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PETITIONER: JUGGILAL KAMLAPAT

       Vs.

RESPONDENT: GENERAL FIBRE DEALERS LTD (AND CONNECTED APPEAL)

DATE OF JUDGMENT: 12/12/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHAH, J.C.

CITATION:  1962 AIR 1123            1962 SCR  Supl. (2) 101

ACT:      Arbitration-Award  set   aside-Reference   to arbitration  not  superseded-Second  reference  to arbitration, if  permissible-Arbitration Act. 1940 (10 of 1940), s. 19.

HEADNOTE:      Disputes which arose between the parties with respect to  carrying out  a contract were referred to  the  arbitration  of  the  Bengal  Chamber  of Commerce in  accordance with an agreement to refer disputes as and when they arose to the arbitration of the  Chamber. The  award  of  the  Tribunal  of Arbitration was set aside by the High Court. On an application   for   referring   the   matter   for arbitration   de   novo   another   tribunal   was constituted  which   made  a   fresh  award.   The questions which  arose for  decision were  whether after the  first award was set aside the reference to arbitration  was exhausted  and the  arbitrator had become  functus offcio  and whether  without a fresh arbitration agreement it was not possible to have  the   same  dispute  decided  again  by  the arbitrator. ^      HELD,  that  the  arbitrator  became  functus officio after  he gave  the award but that did not mean that  in  no  circumstances  could  there  be further arbitration proceedings where an award was set aside  or that the same arbitrator could never have anything to do with the award with respect to the same dispute.      Section 19  of the  Arbitration Act empowered the Court  not to  supersede the  reference and to leave the  arbitration  agreement  effective  even when it set aside the award and thereupon it would depend upon the terms of the arbitration agreement whether the  arbitration proceedings  could go  on with respect  to the  same dispute or with respect to  some   other   dispute   arising   under   the arbitration agreement.      Barangore  Jute   Factory  v.   Hulas   Chand

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Rupchand. (1958)  62 C.W.N. 734, Rallis India Ltd. v. B.  V. Manickam  Chetty, A.I.R.  1956 Mad. 369, and Firm  Gulab Rai Girdhari Lal v. Firm Bansi Lal Hansraj, A.I.R. 1959 Punj. 102, approved.      Morder v.  Paimer, (1870)  6 Ch.  App. 22 and Sutherland and  Co . v. Hannevig Bros. Ltd. [1921] 1. K. B. 336, referred to.      In the  present case  the first award was set aside but as the reference had not been superseded and the arbitration 102 agreement subsisted  it was open to the Chamber to appoint another tribunal under r. X of the Chamber Rules.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 309 and 525 of 59.      Appeals by  special leave  from the  judgment and orders  and  decree  dated  August  27,  1958, November 24,  1958, and  March  10,  1958  of  the Calcutta High Court, in Award Case No. 103 of 1955 and Appeal  from Original  order No.  26  of  1956 respectively.      N. C.  Chatterjee and  B. P.  Maheshwari, for the appellant (in C. A. No. 309 of 59).      H.N. Sanyal,  Additional Solicitor-General of India, S.  K.  Gupta  and  D.  N.  Mukherjee,  for respondent (in C A. No. 309 of 59).      N. C.  Chatterjee, M.  G.  Poddar.  and  S.N. Mukerji, for  the appellant  (in C.  A. No. 525 of 59).      H. N. Sanyal, Additional Solicitor General of India A  N. Sinha  and  P.K.  Mukherjee,  for  the respondent (in C. A. No. 525 of 59).      1961. December  12. The Judgment of the Court was delivered by      WANCHOO J.-These two appeals by special leave from the  judgments of  the  Calcutta  High  Court raise a  common question  of law and will be dealt with together.  It will  be convenient  to set out the facts  of appeal  309 and  deal with  them  in connection with  the point raised on behalf of the appellant. These  facts are  that a  contract  was entered into  between the  parties for  supply  of cornsacks  on   August  29,   1951.  The  contract contained an  arbitration clause  in the following terms:           "All   matters,   questions,   disputes,      difference  and/or   claims  arising  out  of      and/or concerning  and/or in  connection with      and/or in  consequence of or relating to this      contract whether  or not  the  obligation  of      either or both 103      parties under  this contract be subsisting at      the time  of such  dispute and whether or not      this  contract   has   been   terminated   or      purported to be terminated or completed shall      be referred  to the arbitration of the Bengal      Chamber of  Commerce under  the rules  of its      Tribunal of Arbitration for the time being in      force  and   according  to   such  rules  the

