Case: Reserve Bank Of India Vs. S.S. Investments

may remit the award to the arbitrators for correction." 15. While on Russell on Arbitration, we may refer with advantage to the discussion on what constitutes disagreement. It is said (p. 241) "The question what constitutes such a disagreement between arbitrators as will entitle the umpire to make an award ... is one upon which no definite rule can be laid down. It has been held that there was such a disagreement where one of the arbitrators declined to proceed further with the case, and also where one arbitrator refused to permit certain evidence to be produced which his fellow arbitrator declared to be essential, and in another case it was decided that non-agreement on important points was equivalent to disagreement." * One of the cases referred to by Russell in this context is Winteringham v. Robertson ((1858) 27 LJ Ex 301). A submission provided that the matters in difference should be referred to two arbitrators, and in case they should not agree it should be lawful for them to appoint another person to be umpire or to concur with them in considering the matters referred. The arbitrators appointed an umpire, who sat with them throughout the reference. On the arbitrators submitting their views to the umpire, it appeared that they were not agreed on important points, and the umpire formed the opinion that there was no likelihood of their agreeing. The umpire then made his award in favour of the plaintiff. The defendant objected to the award on the ground that it had been made before the arbitrators had disagreed. It was held that the non-agreement of the arbitrators was equivalent to disagreement; that on their non-agreement as to some of the matters in dispute the umpire could make an award as to all these matters, and that his award should be enforced. 16. In the present case it is not in dispute that respondents 2 and 3 were present at all the meetings in the arbitration proceedings. It is urged that there had been no joint deliberation and application of mind by them so that it cannot be said that there was any disagreement between them and respondent 4 was, therefore, not entitled to enter upon the reference. 17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf 18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire 19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitrators 20. Mr. Sibal drew our attention to the written submission made by counsel on behalf of the appellant and respondent 1 to respondent 4 extending time for him to make the award. In Mr. Sibals submission, there was a categoric statement therein that respondent 1 had waived its objection to respondent 4 entering upon the reference as umpire. Mr. Bobde submitted, on the other hand, that the protest made by respondent 1 about respondent 4 entering upon the reference as umpire continued. In his submission, respondent 1 could not have acted otherwise because the authorities laid down that it is not open to a party to abstain from appearing before an arbitrator or umpire, although he objects to that arbitrator or umpire having entered upon the reference. The authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. Regard must be had, in our view, to the ordinary course of conduct of judicial and arbitration proceedings, especially considering the fact that one of the arbitrators was a former Judge and the other was a member of the Bar. Discussions do ordinarily take place during the course of the arguments between counsel and the Judges or arbitrators. Questions are asked by the Judges or arbitrators which would indicate their minds to counsel and to each other. Discussions also, ordinarily, take place between the Judges or arbitrators inter se during the course of the hearings and immediately before or after the same. It is not, therefore, imperative that arbitrators should meet upon the conclusion of the hearings to discuss the matter and agree to an award or agree to disagree in that behalf18. That there had been divergent views expressed even during the course of the present arbitration hearings is clear from the letter written by the respondent 3 to respondent 2 for he says, "We could have sat together and discussed matters before writing the award even if our points of view or judgments varied or eve differed on any issues or point for determination". That the respondent 2 wrote out his own award indicates that he had no doubt in his mind that the differences between him and respondent 3 about the case before them were irreconcilable. As has been said, disagreement can take a variety of forms. Upon the facts of this case we are of the view that there was a disagreement between respondents 2 and 3; the fact of such disagreement was conveyed to the parties when respondent 2 sent them his award and respondent 4 then became entitled to enter upon the reference as umpire19. We think that the High Court was not justified in placing reliance upon the fact that there was no plea on behalf of the appellant that there was a joint consultation between respondents 2 and 3 after the submission of the arguments by both sides and before the passing of the award by respondent 2, which, in its view, established that there was "no joint deliberation or united consideration" by respondents 2 and 3. Parties to an arbitration cannot be expected to know that such joint consultations or deliberations had taken place between the arbitratorsThe authorities do not say that the party so objecting is obliged to extend the time for the arbitrator or umpire to make the award. At any rate, the agreement to extend the time for respondent 4 to make the award should have been qualified by the respondent 1 and should have reserved to it the right to agitate its objection to the fourth respondents jurisdiction. The terms of the joint submission made by counsel for the appellant and respondent 1 to respondent 4 are unqualified and we think that, in the circumstances, respondent 1 must be held to have waived its objection to the entering upon the reference by respondent 4 as umpire