. Gupta that this intention of the parties is quite clear from the agreement and to clearly manifest this intention the parties have not only named the Arbitrator in the operative part of the agreement and have also recited the said fact in the recitals of the agreement. It is submitted that if the intention of the parties is clearly indicated that the parties agreed to go to the arbitration of Sohanlal Jajodia and to the arbitration of nobody else, the vacancy, if created in consequence of Sohanlal not acting or being able to act as Arbitrator for any reason whatsoever, cannot be filled up and no other Arbitrator can be appointed in his place and the law on this aspect is quite clear. Mr. Gupta has commented that the learned Judge clearly went wrong in his construction of the agreement and failed to gather the true intention of the parties on a proper appreciation of the agreement and the relevant surrounding circumstances. It is the contention of Mr. Gupta that, on a true construction of the agreement, there can be no doubt that the parties intended to go to the arbitration of Sohanlal and nobody else, particularly as the provision is incorporated in the recital itself and bearing in mind the special powers conferred on him.

The next contention of Mr. Gupta has been that the arbitration agreement between the parties, if any, was superseded and was given a go-bye by the parties and is no longer valid and subsisting. Mr. Gupta has argued that a specific case that the arbitration agreement was superseded and was given a go-bye has been made in paras. 9 and 10 of the affidavit-in-opposition of Onkarnath Jajodia. He has argued that the facts stated in the said paragraphs have not been specifically denied in the affidavit-in-reply of Brijlal Jajodia and in paras. 6 and 7 of the said affidavit-in-reply there is only a general denial of the allegations made in the affidavit-in-opposition. Mr. Gupta argues that the facts and circumstances clearly bear out the case that the arbitration agreement was superseded and given a go-bye. The facts and circumstances on which Mr. Gupta relies, are that no steps were taken by the Petitioner on the basis of the arbitration agreement for a number of years and that the Petitioner had taken other proceedings in Courts of law. Mr. Gupta contends that in any event whether the said agreement has been superseded and/or been given a go-bye, raises a question of fact and it was the duty of the learned Judge to come to a conclusion on this question of fact on a proper consideration of the relevant materials. He comments that the learned Judge has not considered the relevant, materials and has not come to any finding on this question, of fact. It is the contention of Mr. Gupta that the entire approach of the learned Judge was wrong and the learned Judge was wrong in holding that the arbitration agreement had not been superseded "having regard to the relationship and nature of disputes between the parties" and "when the disputes between the parties are still continuing in all fronts there cannot be any question of giving a go-bye to the arbitration agreement dated July 18, 1966." It has also been submitted that the learned Judge was not right in holding that the arbitration agreement must be either superseded in writing expressly by the parties or it may be revoked or superseded by an order of Court. In support of the submission that supersession of an arbitration agreement need not necessarily be in writing, reliance had been placed on the decision of the Division Bench of this Court in the case of Rungta Sons Private Ltd. Vs. Jugometal Trg. Republike and Another, . Mr. Gupta has further commented that the view of the learned Judge that the question whether an arbitration agreement has been superseded or not is in the instant case a matter for the Arbitrator to decide, is clearly erroneous, as the Arbitrator has no jurisdiction to decide upon the question of his own jurisdiction.

The next contention of Mr. Gupta has been that in the facts of the instant case the Appellants have become entitled to repudiate the arbitration agreement, if any, between the parties and have repudiated the same and in view thereof there is no valid and subsisting agreement between the parties, Mr. Gupta has argued that the arbitration agreement was entered into on July 18, 1966, and no steps were taken by the Petitioner Brijlal Jajodia for over three years and the situation in the meantime has changed. In view of this in action and delay, the Appellants are entitled to repudiate the arbitration agreement and have repudiated the agreement. Mr. Gupta in this connection has relied on the decision of the Bombay High Court in the case of Vishwas Balwant Davare v. Bhalchandra Ganesh Thakur AIR 1931 Bom. 529. Mr. Gupta has criticised the view of the learned trial Judge that this decision is not good law.

The last submission of Mr. Gupta has been that the power conferred on the Court u/s 20 is a discretionary power. In the facts of the instant case, the learned Judge should not have exercised his power in favour of the Petitioner by ordering the agreement to be filed and directing a reference. Mr. Gupta has argued that the discretion conferred on Court u/s 20 is to be exercised on the same principles on the basis of which the discretion u/s 34 of the Arbitration Act has to be exercised. He has argued that, in the instant case, the Petitioners have taken no steps for more than three years and this fact clearly goes to show that the Petitioner was not ready and willing to go to arbitration. Mr. Gupta argues that the further fact that the Petitioner has taken recourse to legal, proceedings in respect of other disputes also indicates that the Petitioner was not ready and willing to go to arbitration. Mr. Gupta has also contended that the disputes had arisen before 1964 and the Petitioners sought to refer such disputes after the lapse of three years, and the claims of the parties must, therefore, be considered to be barred by limitation. It is his argument that, as the claims are necessarily barred by limitation, the arbitration will prove useless and harassing. Mr. Gupta has further argued that the question of dissolution of firm may also be involved and such a question should not be referred to arbitration. In support of this contention he has referred to the decision in the case of Oliver v. Hillier [1959] 2 All E.R. 220 and also to the decision in the case of Ganesh Chandra Dey and Another Vs. Kamal Kumar Agarwalla, . Mr. Gupta has submitted that taking all these facts into consideration the learned Judge should not have exercised his discretion in favour of the Petitioner and should have refused the said application of the Petitioner.

Mr. B.K. Bachawat, learned Counsel appearing on behalf of the Respondents, has submitted that in the facts of the instant case all the conditions required u/s 20 have been fulfilled and the Court was perfectly justified in making the order as the Court was bound to make the said order.