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    arbitration shall be conducted." Disputes arose with respect to carrying out of the contract and  on October  25, 1951, the respondent referred these  disputes to the arbitration of the Bengal Chamber  of Commerce  (hereinafter referred to as  the Chamber). That case was numbered 217 of 1951 in  the Chamber’s records. On April 17, 1952, the  tribunal   of  Arbitration   made  an   award disallowing the  claim  of  the  respondent.  This award was  filed in  the High  Court. On  May  25, 1953, the  award was  set aside  on the  ground of misconduct on  the part  of the  arbitrators by  a learned Single  Judge. That  order  was  taken  in appeal and  on July  8,  1954  L  the  appeal  was dismissed. Later,  leave to  appeal to  this Court was refused  and thus  the order  of  the  learned Single  Judge  setting  aside  the  award  finally stood.      Soon after  the award  had been  set aside by the learned Single Judge, the respondent addressed a letter  to the  Chamber on September 7, 1953. It was said  in this letter that as the award in case No. 217-G  of 1951  had been set aside by the High Court, the  respondent begged  to refer the matter for arbitration de novo and enclosed its statement of  the   case.  Thereupon  another  tribunal  was constituted under  the rules  of  the  Chamber  to decide the  dispute afresh. The appellant appeared before the  tribunal and  contended that it had no jurisdiction  to   make  an   award  on  a  second references in  the  same  dispute.  The  tribunal, however, proceeded  to decide  the  reference  and made the award on 104 March 15,  1955. This time the award was in favour of the  respondent. Thereupon  on August  4, 1955, the appellant  made an  application  to  the  High Court praying  that the award be set aside. In the alternative, the  appellant prayed  that the award be declared  null and  void  and  the  arbitration agreement between the parties be superseded on the ground that the second reference was incompetent.      The application was opposed by the respondent and its  contention was that this was not a second reference, and what the respondent wanted was that the Chamber  should in the event that had happened take up the dispute again and make a proper award. Reliance in support of the plea that such a course was  permissible  was  placed  on  behalf  of  the respondent on  the decision  of the  Calcutta High Court in  The Barangore  Jute Factory  Co. Ltd. v. Messrs. Hulas Chand Rupchand (1).      The  learned   Single  Judge  relied  on  the decision in  The Barangore  Jute Factory  (1)  and held that  from what  that respondent  said to the Chamber its  letter of  September 7,  1953, it was reasonably clear  that all that it wanted was that the Chamber  should in the event that had happened take up the dispute again and make a proper award. It could  not therefore  be held  because of  some language used  in the  letter that  the respondent was making a fresh reference. Consequently, it was held that  the Chamber  had jurisdiction to decide the dispute  after the  earlier award had been set aside and  what the  respondent had  asked for was

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for the  continuance of  the  original  reference, which had  not been superseded. The learned Single Judge then  went into  the question  whether there was such misconduct as would justify setting aside the award and held that there were no grounds made out which  would justify  the setting aside of the award. Consequently,  the application  for setting aside the  award  was  dismissed.  Thereafter  the appellant came to this Court for special 105 leave, which  was granted;  and that  is  how  the matter has come up before us.      The main question that has been argued before us is  that the  first award  was set aside on May 25, 1953,  the reference  was  exhausted  and  the arbitrator had  become functus  officio and it was therefore not possible without a fresh arbitration agreement to  have the  same dispute decided again by the  arbitrator, irrespective  of  whether  the letter of  September 7, 1953, amounted to a second reference or  was a  mere request for continuation of the  proceedings  in  the  original  reference, which had  proved abortive as the award originally made  had   been  set   aside.  Reliance  in  this connection is  placed on  what are  called certain fundamental principles governing all arbitrations. It is  urged that  once an  award  is  wholly  set aside,  the   arbitrator  is  functus  offico  and thereafter he  cannot function again to decide the same dispute.  This is  said to  be a  fundamental principle of  all arbitrations,  and  reliance  is placed on  a passage  in "Russel  on  Arbitration" (15th Edn.,  p. 298),  where the effect of setting aside an  award is  stated thus-  "If an  award is wholly  set   aside,  the  arbitrator  is  functus officio." Reliance  is also  placed on  Morduse v. Palmer (1), where it was held-           "An arbitrator  having signed  his award      is  functus  officio  and  cannot  alter  the      slightest error in it, even though such error      has arisen  from the  mistake of the clerk in      copying the  draft. The proper course in such      a case  is to  obtain an  order to  refer the      award back to the arbitrator." Reliance is  also placed on Sutherland and Company v. Hannevig  Brothers Limited(2).  That was a case under the  English Arbitration  Act of  1889 which provided that  an arbitrator  could correct  in an award any clerical mistake or error from any 106 accidental slip  or omission  and had  thus varied the rule  laid down  in Mordue’s  case(1). It  was however held in that case that the correction made by the  arbitrator was  not  justified  under  the Arbitration Act.  These cases  in our opinion have not much  bearing on the question before us. It is true that  generally speaking,  an  arbitrator  is functus officio  after he  has made the award; but this only  means that  no power  is  left  in  the arbitrator to  make any change of substance in the award  that   he  had   made  (except  in  certain circumstances which  have  been  provided  in  the law). What  we have  to see however are the scheme and the  provisions of  the Arbitration Act, No. X of 1940 (hereinafter called the Act), which govern

