Judgement

Consolidated Appeals (No.73 of 1921, and No.16 of 1922) from decree of the High Court in its appellate jurisdiction (July 29, 1919, and November 20, 1919) each reversing an order of the Court in its original civil jurisdiction.

The consolidated appeals arose out of petitions in the High Court to set aside two awards of arbitrators dated respectively September 23, 1918, and March 10, 1919.

The awards were made upon claims by the appellants, Champsey Bhara & Co., to damages for the rejection of cotton delivered under contracts expressed to be subject to the rules and regulations of the Bombay Cotton Trade Association. The facts sufficiently appear from the judgment of the Judicial Committee.

A petition to set aside the first award was rejected by Pratt J., but upon appeal the award was set aside. The appeal is reported at I. L. R. 44 B. 780. Shortly stated the learned judges (Macleod C.J. and Heaton J.) held that the terms of the contracts were so referred to in the award that the Court could take cognizance of them, that upon the true construction of r. 52 of the Associations rules the respondents had the option to reject the cotton without liability to damages, and that consequently there was an error on the face of the award.

A petition to set aside the second award was allowed by Kajiji J., who considered himself bound by the above decision of the Appellate Court. Upon appeal his decision was reversed, Macleod C.J. and Heaton J. being of opinion that recitals in that award did not, as in the other award, so incorporate the terms of the contract as to entitle the Court to refer to them.

In the first case the sellers, and in the second the buyers, appealed; the appeals were consolidated.

1923. Feb. 5, 6. Upjohn K.C. and Wallach for the appellants (sellers). The award could be set aside only for error apparent on its face, or upon a document forming part of the award. A reference by the arbitrators to a document in stating the facts does not entitle the Court to look at it, unless it is made part of the decision. The rules of the Association therefore could not be referred to. [Reference was made to Hodgkinson v. Fernie (( 1857) 2 C. B. (N. S.) 189, 202.); British Westinghouse Co. v. Underground By. Co. ([ 1912] A. C. 673.); Attorney-General for Manitoba v. Kelly. ([ 1922] 1 A. C. 268, 281.)] Landauer v. Asser ([ 1905] 2 K. B. 184.) is distinguishable. In that case the arbitrator stated the effect of the relevant term of the contract, and he based his award on the construction he put upon it; if the decision has a wider application it was erroneous.

[LORD DUNEDIN referred to Holmes Oil Co. v. Pumpherston Oil Co. (( 1891) 18 R. (H. L.) 52.)]

Sir George Lowndes K.C., E. B. Raikes and Claughton Scott for the respondents (buyers). The awards were made without jurisdiction. Upon the buyers rejection of the cotton there was a repudiation, and the contract and submission ceased to operate. It is for the Court to inquire whether there was a repudiation and termination of the contract; if there was the arbitration clause does not apply. Johannesburg Municipal Council v. D. Stewart & Co. ( 1909 S. C. (H. L.) 53.); Piercy v. Young (( 1879) 14 Ch. D. 200, 207,208.); Kennedy v. Barrow-in-Furness Corporation. (Hudsons Building Contracts, vol. ii., 411, 415.) Jurisdiction could not be obtained by an erroneous finding on the part of the arbitrators May v. Mills. (( 1914) 30 Times L. R. 287.) The question has to be tried as though the buyers had sued for an injunction to restrain the arbitrators Sassoon & Co. v. Ramdutt Ramkissen Das. (( 1922) L. R. 49 I. A. 366, 373.)

[LORD DUNEDIN referred to Sanderson & Son v. Armour & Co. ( 1922 S. C. (H. L.) 117.)]

The present case is distinguishable, because on the documents there was at least a prima facie case of repudiation. Further, in Scotland a submission to arbitration acts as a complete ouster of the jurisdiction of the Court, whereas in India, as in England, it does not.

March 6. The ju