Mr. Bachawat took up first the question whether in view of the fact that Sohanlal Jajodia was named as the Arbitrator in the agreement, it was open to the Court to appoint some other Arbitrator in the vacancy caused by the refusal or failure or neglect on the part of Sohanlal Jajodia to act as such Arbitrator. Mr. Bachawat has argued that, in view of the provisions contained in Section 8(1)(b), it is always permissible to supply the vacancy if the appointed Arbitrator neglects or refuses to act or becomes unable to act for any reason whatsoever unless the arbitration agreement shows that it was intended that the vacancy should not be supplied. Mr. Bachawat has referred to the decision of the Supreme Court in the case of Parbhat General Agencies, etc. Vs. Union of India (UOI) and Another, etc., and has relied on the following observations:

It may be noted that the language of the provision is not ''that the parties intended to supply the vacancy'' but on the other hand it is that ''the parties did not intend to supply the vacancy''. In other words, if the agreement is silent as regards supplying the vacancy, the law presumes that the parties intended to supply the vacancy. To take the case out of Section 8(1)(b) what is required is not the intention of the parties to supply the vacancy but their intention not to supply the vacancy.

Mr. Bachawat has submitted that this decision of the Supreme Court clearly settles the law on this aspect. According to Mr. Bachawat, this decision of the Supreme Court lays down that there must be express provisions in the arbitration agreement to indicate the intention that the vacancy caused as a result of the appointed Arbitrator, not acting as such Arbitrator, will not be supplied and no other Arbitrator will be appointed in the place of the Arbitrator named in the arbitration agreement. Mr. Bachawat submits that in any event on a construction of the agreement the intention of the parties that the vacancy so caused will not be supplied must be manifestly clear. It is the submission of Mr. Bachawat that if the intention of the parties that the vacancy caused in the place of the named Arbitrator will not be supplied is not made manifestly clear, the vacancy so caused can always be filled up as the law in such cases will presume that the parties intended to supply the vacancy. Mr. Bachawat has argued that, in the instant case, there is no express provision in the agreement that the vacancy caused will not be so supplied. Mr. ''Bachawat has further argued that on a construction of the said agreement it cannot be said that the intention of the parties not to supply the vacancy is established or made clear. According to Mr. Bachawat, an analysis of the agreement indicates:

(1) that the parties are relations, (2) the parties are joint owners, (3) some of the parties who are relations are partners,(4) disputes and differences have arisen between the parties, (5) such disputes and differences will be referred to arbitration of Sohanlal Jajodia.

Mr. Bachawat contends that on a construction of the agreement it only appears that parties who are relations agreed to settle their disputes in respect of properties and assets which were owned jointly by some of them and in relation to a business in which three of them were partners by arbitration and the parties named Sohanlal Jajodia as the Arbitrator. There is nothing in the arbitration agreement, according to Mr. Bachawat, which indicates that the parties wanted the disputes to be settled by Sohanlal Jajodia alone and by nobody else. Mr. Bachawat argues that the recitals in the agreement are mere recitals of certain facts and they give no indication as to the intention of the parties and the powers conferred on the Arbitrator are the usual powers and are not any special powers which were conferred on Sohanlal Jajodia. Mr. Bachawat was has argued that summary powers sought to be conferred on the Arbitrator under Clause (5) of the operative portion of the agreement really mean nothing and are powers which are enjoyed under the Arbitration Act by all the Arbitrators. It is the argument of Mr. Bachawat that the powers conferred under Clause (6) are also usual powers enjoyed by every Arbitrator. Insofar as the power of the Arbitrator to consult lawyer and incur such costs, Mr. Bachawat has relied on the following observations of Russel on the Law of Arbitration (18th ed., pp. 267-68):

Employment of legal adviser to draw up award.

There is, however, no objection to an Arbitrator employing a legal adviser to put the award into a proper form and to advise him upon its preparation. The adviser employed should, however, be quite disinterested and unconnected with any party to the dispute. To employ an adviser, who has already acted for one of the parties or is otherwise interested, is highly inadvisable, and may lead to the award being set aside.

With regard to the power under Clause (b) to enlarge the time for making award or awards with the consent of the parties Mr. Bachawat points out that the said power is conferred on every Arbitrator u/s 28(2) of the Arbitration Act. Mr. Bachawat argues that there is nothing to indicate that the nature of the disputes requires any particular knowledge or skill, technical or otherwise, and that Sohanlal Jajodia possessed any technical knowledge or skill which might be necessary for effective adjudication of the disputes. Mr. Bachawat further points out that in the pleadings there is also nothing to suggest that parties intended to go to the arbitration of Sohanlal Jajodia and to nobody else. Mr. Bachawat points out that in the petition of Brijlal there is an assertion on the part of the Petitioner that the parties entered into the said agreement to resolve the differences and disputes by reference to arbitration and it was not the intention of the parties to the said agreement that, if the said Sohanlal Jajodia was unwilling to act as Arbitrator, the disputes and differences would not be settled by a reference to arbitration in accordance with the arbitration agreement; and in the affidavit of Onkarnath Jajodia there is an assertion to the contrary. Mr. Bachawat contends that the onus was entirely on the Appellants to establish the intention that the parties did not intend to supply the vacancy. Mr. Bachawat submits that the learned Judge was, therefore, perfectly justified in coming to the conclusion on the materials available that the parties did not intend not to fill up the vacancy. Mr. Bachawat has further argued that on a proper consideration of all relevant materials the learned Judge has come to his conclusion and this Court should not interfere with the said finding of the learned Judge.

Mr. Bachawat has next contended that it was not open to the parties to repudiate the agreement. Mr. Bachawat has submitted that the agreement in question is an agreement to refer existing disputes to arbitration and is really a submission to a named Arbitrator, and it is not a case whether future disputes are agreed to be referred to arbitration. Mr. Bachawat contends that in view of the provisions contained in Section 5 of the Arbitration Act it is not open to any of the parties to repudiate the arbitration agreement unilaterally, as such repudiation will have the effect of revoking the authority of the Arbitrator and the authority of the Arbitrator by virtue of the provisions contained in Section 5 cannot be revoked except with the leave of the Court. Mr. Bachawat has submitted that the decision of the Bombay High Court in the case of Vishwas Balwant Davare v. Bhalchandra Genesh Thakur Supra is under the old law and is not a decision under the Arbitration Act of 1940 and the said decision has not naturally considered the effect of Section 5 of the Arbitration Act. The said decision, Mr. Bachawat submits, is not good law and, in any event, is of no assistance in the instant case to which the Arbitration Act of 1940 applies. Mr. Bachawat has relied on the decision in the case of Smt. Dulari Devi Vs. Rajendra Prakash and Others, . Mr. Bachawat has pointed out that there is no averment that such repudiation was accepted, and Mr. Bachawat has contended that unless a repudiation is accepted by the other party, the repudiation cannot have the effect of putting an end to the agreement.