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the proceedings in arbitration in this case. These provisions are  to be found in Chap. II of the Act which deal  with "arbitration without intervention of Court."      Sections 3  to 7 deal with various aspects of arbitration  agreements  with  which  we  are  not concerned in the present case. Sections, 8, 11 and 12 deal  with the  power of  a court to appoint or remove arbitrators  or umpire.  Sections 9  and 10 deal with  the right  of a  party to appoint a new arbitrator or  sole arbitrator  and also  with the appointment of  an umpire.  Section 13  deals with the power of the arbitrator and s. 14 provides for the signing  of the  award and  giving  notice  in writing to  the parties  of the making and signing of the award and filing the same in court. Section 15 gives power to the court to modify the award in the circumstances  mentioned therein.  Section  16 gives power  to the  court to  remit the award for reconsideration   under   certain   circumstances. Section 17  provides for  delivery of  judgment in terms of  the award  where the court sees no cause to remit  the award or to set it aside. Section 18 provides for  making interim  orders.  Section  30 which is  in Chap. V sets out the grounds on which an award may be set aside. 107 Finally, we come to s. 19, which is the section on the interpretation  of which  the decision of this case depends. Section 19 reads as follows:-           "Where an  award has  become void  under      sub-section(3) of  section 16 or has been set      aside, the  court may  by order supersede the      reference and  shall thereupon order that the      arbitration agreement  shall  cease  to  have      effect  with   respect  to   the   difference      referred." Before we  consider what  s. 19; provides we might advert to  two matters.  In the first place, it is not  disputed   before   us   that   the   English Arbitration  Act  does  not  contain  a  provision similar to  s. 19; the consequence of this is that the decisions on English Courts may not be of much assistance on this particular aspect of the matter before  us.   Secondly,  there   was  a   parallel provision in para. 15(2) of Sch. II of the Code of Civil Procedure  before 1940 as to the order to be passed by  the court  when setting aside an award, which was in these terms:-           "(2) Where  an award  becomes void or is      set aside  under clause  (1), the court shall      make an order superseding the arbitration and      in such case shall proceed with the suit."      It will be seen from this provision that when a court  set aside  an award  under  Sch.  II  the reference had to be superseded also, and the court was  enjoined   to  proceed  with  the  suit,  the provision being  contained in that part of Sch. II which dealt  with arbitration  in suits.  But  the provision also  applied to  cases covered by para. 17 read  with para.  19 and also by implication to arbitrations outside  court under  para 21. But s. 19 of  the Act  has clearly  made a departure from the parallel provision contained in Sch. II, para. 15 (2)  and we  have therefore  to see what is the

