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TMI Blog1927 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... party should act as the sole arbitrator and proceed accordingly. In default of the appointment by the arbitrators, if more than one, of an umpire within 7 days of the appointment of the arbitrator first nominated, the Committee of the Calcutta Baled Jute Association should be notified accordingly and should before the reference is entered upon nominate an umpire. 2. It was also provided that if the arbitrators should fail to make their award in writing within 40 days of the appointment of the arbitrator first nominated or on or before any later date to which the arbitrators in writing signed by them might from time to time enlarge the time for making the award, the umpire should forthwith enter on the reference in lieu of the arbitrators. The award made by the arbitrators or the umpire respectively, if no appeal therefrom should be admitted by the committee, or the award of the committee made on appeal therefrom, as provided for in the Association's rules and bye-laws, should be final. The Association's rules and bye laws, which are printed on the reverse of the contract, form part of the contract between the parties. Rules 28 and 29 are as follows: 28. The committee ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 19th November 1926 the present respondents made an application, as stated above, to this Court for an order that the said award of the Committee of the Calcutta Baled Jute Association should be taken off the file of this Court. 5. Mr. Justice Pearson held that the award made by a Committee of the Calcutta Baled Jute Association sitting in an appeal on an award made by an umpire did not conform to the scheme of the Indian Arbitration Act and that the same could not be filed under the Act. He was further of opinion that having regard to the language used in Sections 10 to 15, the only persons or tribunals considered as having seisin of the arbitration were the "arbitrators or umpire," and that there was no recognition in the Act of an award by a tribunal superior to the umpire. 6. On behalf of the appellants, the argument is presented in this way : It is pointed out that the intention of the parties is to be gathered from the whole of the document, namely, the contract between the parties and that when the arbitration clause is properly construed, there cannot be any doubt that what the parties contemplated was that, in the first instance, the dispute between the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered to them. The contract contained a clause that all dispute arising out of it should be from time to time referred to two arbitrators, who should have power to call in a third, the award of any two of them to be binding and conclusive, with a proviso that in casa either party was dissatisfied with the award, they might appeal to the appeal committee of the London Corn Trade Association subject to the rules of that Association. It was argued that it was a scheme of arbitration not provided for by the Arbitration Act, 1889. Lord Esher, M.R. observed as follows: In the contract the parties had agreed, in case a dispute should arise, to refer it to the arbitration of certain persons as arbitrators and under certain conditions, if no objection was taken by ?either party to the award, it was of course to be final; but if either party wished to take the matter to an umpire or by way of appeal, as the parties call it, then the umpire was to be the appeal committee of the London Corn Trade Association. The case accordingly went to arbitration and one of the parties being dissatisfied with the award wished the case to go before the umpire. Now the parties had not only agreed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g merits of an award by the umpire and an award by the committee of the Calcutta Baled Jute Association should ever the two awards be filed together. 11. In my view the judgment and order of Mr. Justice Pearson should be set aside and this appeal allowed with costs. Buckland, J. 12. The appellants have appealed against the judgment of Mr. Justice Pearson, dated the 3rd December 1926, on an application to take an award off the file. (After setting out the the facts as stated in the previous judgment his Lordship proceded.) The respondents applied before Mr. Justice Pearson, on notice of motion, to have the award taken off the file. The learned Judge has so directed on the ground that the award is not one to which the provisions of the Arbitration Act can apply so that it may be filed thereunder. His reasons for so holding were that under the Act an award must be made by arbitrators or an umpire, that they must cause it to be filed under Section 11, that the body which made this award is not within either of the terms "arbitrators" or "umpire" and therefore it is not an award which conforms to the scheme of the Act, and it cannot be filed. 13. It may be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her respect the Act could not be called in aid Manchester Ship Canal Co. v. S. Pearson & Son Ltd. [1900] 2 Q.B. 606. 16. Reverting to the argument for the respondents, it is contended that the section is exhausted by applying it, first to the arbitrators who failed to agree, and secondly, to the umpire who made-his award on the 25th June 1926. Bale No. 29 and Bye-law No. 5, it is said, exclude the possibility of the committee being within either of these terms, for they refer to : (1) the committee; (2) the arbitrators; and (3) the umpire, whereas, the section recognises only the last two. Now the procedure laid down by the arbitration clause and the rules and bye-laws, viz. a reference to arbitrators, and then, in appropriate cases, to an umpire, which may be succeeded by an appeal to another body, is no novelty. In re Keighly Maxtead & Co. and Durant & Co. (1893) 1 Q.B. 405 is not wholly in point, because there it appears that between the arbitrators and the appeal committee of the London Corn Trade Association there was no umpire as usually understood. There is, however, this resemblance, that even though there had beer an award by arbitrators, effective until set aside, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee, the fact that there has been an award already made, valid and capable of being enforced, unless set aside, has not prevented the Court from recognizing the final tribunal as an umpire see In re Keighley Maxstead & Co. and Durant & Co. (1893) 1 Q.B. 405. 22. In the course of argument the status, of the first award in this case was touched upon, and it was suggested that-the fact of there having been two awards was an additional reason for the view submitted. I am not concerned directly with the first award, and should on any future occasion a party who has obtained an award which has since been set aside in similar circumstances-succeed in inducing those who made it to file it, I have little doubt that the law would be adequate, should occasion arise, to do justice between the rival claimants. But successive awards are not per se to be condemned and though certain observations of Lord Loreburn in Chandanmull Donald Campbell & Co. [1916] 23 C.W.N. 707 N. were based on different facts, I nonetheless think that they are apposite to this case when he observed; Sir John Simon pointed out the danger of allowing arbitrations upon arbitrations, and so ad infinitum, each arbitratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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