Mr. Bachawat has next contended that the case of the Appellants that the agreement was subsequently superseded and was given a go-bye cannot be accepted as the said case is not established. Mr. Bachawat has argued that the question whether the arbitration has been superseded and given a go-bye by any subsequent agreement between the parties is a question of fact and it is essentially for the Appellants to establish the said fact. Mr. Bachawat has drawn our attention to paras. 9, 10 and 12 of the affidavit of Onkarnath Jajodia where this allegation of supersession of the arbitration agreement and the said agreement being given a go-bye has Jajodia been made. He has submitted that no particulars have at all been furnished by Onkarnath of the alleged agreement of supersession and giving a go-bye to the said arbitration agreement. He has argued that it has not been stated as to when, where and between whom the said agreement of supersession was entered into. He has argued that the fact that the Petitioner Brijlal Jajodia filed two winding up petitions in respect of the two private limited companies does not bear out any such agreement as the disputes in relation to the said two companies were never the subject-matter of the arbitration agreement. He has drawn our attention to the arbitration agreement and has pointed out that no dispute with regard to the said two companies is covered by the arbitration agreement. He has stated that the disputes which have been referred to in paras. 2, 3 and 7 of the petition relate to disputes about investments made by the firm of Onkarnath Brijmal in the said two companies. Mr. Bachawat has commented that it was for the Petitioner to plead properly the alleged agreement of supersession and to furnish necessary evidence in support thereof, and the Petitioner has done neither, as the Petitioner was not in a position to do so because, in fact, there was no such agreement to supersede the arbitration agreement and the arbitration agreement was never given a go-bye. Mr. Bachawat has argued that the said allegation of the Appellants that the arbitration agreement has been superseded and has been given a go-bye has been categorically denied by the Petitioner Brijlal, and, on a proper consideration of the materials available, the learned Judge has correctly come to the conclusion that the said case of the Petitioner that the arbitration agreement has been superseded and has been given a go-bye has not been established. Mr. Bachawat argues that there is nothing in writing to support the case of the Appellants. Mr. Bachawat has commented that even at the hearing of the said application before the learned Judge the Petitioner never demanded this question to be tried on evidence, as the Petitioner knew that the Petitioner would never succeed in establishing the said case. Mr. Bachawat has further pointed out that the arbitration agreement for the purpose of arbitration has necessarily to be in writing as required u/s 2 of the Arbitration Act and any supersession of the said agreement should also be in writing. On this basis Mr. Bachawat seeks to distinguish the decision of the Division Bench in the case of Rungta Sons Pvt. Ltd. v. Jugometal Trg. Republike and Anr. Supra and he has submitted that the observations of the learned Judge have no application in the facts of the instant case and are also in the nature of obiter. Mr. Bachawat has further argued that whether the arbitration agreement has been superseded or not is also a matter for the Arbitrator to decide, and in support of this argument he has referred to the decision of the Supreme Court in the case of Erach F.D. Mehta Vs. Minoo F.D. Mehta, and has relied on the following observations:

We are not concerned at this stage to determine whether the agreement set up by the Respondent was in fact reached between the partners on January 17, 1968: that is a matter to be decided by the Arbitrators.

He also relied on the following observation:

Whether or not the Arbitrators are bound by the subsequent agreement and an arbitration qua such an arrangement could be deemed superseded, is not a matter which we are concerned to decide at this stage. Primarily the dispute between the parties is as to the truth of the agreement set up by the Respondent relating to the dissolution of the partnership and the dispute with regard to the agreement raised by the Appellant can, in our judgment, be referred to the Arbitrators under Clause 15 of the partnership agreement.

Mr. Bachawat has next dealt with the question of vagueness of the arbitration agreement and the vagueness of the disputes. Mr. Bachawat has contended that in the instant case there is no vagueness in the arbitration agreement. He has submitted that the arbitration agreement is quite clear and clearly and unequivocally refers all disputes and differences and matters between the parties as clearly provided in the said arbitration agreement. Mr. Bachawat contends that the agreement between the parties is quite dear and there is nothing vague in the said agreement. Mr. Bachawat has argued that the agreement between the parties was to refer the existing disputes and he has drawn our attention to the following forms in Russel on Arbitration (18th ed., p. 472, append. 6):

Agreement of Reference (short form).

We agree to refer all matters in difference between us (or to refer the disputes listed below) to the award of XY

Dated the day of AB/CD

Another Form, including certain provisions of the Act.

Memorandum of an agreement made this day of 19, between AB of etc. and CD of etc. Whereas disputes and differences have arisen and are still subsisting between the above mentioned parties.

It is hereby agreed by and between them to refer all disputes, and matters in difference between them (or to refer the disputes set out in the schedule hereto) to the award, order and final determination of XY of etc.

It is further agreed that the provisions of sections... and... of the Arbitration Act, 1950, shall not apply to the reference, and that (adding clauses that may be desired in lieu of the excluded sections of the Act, and any other clauses that may be desired in addition thereto). In witness whereof the said parties have hereunto set their hands in the day and the year first above written.

He has also relied on the decision in the case of Radha Kishan and Another Vs. Sapattar Singh, . Mr. Bachawat has further argued that an agreement which may appear to be vague will not be unenforceable if it is capable of being made certain, and in this connection he has referred to Section 29 of the Contract Act and has also relied on the decision of the Supreme Court in the case of Dhanrajamal Gobindram Vs. Shamji Kalidas and Co., and also on the decision of the Allahabad High Court in the case of Radha Kishan and Another Vs. Sapattar Singh, . Mr. Bachawat has submitted that the decision in the case of Jai Gobind Singh and Anr. v. Bagal Lal Singh Supra, relied on by Mr. Gupta, is of no assistance in the instant case, as in the said case the intention could not be gathered on a true construction of the agreement. According to Mr. Bachawat, in the Instant case, the intention is sufficiently clear and can be easily gathered on a true construction of the agreement and the agreement itself is sufficiently clear and there is no vagueness about the agreement; and even if there be any vagueness the same can easily be made certain before the Arbitrators.