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extent of the departure made by it.      It is  clear from  s. 19 that there are three matters  which   have  to  be  borne  in  mind  in arbitration 108 proceedings.  There   is  first   the  arbitration agreement. Next comes the reference to arbitration and lastly  the award.  Section 19  provides inter alia that  where an  award has been set aside, the court may  by order  supersede the  reference  and shall  thereupon   order  that   the   arbitration agreement shall  cease to have effect with respect to the  difference referred. The section therefore leaves it  to the  discretion of the court when it decides  to   set  aside   an  award,  whether  to supersede  the   reference  or  not.  It  may  not supersede the  reference  at  all  in  which  case though the  award may  be set  aside the reference will continue.  But if it supersedes the reference it  has  also  inconsequence  to  order  that  the arbitration agreement  on the  basis of  which the reference was made would cease to have effect with respect to  the difference  referred. It  is  only therefore when  the court  orders supersession  of the reference  that the  consequence follows  that the arbitration  agreement ceases  to have  effect with  respect   to  the   subject  matter  of  the reference. The  intention of  the  legislature  in making this  change in  the consequences to follow the setting  aside of an award is clear in as much as the  provision recognises  that  there  may  be different kinds of arbitration agreements, some of which might  be exhausted by the reference already made and  the award  following thereon  which  has been set  aside while  others may  be  of  a  more comprehensive   nature    and   may    contemplate continuation of the reference relating to the same dispute  or   successive  references  relating  to different  disputes  covered  by  the  arbitration agreement. The  legislature  has  therefore  given discretion to the court under s. 19 to decide when it sets  aside an  award what  the consequences of its order  setting aside the award will be. If the court finds  that the  arbitration agreement is of the kind  which exhausts  itself after  the  first reference is made or if it finds on account of the reasons 109 which have impelled it to set aside the award that there  should  be  no  further  reference  of  the dispute to arbitration, the court has the power to supersede the  reference and  thereupon order that the arbitration  agreement  shall  cease  to  have effect with respect to the difference referred. On the  other  hand  if  the  court  finds  that  the arbitration agreement  is of  a general nature and contemplates continuation  of the  reference  with respect  to   the  same   dispute  or   successive references  with  respect  to  different  disputes arising  under   the  terms   of  the  arbitration agreement it may not supersedes the reference with the result  that the  reference  as  well  as  the arbitration  agreement   on  which   it  is  based survives. In  such a case there can in our opinion be no  doubt that  there  the  reference  and  the

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arbitration agreement survive the same dispute may go before  the arbitrators again provided there is machinery provided  in the  arbitration  agreement which makes  this possible.  It will  thus be seen that the  discretion vested  in the court under s. 19 depends  upon the  nature  of  the  arbitration agreement in  particular cases  and  it  is  on  a consideration of  those terms  that the  court may decide in  one case to supersede the reference and order the  arbitration agreement  to cease to have effect after taking into account the reasons which have impelled  it  to  set  aside  the  award  and another not  to set  aside the  reference with the result that  the  reference  and  the  arbitration agreement  subsist;   and   if   the   arbitration agreement provides  for machinery  to have further arbitration on  the same dispute or other disputes arising under  the  arbitration  agreement  it  is permissible to  have further  arbitration  on  the same  dispute   or  other   disputes.   The   same discretion is  given to  the court with respect to arbitration under  Chap. III  of the  Act  dealing with "arbitration  with intervention  of  a  court where there  is no  suit  pending,"  as  s.  20(5) provides that  after the arbitration agreement has been ordered  to be  filed, the  arbitration shall proceed 110 in accordance  with, and shall be governed by, the other provisions  of the Act so far as they can be made applicable.  Further we  find that  the  same discretion has  been given  to the  court  in  the matter of  arbitration  in  suits  provided  under Chap. IV,  was s. 25 provides that "the provisions of the  others Chapters  shall, so far as they can be made  applicable, apply  to  arbitration  under this  Chapter."   The  proviso   to  s.  25  gives discretion  to   the   court   in   any   of   the circumstances mentioned  in ss.  8, 10, 11 and 12, instead of  filling up the vacancies or making the appointments, to  make an  order  superseding  the arbitration and  proceed with  the suit, and where the court  supersedes the  arbitration under s. 19 it shall  proceed with the suit. The scheme of the Act therefore  is whether the arbitration is under Chap.  II,   Chap.  III   or  Chap.  IV,  to  give discretion to  the  court  to  decide  whether  to supersede the  reference or  not. Where it decides to supersede  the reference  it has  to order that the arbitration  agreement  shall  cease  to  have effect with  respect to  the difference  referred; but  where   it  decides   not  to  supersede  the reference and  the reference  and the  arbitration agreement  subsist   and  if  there  is  machinery provided in the arbitration agreement for making a further  reference  or  for  continuing  the  same reference, further arbitration can take place. The contention  therefore   urged  on  behalf  of  the appellant that  once the  award is  set aside  the arbitrator    becomes    functus    officio    and consequently there  can be  no  further  reference with respect  to the  dispute decided by the award which is  set aside,  must fail  in  view  of  the specific provisions of s. 19 of the Act.      We have already said that generally speaking,

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the arbitrator  becomes functus  officio after  he has given  the award;  but that  does not  in  our opinion mean that in no circumstances can there be further arbitration proceedings where an award 111 is set aside or that the same arbitrator can never have anything to do with the award with respect to the same  dispute. Section  13 (d),  for  example, gives power  to the  arbitrator to  correct in  an award any  clerical mistake  or error arising from any accidental  slip or  omission. Further  s.  16 gives power  to the  court; to  remit the award to the  arbitrator  for  reconsideration.  Therefore, when it  is said  that the arbitrator is generally functus officio  after he  has made  the award, it only means that he cannot change that award in any matter of  substance himself.  But that  does  not take away the court’s power to remit the award for reconsideration  under  s.  16  or  to  refuse  to supersede the  reference even  though the award is set aside  leaving it  to the parties to take such further action under the arbitration agreement for further   arbitration if  it is  possible so to do under  the   terms  of  a  particular  arbitration agreement.  We   are  therefore  of  opinion  that whatever may  be the  position in the absence of a provision similar to s. 19 of the Act there can be no doubt  that s.  19 gives power to the court not to  supersede  the  reference  and  so  leave  the arbitration agreement  effective even when it sets aside award and thereupon, it will depend upon the terms  of   the  arbitration   agreement   whether arbitration proceedings  can go on with respect to the same  dispute or  with respect  to some  other disputes arising  under the arbitration agreement. This was  the view  taken in  the  Barangore  Jute Factory case(1).  Similar view  has been  taken in Rallis India Ltd. v. B.V. Manickam Chetti & Co.(2) and in  Firm Gulab Rai Girdhari Lal v. Firm, Bansi Lal  Hansraj(3).   We  think  that  this  view  is correct.      It is  not in  dispute that the reference was not superseded in this case when the award was set aside in May 1953. It will therefore depend upon 112 the terms  of the  arbitration agreement  in  this case whether  it  was  possible  to  have  further arbitration with  respect to  the same dispute. We have already  set out  the term  in  the  contract relating to  arbitration and it is clear that term is very  wide in  its amplitude  and  contemplates reference of  disputes  as  and  when  they  arise between the parties to the Chamber. Further as the Chamber is constituted the arbitrator in this term of the  contract and  as the Chamber consists of a large number  of members and has its own rules for constituting arbitral  tribunals.  It  is  in  our opinion quite  possible on  the terms  of such  an arbitration  agreement   to   constitute   another tribunal to  decide the  same dispute,  where  the reference remains  pending and  has not  been  set aside under s. 19, provided there is machinery for appointing different persons as arbitrators  under the rules of the Chamber. It is however urged that this is a second reference of the same dispute and

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this at  any rate  is not contemplated by the term relating to  arbitration in  the contract.  We are not impressed  by this  argument. Stress  in  this connection  has   been  laid   on  the  letter  of September 7,  1953, in  which the  respondent said that it begged to refer the matter for arbitration de novo.  Those words  do not  in our opinion show that a  second reference  was being  made  of  the dispute. The  letter begins  by  saying  that  the Chamber was aware that the previous award had been set aside.  It was in those circumstances that the respondent told  the Chamber  that  it  begged  to refer the  matter for  arbitration de novo. In the context this can only mean that the respondent was asking the  Chamber to take up the reference again as the  reference  had  not  been  superseded  and arrange to  continue the  arbitration  proceedings further. The only question therefore 113 that will  arise is whether under the rules of the Chamber it  was  possible  to  constitute  another tribunal to  consider this  dispute again. If that is possible,  we fail  to see  why the arbitration proceedings  should  not  go  on  further  as  the reference was not superseded in this case, and the arbitration agreement subsisted.      This brings  us to  the rules  of the Chamber relating to  the appointment of arbitral tribunal. It is  urged on behalf of the appellant that there is no  provision in these rules for appointment of an arbitral  tribunal where  an award  made by  an earlier tribunal is set aside say, for misconduct. If  this   contention  is   a  justified  it  will certainly  not  be  possible  to  appoint  another arbitral tribunal  to decide  the reference  after the award  made on  it by the earlier tribunal set aside. Reliance however is placed on behalf of the respondent on rr. V, VII and X made by the Chamber for the  appointment  of  arbitral  tribunals.  It appears that no reliance was placed on r. V in the High Court; reliance however was placed on rr. VII and X  in the High Court. The High Court held that r. VII  justified the  appointment of the tribunal in the  present case,  though it  was of  the view that r.  X would  not justify it. The appellant on the other  hand contends  that none  of the  three rules  authorises   the  appointment  of  a  fresh tribunal after an award is set aside and therefore there is  no machinery  under  the  terms  of  the arbitration agreement by which the arbitration can be further  carried on, it being not disputed that the earlier  tribunal whose  award  had  been  set aside on  account of misconduct could not be again appointed.      Rule V(1)  provides for  an  application  for arbitration. Rule  V(2) lays down that "on receipt of such application the Registrar shall constitute a court  for the  adjudication of the dispute." It is urged on 114 behalf of  the respondents  that a  fresh tribunal could be  constituted under  r. V  (2)  after  the award of  the earlier tribunal had been set aside, as the  Registrar is  authorised to  constitute  a court on  receipt of an application by the Chamber