Mr. Bachawat has argued that the nature of the disputes has been clearly indicated in para. 7 of the petition and there is nothing vague about the same. It is his argument that it is not necessary to set out in precise or clear terms the exact dispute between the parties in an application u/s 20 and such disputes in respect of which adjudication is necessary will be specified before the Arbitrator. Mr. Bachawat argues that Section 20 of the Arbitration Act does not require that in an application disputes will have to be specified and the rules on this Court only require that the nature of the disputes should be indicated in the petition to enable the Court to appreciate that the disputes relate to the arbitration agreement between the parties. He has pointed out the difference in the language used in Section 20 and Sections 21 to 23, particularly Section 23 in which an order of reference is made in a suit. Mr. Bachawat comments that while Section 20 does not stipulate anything as to specifying the disputes or the nature thereof, Section 23 clearly provides that the Court shall refer to the Arbitrator the matter in difference which he is required to determine. Mr. Bachawat has contended that the decision in the case of Sm. Balika Devi and Anr. v. Kedar Nath Puri Supra and the decision in the case of The Indian Miners Co. v. Northern India Lime Marketing Association Supra have no application, and Mr. Bachawat has relied on the decision in the case of Nandram Hanutram v. Raghunath and Sons Ltd. AIR 1984 Cal. 245. Mr. Bachawat has submitted that in any event the disputes which have been set out in para. 7 of the petition are clear and quite consistent with the arbitration agreement between the parties and further particulars thereof will necessarily be furnished before the Arbitrator while formulating the claims of the Petitioner.

Mr. Bachawat has next dealt with the question whether there is an arbitration agreement between the parties. He has contended that it is not open to the Appellants to urge that there is no arbitration agreement between the parties on the following grounds:

(a) This point was never taken in the affidavit.

(b) This point was never taken before the learned trial Judge.

(c) This point was not taken in the original grounds of appeal.

(d) This point has not been taken even in the additional grounds of appeal.

The Appellants are estopped from raising any such contention because of the recitals contained in the deed and on their admissions made in the affidavit-in-opposition and also in the grounds of appeal filed and also by their conduct.

Mr. Bachawat has drawn our attention to Clauses 3 and 4 of the recitals in the agreement which has been signed by all and he has contended that the said recitals operate as estoppel against the Appellants. In support of this contention Mr. Bachawat has relied on the decision in the case of Greer and Anr. v. Kettle [1938] A.C. 156. Mr. Bachawat has also relied on the following passage in Orders on Construction of Deeds and Statutes (5th ed., pp. 154-55) under the heading Recital as estoppel:

Any recital, though inaccurate in fact, may operate by way of estoppel by deed. This is a rule of evidence whereby a party and his privies are not allowed to contradict what he or they have stated in writing. In order to have this effect, the recital must be precise and not general, it must be ''certain to every intent and therefore if the thing be not precisely or directly alleged or be a matter of supposal, it shall not be an estoppel''.

''A general recital will not operate as an estoppel but the recital of a particular fact will have that effect''. So it must be clear, precise and unambiguous... where a recital does operate as an estoppel it must be a statement of a material fact, and will take effect, if at all, as between the parties to the deed and persons claiming by or through under or in trust for these parties.

Mr. Bachawat has also referred to Article 679 of Halsbury''s Laws of England (3rd ed., vol.11, p. 421).

Mr. Bachawat has contended that the intention of the parties has to be gathered on a true construction of the document and it is Mr. Bachawat''s contention that on a true construction of the document there cannot be any doubt that all the parties agreed to refer their disputes to arbitration and the document in question is intended to constitute an arbitration agreement between the parties. Mr. Bachawat has argued that all the parties are parties to the document. It is his argument that the recitals in the document and the disputes agreed to be referred to arbitration clearly indicate that the document was intended to be an arbitration agreement between all the parties. Mr. Bachawat has submitted that in Clause (1) of the operative part of the agreement the mention of ''the parties hereby of the first part and second part'' is by mistake and is a clear case of palpable mistake by inadvertence. The entire tenure and purport of the document clearly manifest that the intention of the parties to the document was to enter into an arbitration agreement between all of them. Mr. Bachawat submits that, as the intention of the parties is manifestly clear, it is not necessary to file any suit for rectification of the said document before seeking to enforce the same, and it is the submission of Mr. Bachawat that as the document in question is undoubtedly intended to be an arbitration agreement between the parties, the Court can enforce the said agreement between the parties without any rectification of the said document. In support of this submission Mr. Bachawat has referred to the decision in the case of Dent v. Clayton 33 L.J. Ch. 503. He has also relied on the decision in the case of Gwyn v. The Neath Canal Navigation Co. L.R. 3 Ex. 209.

Mr. Bachawat has argued that all the parties understood the said document to be an arbitration agreement between the parties and this fact is clearly established by the statements made in the affidavit-in-opposition. Mr. Bachawat points out that in the affidavit-in-opposition it is nowhere suggested that there was no arbitration agreement between the parties and, on the other hand, the contention raised in the affidavit-in-opposition is that under the arbitration agreement the parties intended to refer the disputes to the arbitration of Sohanlal Jajodia and to nobody else. Mr. Bachawat further comments that the grounds of appeal, particularly grounds (a), (c), (d) and (e), taken by the Appellant in the memorandum of appeal, clearly indicate that the document in question constitutes an arbitration agreement between the parties. Mr. Bachawat argues that this contention clearly proceeds on the basis that the said document constituted a valid arbitration agreement between the parties. On the question of construction of documents Mr. Bachawat has referred certain passages in Odgers on Construction of Deeds and Statutes (5th ed., pp. 55, 65 and 72). Mr. Bachawat has submitted that, in the instant case, there is a document which is undoubtedly one in writing to which all the parties are parties, and if on a true construction of the document it is held that all the parties intended to refer their disputes to arbitration, the said document must necessarily constitute an arbitration agreement in writing between the parties. Mr. Bachawat has referred to the decision in the case of In Re Mitchell''s Trusts 9 Ch.D. 5. He has also relied on the decision in the case of Baldey Jagidishwarayya and Ors. v. Kotagiri Tajalingam and Ors. AIR 1950 Hyd. 63.