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under r.  V (1).  We  are  of  opinion  that  this contention is  not well founded. Rule V(2) applies to the  first appointment after the receipt of the application and  that appointment was made in this case and the award of the tribunal appointed under r. V (2) was set aside. Rule V (2) does not in our opinion contemplate a second appointment after the award of  the court  appointed under it on receipt of  the   application  has  been  set  aside.  The respondent cannot  sustain the  appointment  of  a fresh tribunal under r. V(2).      Rule VII has been pressed into service by the High Court in this connection and it has been held on the  basis of the Barangore Jute Factory’s case (1) that  r. VII  justified the  appointment of  a fresh tribunal  in a  case where  an award made by the earlier  tribunal is  set aside.  In that case the  High   Court  was   conscious  that   it  was stretching  the   rule  in   applying  it  to  the situation where  an award  is set  aside. Rule VII says that  "if the  Court have allowed the time or extended time  to expire without making any award, and without having signified to the Registrar that they cannot  agree, the Registrar shall constitute in manner  aforesaid  another  Court  which  shall proceed with  the  arbitration  and  shall  be  at liberty to  act upon the record or the proceedings as then existing and on the evidence, if any, then taken  in  the  arbitration  or  to  commence  the arbitration de  novo." Rule  XXV  makes  provision that the award shall be made within four months or within such  extended time  as may  be  agreed  to between the  parties to  the reference.  Rule  VII obviously refers  to a  case where the time or the extended time 115 allowed  to  the  tribunal  has  been  allowed  to expire; it  cannot  refer  to  a  case  where  the tribunal has  made the award within the time fixed but later  that award  is set  aside by  court. It would in our opinion be stretching the language of r. VII  too far  to make  it applicable  to a case like the  present. We  cannot therefore agree with the  High   Court  that   r.  VII   justified  the appointment of  a fresh  tribunal in  the  present case.      This brings  us  to  r.  X.  The  High  Court thought that  this rule could not apply. Rule X is in these terms:-           "If any  appointed arbitrator  or umpire      neglects or  refuses to act or dies or become      incapable  of   acting  the  Registrar  shall      substitute and  appoint a  new arbitrator  or      umpire as the case may be in manner aforesaid      and the  Court so reconstituted shall proceed      with the  arbitration with  liberty to act on      the  record   of  the   proceedings  as  then      existing and  on the  evidence, if  any  then      taken in  the arbitration, or to commence the      proceedings de novo." We  are  of  opinion  that  it  was  open  to  the Registrar under  this  rule  to  appoint  a  fresh tribunal because  the earlier  tribunal had become incapable of  acting in  view of the fact that its award  had   been  set  aside  on  the  ground  of