Mr. Bachawat has submitted that it is not necessary to have the said mistake in the arbitration agreement rectified before making an order u/s 20 for filing he same; but if the Court feels that any such clear and obvious mistake in the document should be rectified before the same can be given effect, the Court in this very proceeding can direct rectification of such obvious mistake and it is not necessary that a suit for rectification will have to be filed. In support of his contention that in any ancillary proceeding the Court has the power to order rectification of any mistake in any document which figures in the proceeding, Mr. Bachawat has referred to the decision in the case of Mahendra Nath Mukherjee and another Vs. Jogendra Nath Roy Chaudhury, principal Defendant and others and also to the decision in the case of Asitulla v. Sadatulla and Anr. AIR 1918 Cal. 809. Mr. Bachawat has finally contended that the learned trial Judge, in the facts of the instant case, was right in making the order in directing the said agreement to be filed and in directing a reference to arbitration and he has submitted that the learned Judge has properly exercised his discretion. It is the submission of Mr. Bachawat that if the requirements of the said Section 20 are satisfied and if no sufficient cause is shown as to why the said agreement should not be filed, it is the duty of the Court to make an order directing the filing of the agreement and a reference on the basis thereof. Mr. Bachawat contends that the scope of discretion conferred on the Court in exercising its power u/s 20 is rather limited and is confined only to a consideration of the question whether sufficient cause has been shown or not. It is the contention of Mr. Bachawat that in considering whether sufficient cause has been shown or not, the Court should only consider whether there are any serious allegations of fraud or there are complex questions of law involved. In support of this submission Mr. Bachawat has referred to the decision of Mallick J. in the case of Gannon Dunkerley and Co. Vs. Union Carbide (India) Ltd., . Mr. Bachawat has argued that the question of readiness and willingness is not a material consideration in the exercise of the power conferred on Court u/s 20 as unlike the provisions contained in Section 34 of the Arbitration Act ''readiness and willingness'' has not been made a condition u/s 20 of the Arbitration Act. Mr. Bachawat submits that mere inaction for some time or delay in making the application does not establish that the Petitioner was not ready and willing to go to arbitration and there is no material to suggest that the Petitioner was not ready and willing to go to arbitration. Mr. Bachawat points out that even in the grounds of appeal no such ground has been taken by the Petitioner, and on the question of exercise of the discretion by the learned trial judge the only ground that has been taken is contained in ground (i) which reads as follows:

That the learned Judge should have taken into consideration the fact that claim, if any, with regard to disputes pending on the date of the arbitration agreement have become time barred and should have exercised the discretion against the Respondent No. 1 and rejected the application.

It is the argument of Mr. Bachawat that apart from the ground that the learned Judge was wrong in exercise of his discretion as the claim has become time barred, no other ground has been taken in the memorandum of appeal as to exercise of discretion by the learned trial judge, and Mr. Bachawat submits that in view thereof the Appellants are not entitled to urge any other ground on the question of exercise of discretion by the learned trial Judge and it is the submission of Mr. Bachawat that it is now well settled that whether any claim is barred by limitation or not is essentially a matter for the Arbitrators to decide. Mr. Bachawat argues that there is no indication that any complex questions of law are involved in the determination of the disputes which have been referred to the Arbitrator and the said disputes do not involve any question of dissolution of any firm. Mr. Bachawat has pointed out that there is no allegation of any fraud and Mr. Bachawat contends that, in the facts of the instant case, the exercise of the discretion by the learned trial Judge was proper and it is not open to the Appellants to challenge the same in appeal, particularly in view of the nature of ground taken in the memorandum of appeal. Mr. Bachawat has commented that the learned trial Judge has very carefully considered all the relevant materials and all the arguments advanced on behalf of the Appellant and has exercised his power on a proper consideration of the relevant materials after giving his considered views on the questions raised and stating his reasons for the views expressed. Mr. Bachawat has submitted that this Court should not interfere with the order made by the learned trial Judge and should uphold the same.

We propose to take up for consideration first the question whether the arbitration agreement contemplated that the disputes should be referred to Sohanlal Jajodia only and he alone will be competent to adjudicate upon the disputes between the parties, and in case of his failure, neglect or inability to act as Arbitrator, any other Arbitrator will be appointed to adjudicate upon the disputes between the parties. In any particular case when the arbitration agreement between the parties provides for a named Arbitrator to whose arbitration the parties are willing to refer their disputes, the question whether the parties intended to go to the arbitration of the named Arbitrator only and not to the arbitration of anybody else in the event of the named Arbitrator failing, refusing or neglecting to act by supplying the vacancy caused in consequence thereof, must necessarily depend on the facts and circumstances of each particular case. The mere fact that the arbitration agreement makes provision for a named Arbitrator does not establish or indicate that the arbitration agreement will become infructuous merely because the named Arbitrator for some reason or other fails, refuses or neglects to act. The real question is whether the parties intended to go to arbitration generally and to settle their disputes by arbitration and for such arbitration they name a particular person, or whether the parties intend that the particular person named and no other person will adjudicate upon the disputes between them and there will be no arbitration in the event of the said particular person who is named as the Arbitrator to adjudicate upon the disputes between the parties, fails, refuses or neglects to act. The question is essentially one of intention of the parties. The intention of the parties is to be gathered on a proper consideration of the relevant materials in appropriate cases. If the intention is made manifestly clear on a consideration of the relevant materials that the parties intended to go to the arbitration of the named Arbitrator only and to the arbitration of no other person and the parties intended not to supply the vacancy, if any, caused as a result of the named Arbitrator failing, refusing or neglecting to act, such vacancy caused cannot be filled up and the arbitration agreement cannot under such circumstances be enforced. If, however, the intention is that the parties want to go to arbitration and settle their disputes by arbitration and they select a particular person who is named in the agreement, not intending that the arbitration agreement between the parties will not be given effect to by supplying any vacancy, if caused, in the place of the named Arbitrator in the event of the named Arbitrator failing, refusing, or neglecting to act for some reason or other, the arbitration agreement will be enforced and such vacancy, if any, caused in the place of the named Arbitrator will be supplied in accordance with law. The decision of the Supreme Court in the case of M/s, Probhat General Agency v. Union of India and Anr. Supra makes the position abundantly clear. The relevant observations of the Supreme Court have been quoted earlier. The decision of the Supreme Court, in our opinion, lays down that unless it is established that the parties intend not to supply the vacancy caused in consequence of the failure, refusal or neglect on the part of the named Arbitrator to act, the vacancy will be filled up and supplied in accordance with law. This intention of the parties that the vacancy is not to be supplied must be manifestly clear. In any case if the intention of the parties not to supply the vacancy is not sufficiently clear, the vacancy will be supplied as the law presumes that the parties intend to supply the vacancy. The question is, therefore, basically the question of intention of the parties and, only in case when it is established that the parties intend not to supply the vacancy, the vacancy will not be filled up and the arbitration agreement will prove infructuous, if the named Arbitrator chooses not to act for any reason whatsoever. In all other cases when it is not established that the parties intend not to supply the vacancy, the vacancy will be supplied in accordance with law.

We are unable to accept the contention of Mr. Bachawat that unless there is an express stipulation in the agreement itself providing that there will be no reference to any other Arbitrator in the event of the named Arbitrator''s inability to act for any reason whatsoever, it must be presumed that the parties did not intend not to supply the vacancy caused in consequence of the refusal, failure or neglect to act on the part of the named Arbitrator and the vacancy must be supplied. In our opinion, the decision of the Supreme Court in the case of M/s. Probhat General Agency v. Union of India and Anr. Supra does not lay down any such proposition. We do not read the observations of the Supreme Court in the said decision to the effect--

In other words, if the agreement is silent as regards supplying the vacancy, the law presumes that the parties intended to supply the vacancy,

to mean and imply that there must necessarily be an express stipulation in the agreement itself providing that the vacancy is not to be filled up if the Arbitrator cannot or do not choose to act for any reason whatsoever. In our view, the said observations of the Supreme Court postulate that an agreement will be considered to be silent as regards supplying the vacancy, if on a true construction thereof the intention of the parties not to supply the vacancy cannot be gathered. The said observations of the Supreme Court, in our opinion, indicate that if on a true construction of the agreement the intention of the parties as regards supplying the vacancy cannot be properly ascertained and, particularly, the intention not to supply the vacancy is not established, the agreement will be considered to be silent as regards supplying the vacancy and the presumption of law that the parties intend to supply the vacancy will apply. It may be noted that in the case of Chief Engineer, Buildings and Roads, Jaipur v. Harbans Singh AIR 1955 Raj. 30 which was referred to by the Supreme Court without any disapproval in its decision in the case of Probhat General Agency v. Union of India and Anr. Supra in which the said observations of the Supreme Court on which Mr. Bachawat relies appear, the agreement did not contain any such express provision and Wanchoo C.J. (as he then was) on a consideration of the various clauses in the agreement came to the conclusion that the parties to the agreement intended not to supply the vacancy. The true test, in our opinion, is that if on a construction of the agreement the intention not to supply the vacancy in the event of the named Arbitrator failing, refusing or neglecting to act is established, the vacancy caused will not be supplied. In all other cases where such intention of not supplying the vacancy is not established, the vacancy will be supplied in accordance with law the intention has to be gathered on a construction of the agreement and the task of such construction becomes easy and simple when there is any express stipulation. In the absence of any express provision of the agreement the intention has to be gathered on a true construction of the agreement. The question, therefore, that falls for determination is whether on a true construction of the agreement in the instant case it can be held that the parties intended not to supply the vacancy, if for any reason or other Sohanlal Jajodia, the named Arbitrator, did not or could not act as such Arbitrator.

On a very anxious and careful consideration of the agreement in question, we have come to the conclusion that the learned trial Judge was not right in holding that in the instant case the parties did not intend that the vacancy would not be supplied and that the parties intended to go to arbitration generally and to have their disputes settled by arbitration. On a true construction of the agreement in question we are of the opinion that the intention of the parties to go to the arbitration of Sohanlal Jajodia only and not to the arbitration of anybody else, is made manifestly clear. The provisions of the agreement, in our view, clearly indicate that the parties intended to go to the arbitration of Sohanlal Jajodia only and the parties intended that the vacancy caused in consequence of Sohanlal Jajodia''s not acting as Arbitrator for any reason whatsoever, would not be filled up and supplied.

An arbitration agreement does not usually contain any recitals and it is not generally necessary to incorporate any recitals in an arbitration agreement. The agreement in question, however, sets out recitals and the recitals contained in the agreement purport to state the nature of consideration for the agreement. We have earlier set out the agreement in its entirety and in Clause 4 of the recitals it is categorically stated that--

With a view to resolve all disputes and differences the parties hereto have agreed to refer all the said disputes, differences and matters to the arbitration of Sri Sohanlal Jajodia of 209 Chittaranjan Avenue, Calcutta.