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misconduct. It  has been  urged on  behalf of  the appellant that  the words  "becomes  incapable  of acting" apply  only to  physical inability  to act and  in   particular  stress   is  laid   on   the collocation of  words where these words follow the word "dies".  We are however of opinion that these words cannot  take  their  colour  from  the  word "dies" and  are a  separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become  incapable   of  acting   because  of  some physical cause,  for example,  he may  fell ill or may go mad and so 116 on. But  we do  not think  that these  words  only refer to physical incapacity; in our opinion, they refer  to   any  kind  of  incapacity,  which  may supervene   after    the   appointment    of   the arbitrators, even to an incapacity from before but which was  not known  to the  parties, or  in this case to  the Chamber before they are appointed. We may in  this connection  refer to  the opinion  of Russel ("Russel  on Arbitration",  15th Edn, p.7), where dealing  with similar  words in  s. 10(b) of the English  Arbitration Act  of 1950, it has been said as follows:-           "It   would   appear   that   the   word      ’incapable’ in  section 10(b)  must refer  to      some incapacity arising after the date of the      appointment, or  not known  to the parties at      that date." Clearly therefore, the words "becomes incapable of acting" do not merely refer to physical incapacity but to  any kind  of incapacity which arises after the appointment  or which  was  there  before  the appointment but was not known to the parties or to the Chamber  in this  case. Take, for example, the case of persons appointed by the Chamber to decide a dispute;  after the appointment, one arbitratior acquires an  interest in the subject-matter of the dispute. Obviously  such a  person must be held to have become  incapable of acting even though there is no  question of  any physical incapacity on his part. We  are therefore  of opinion that the words "becomes incapable  of acting" in r. X are of wide amplitude and  do  not  refer  to  cases  only  of physical incapacity  but to any kind of incapacity arising after  the appointment  or even before the appointment provided  it  was  not  known  to  the parties, or to the Chamber in the present case. We cannot therefore agree with the High Court that r. X will not apply to the present case.      What has  happened in  this case  is that the previous tribunal made an award. That award has 117 been set  aside on  account of  misconduct. In the circumstances we  are of opinion that the previous tribunal  has   become  incapable   of  acting  as arbitrator to  decide this  dispute because of its misconduct. Further  as the reference has not been superseded and the arbitration agreement subsists, it was  in our opinion open to the Chamber, on the request of  the  respondent,  to  appoint  another arbitral tribunal  under r. X. Therefore, as there is a  machinery by  which fresh arbitrators can be

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appointed  according   to   the   terms   of   the arbitration agreement  read with  the rules of the Chamber  and   as  the   reference  has  not  been superseded, the  appointment of  a fresh  tribunal and the  carrying on  of the  arbitration  further were  within   the  terms   of   the   arbitration agreement.      No other  point has  been urged  on behalf of the appellant  in this  appeal  to  challenge  the correctness of  the decision  of the  High  Court. Therefore, appeal No. 309 must fail.      Turning now  to appeal  No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except  one. The  difference is  that  in this  case   the   appellant   objected   to   the appointment of a fresh tribunal and an application was made  under s.  33 of  the Act  paying for the relief that no arbitration agreement existed after the earlier award had been set aside and therefore there could be no further arbitration. For reasons which we  have already  given this contention must fail, for  it is  not in  dispute that this appeal also when  the earlier  award was  set aside there was no  supersession  of  the  reference  and  the arbitration agreement  is in  the same terms as in the other  appeal. What  happened in this case was that  the   learned  Single   Judge  allowed   the application  and  revoked  the  authority  of  the Chamber to  arbitrate. There was then an appeal by the present respondent 118 which was  allowed on  the basis  of the Barangore Jute  Factory  case  (1).  Thereupon  the  present appeal has  been brought  to this Court by special leave. It  has been  contended on  behalf  of  the appellant that  the order  under  s.  33  was  not appealable in  view of  the provisions of s. 39 of the Act  and  therefore  the  High  Court  had  no jurisdiction in  appeal to  set aside the order of the  learned   Single  Judge.  This  point  as  to jurisdiction was not taken before the appeal court nor  has  it  been  taken  in  the  special  leave petition to  this Court  or in  the  statement  of case. It  seems that the appeal was entertained in the High  Court on  the view  that an  appeal  lay under the Letters Patent from an order of a Single Judge. Even  if we were to entertain this argument the respondent will be entitled to ask for special leave to  appeal against  the order  of the Single Judge and  we will  be justified  having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay  and in passing the same order which has been passed by the High Court in appeal. Technical requirements  of   procedure  may   of  course  be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we  have already  given  the  order  of  the appeal court  is right.  There  is  no  reason  to interfere with  it and  this appeal will also have to be dismissed.      We therefore  dismiss the appeals with costs- one set of hearing costs.                                  Appeal dismissed. 119

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