For the arbitration agreement it was not at all necessary to set out this particular clause. If the object of the parties was merely to name an Arbitrator and to indicate nothing more, the said object could be easily achieved by mentioning the name of the Arbitrator in the operative portion and this provision contained in Clause 4 of the recitals would be redundant and meaningless. The fact that this provision has, however, been specifically included in Clause 4 indicates, in our view, that the object of the parties was not merely to name an Arbitrator to enable the parties to have their disputes settled by arbitration but was undoubtedly something more. If the parties intended to go to arbitration generally and not to the arbitration of Sohanlal Jajodia only, the agreement in Clause 3 of the recitals after mentioning about the differences and disputes would have, and could have, simply provided that the parties intended to have the disputes and differences settled by arbitration. The very fact that a separate clause, namely Clause 4, in which the agreement ''to refer all the said disputes, differences and matters to the sole arbitration of Sohanlal Jajodia'' has been incorporated and no provision as to reference to the arbitration generally was made in Clause 3 or any other clause, indicates, in our view, that the object was not merely to name an Arbitrator and was undoubtedly something more. It is not necessary to consider whether the said provision in Clause 4 constitutes any part of the material consideration of the agreement. Whether the said provision in Clause 4 forms any part of the consideration or not, the said provision undoubtedly gives an indication of the intention of the parties. The argument of Mr. Bachawat that the said Clause 4 merely records a statement of fact in the recitals and does not indicate anything more, does not impress us. It was clearly not necessary to stipulate this provision if the only purpose was merely to record a statement of fact. It is also to be borne in mind that similar provision has been incorporated in the operative part of the agreement in Clause 5(i) thereof. It is also to be noted that in both Clauses 4 and 5(i) of the agreement ''sole arbitration of Sri Sohanlal Jajodia'' has been mentioned. The words ''sole arbitration'', in the context they have been used, also throw light on the intention of the parties in the instant case. Generally, the words ''sole arbitration'' may not be very significant. But when only one Arbitrator is named in the agreement, the use of the expression ''sole arbitration'' of the named Arbitrator may imply that the arbitration will be that of the named person only and may give an indication of the intention of the parties. The further provisions contained in Clauses (2), (3), (4), (5) and (6) of the operative part of the agreement, seeking to confer special powers on the Arbitrator, particularly the provisions contained in Clause 5 seeking to confer summary powers on the named Arbitrator, in our opinion, also reflect the intention of the parties. These provisions of the agreement, in our view, indicate that the parties intended to confer these special powers on the named Arbitrator in whom they had confidence; and they agreed to invest the Arbitrator of their choice with these special powers, as the parties had confidence in the named Arbitrator to whose arbitration they had agreed to refer their disputes. The argument of Mr. Bachawat that these provisions do not really confer any special powers on the Arbitrator is not wholly correct and is, in any event, immaterial. These provisions, whether they have the effect of conferring any special powers and privileges on the Arbitrator or not, indicate, to our mind, that the parties intended that the named Arbitrator should enjoy these powers which, according to the parties, must be special and unusual powers. Unless the object of the parties was to confer these powers as special and unusual powers, there would be no reason or necessity to incorporate these provisions in the agreement. If the parties were of the opinion that these powers were usual powers enjoyed by every Arbitrator under the Arbitration Act, there would really be no sense in incorporating the same in the agreement and the agreement would certainly not contain these meaningless provisions. Whatever may be the legal effect of these provisions, these provisions clearly have a bearing on the intention of the parties. These provisions indicate that the parties intended to confer some special powers and privileges on Sohanlal Jajodia, the named Arbitrator, to whose arbitration they agreed to refer their disputes. The fact that the parties agreed to go to the arbitration of a named Arbitrator on whom they seek to confer special powers and privileges, suggests that the parties intended to go to the arbitration of the said Arbitrator only and to the arbitration of nobody else. Seeking to confer special powers and privileges on a named person to whom the parties agree to refer their disputes for arbitration, indicates that the parties sought to confer the special powers and privileges on the particular person because of confidence or some special consideration; and the parties might not have agreed to confer any such special powers and privileges on any and every Arbitrator.

The provisions of the arbitration agreement, which we have discussed and considered, have a clear hearing on the intention of the parties. These provisions indicate that the parties agreed to go to the arbitration of Sohanlal Jajodia only and of nobody else and these provisions establish, in our opinion, that the parties intended that no person other than Sohanlal Jajodia would act as the Arbitrator. The parties, therefore, necessarily intended that the vacancy caused by reason of Sohanlal Jajodia''s not acting or being able to act as Arbitrator for any reason whatsoever, would not be supplied. It is to be noted that these provisions in the arbitration agreement in question are not the usual provisions of an arbitration agreement. Generally, an arbitration agreement speaks of disputes and differences and provides for arbitration for adjudication of such disputes and, thereafter, if somebody is to be appointed Arbitrator he is named. On a consideration of the agreement in question in the instant case, we are, therefore, of the opinion that the parties intended that the vacancy caused in the instant case would not be supplied.

The learned trial Judge while dealing with this question does not appear to have taken into consideration these provisions of the agreement. The learned Judge has placed reliance on the decision of the Supreme Court in the case M/s. Probhat General Agency v. Union of India and Anr. Supra and the decision of the Lahore High Court in the case of AIR 1933 18 (Lahore) ; and he has purported to apply the principles enunciated in the said decision. The principles of law have been clearly enunciated by the Supreme Court and are well-settled. The question, however, is one of application of the principles enunciated and the real question is the ascertainment of the intention of the parties. The intention of the parties has to be gathered on a true construction of the agreement. Dealing with this aspect, the learned trial Judge held--

Regarding the contention that there is no intention to fill up the vacancy of the Arbitrator and, as such, after the appointed Arbitrator refused to act the arbitration agreement came to an end, I am unable to agree with the same. Applying the principles laid down in the Lahore case, reported in AIR 1933 18 (Lahore) and Supreme Court case, reported in (1971) 1 S.C. 79 , I am bound to hold in the facts of this case that there was no intention of the parties not to fill up the vacancy of the Arbitrator. There was nothing technical or special in the nature of the disputes between the parties and the Arbitrator was not required to be a specialist having technical knowledge. As such, the question does not arise. From the agreement it clearly appears that primary objects of the parties were to settle their disputes by arbitration and not by arbitration by a particular person, i.e. Sohanlal Jajodia, the uncle, as I have already stated. The agreement clearly shows that the parties had no intention not to fill up the vacancy.

The learned Judge does not appear to have considered the provisions of the agreement in construing the same for ascertaining the true intention of the parties. It may or may not be true that there was nothing technical or special in the nature of the disputes between the parties. It may or may not be true that the Arbitrator was not required to be a specialist having technical knowledge. It is to be remembered that these features have a bearing on the intention and reflect the intention of the parties. If in any particular case disputes which are of a technical nature and which require for investigation technical knowledge and skill, are referred to a named Arbitrator with such knowledge and skill, it may be held that the parties intended to refer the disputes to the arbitration of the said person only and to nobody else and the parties intended that the vacancy, if caused in the place of the named Arbitrator, would not be supplied. Such a finding will be based not because the disputes were of a technical nature and the Arbitrator had technical knowledge but on the ground that the parties intended to go to the arbitration of the named person only and not to the arbitration of any other person. These peculiar features are relevant factors which the Court takes into consideration in determining the intention of the parties, and on a consideration of these particular features, the Court may come to the conclusion that the parties intended to go to the arbitration of the particular person only and to the arbitration of no other person. It is quite possible that there may be any number of other persons who may possess the same technical knowledge or skill and may possess technical skill or knowledge even in a greater measure. The fact that there might be other persons equally and, if not more competent to Jajodia adjudicate upon the disputes involving technical knowledge and skill, may not lead to the conclusion in such a case that the parties intended to go to arbitration generally and not to the arbitration of the named person, if on a relevant consideration of the agreement the intention of the parties to go to the arbitration of the named Arbitrator becomes manifest. Something technical or special in the nature of disputes between the parties and special and technical knowledge of the Arbitrator may be important considerations in ascertaining the true intention of the parties. In the instant case, the facts that the parties are closely related and the disputes between them are in the nature of family disputes which they wanted to be adjudicated upon by a common relation, namely, Sohanlal Jajodia, who happens to be the uncle of both the brothers, may also reflect on the intention of the parties and may indicate that the parties intended that Sohanlal Jajodia, a common relative would arbitrate upon their family disputes. It is not improper that members of a family in respect of their family disputes would like to have the same adjudicated upon by a member of the family and not by any outsider. These facts, namely, that the parties are closely related, the disputes are in the nature of family disputes and the named Arbitrator Sohanlal Jajodia is a common relation, being the uncle of the two brothers Brijlal and Onkarnath, may by themselves be not sufficient to establish the intention of the parties. The intention of the parties has to be gathered on a true construction of the agreement. These facts, however, do not militate against the findings on the intention of the parties which we have ascertained on a construction of the provisions of the agreement and, on the other hand, they tend to lend support to the conclusion that the parties intended to go to the arbitration of Sohanlal Jajodia only and not to supply the vacancy in his place.

This finding is sufficient for the disposal of the present appeal and, in view of this finding, it does not really become necessary to adjudicate upon the other contentions raised. In deference, however, to the arguments advanced, we propose to indicate very briefly our views on the other questions raised.

On the question of vagueness of the arbitration agreement, we are inclined to agree with the view of the learned trial Judge that the agreement in question is not vague. It is true that the Jajodia agreement itself does not specify clearly the exact nature of disputes which have arisen between the parties. That, however, does not necessarily render the agreement vague and uncertain. The agreement gives sufficient indication as to the nature of disputes and the subject-matter of disputes which are sought to be referred to arbitration. As the agreement sufficiently indicates the nature and subject-matter of disputes between the parties, the agreement cannot be considered to be vague. As, in our opinion, the agreement does not appear to be vague, it does not become necessary to deal with the cases cited from the Bar on this aspect.

On the question of the arbitration agreement being superseded or being given a go-bye, we are of the opinion that the materials on record do not establish the fact of supersession of the arbitration agreement or the fact that the arbitration agreement was given a go-bye. No particulars of any subsequent agreement between the parties by which the arbitration agreement was superseded or was given a go-bye have been furnished. The mere fact that Brijlal Jajodia presented two winding up petitions in respect of the two companies does not prove that the arbitration agreement was superseded or was given a go-bye. The subject-matter of the winding up petitions had really nothing to do with the subject-matter of the arbitration agreement. As we are not satisfied that the case of supersession of the arbitration agreement and of giving the said agreement a go-bye has been established in fact, it does not become necessary to deal with the question whether such supersession of an arbitration agreement has to be effective by a document in writing. In the facts of the instant case, the contention of Mr. Gupta that the Appellants have repudiated the agreement and are in any event entitled to repudiate the agreement is, in our opinion, not tenable. In our view, there is no justifiable material which can lead to the conclusion that the Appellants have repudiated or are entitled to repudiate the said arbitration agreement. We are not satisfied that any case for repudiation of the agreement by the Appellants has been made out. As on the materials on record the case of the Appellants of supersession and repudiation of the agreement is not made out, it is necessary to deal with the various authorities cited from the Bar on those aspects.

A plain reading of the agreement leaves no manner of doubt that the was intended to be an arbitration agreement between the parties and the mention of ''the parties hereto of the First and Second Parts'' in the operative part of the agreement contained in Clause 5(1), is clearly by mistake and is a case of palpable mistake. The intention of the parties as dearly reflected in the said document was to provide for an arbitration agreement between all the parties to the document and not between the parties of the First and Second Parts as stated in Clause 5(1) of the said document. The intention is so plain and obvious that no manner of doubt arises in coming to the conclusion that the mention of ''the parties of the First and Second Parts'' in Clause 5(1) is undoubtedly by mistake. As the intention of the parties is made manifestly clear and leaves no room for doubt on a plain reading of the document, we do not consider it necessary to refer to the various authorities which have been cited from the Bar and which we have earlier noted. These authorities lay down principles of construction which are well settled. The principles of construction have been enunciated for the purpose of ascertaining the true intention of the parties. When, however, on a plain reading of the document as a whole there is no doubt as to the true intention of the parties, the principles of construction do not really come into play. These principles are laid down for the purpose of ascertaining the true intention on a proper construction of the document when some kind of a room for doubt exists. The statements made in the affidavit of the Appellants clearly establish that the parties understood the said agreement to be an arbitration agreement between all the parties to the document.

We have held that the arbitration agreement between the parties clearly contemplated arbitration by Sohanlal Jajodia alone and by nobody else and the vacancy caused in consequence of Sohanlal Jajodia''s inability to act or not acting for any reason whatsoever will not be supplied. The arbitration agreement in question, therefore, becomes abortive and infructuous and cannot be directed to be filed. As the arbitration agreement cannot be ordered to be filed u/s 20 of the Arbitration Act, no useful purpose will be served by considering the question whether a rectification of the obvious mistake in the agreement was necessary before the same could be directed to be filed. It is, therefore, not necessary to consider the authorities cited on this aspect.

On the question of exercise of discretion by the learned trial Judge u/s 20, the only ground taken in the memorandum of appeal is that the learned Judge should not have exercised the discretion as the claims are barred by limitation. It is well-settled that the question of limitation is essentially a matter for the Arbitrator to decide. Apart from the question that no ground of readiness and willingness has been taken in the grounds of appeal, this argument of Mr. Gupta does not impress us.

In view of our decision on a construction of the agreement in question that the parties intended not to supply the vacancy caused by reason of the failure, neglect or refusal on the part of the named Arbitrator Sohanlal Jajodia to act as Arbitrator, we must hold that the arbitration agreement could not be ordered to be filed and no reference could be directed on the basis of the said agreement. The appeal, therefore, succeeds and is allowed. The order of the learned trial Judge is set aside. The application u/s 20 is dismissed. The parties will pay and bear their own costs throughout before the trial Court and also before us.

Ghose, J.

I agree.