Judgement

Appeal (No. 65 of 1930) from a decree of the High Court in its appellate jurisdiction (September 12, 1927) reversing a decree of the Court in its original jurisdiction (May 6, 1926) and setting aside the award of an umpire dated February 19, 1923, in an arbitration between the parties.

The facts giving rise to the appeal appear from the judgment of the Judicial Committee.

The High Court (Ramesam and Cornish JJ.), reversing the decision of Waller J., had set aside the award in question upon the grounds (1.) that there was not a valid agreement between the parties to submit the disputes between them to arbitration, (2.) that the umpire had misconducted himself, within the meaning of the Indian Arbitration Act, 1899, s. 14, in that before making his award he had taken legal advice without the consent or knowledge of the parties.

1931. June 25, 26. Sir Thomas Inskip K.C. and Van den Berg for the appellants. The fact that the umpire took legal advice as to the principles of law applicable was not in itself misconduct. It does not appear that he subordinated his mind to the advice received, so as to delegate the duty of deciding between the parties ; that being so there was no misconduct justifying setting aside the award Rolland

v. Cassidy (( 1888) 13 App. Cas. 770, 776.); Eads v. Williams (( 1854) 4 D. M. & G. 674.); Emery

v. Wase ((1801) 5 Ves. 846.) ; Anderson v. Wallace ((1835) 3 C. & F. 26, 41, 43.) ; Ellison v. Bray. (( 1864) 9 L. T. 730.) The case first mentioned was followed by the Board in Buta v. Lahore Municipal Committee. (( 1902) L. R. 29 I. A. 168.) The Appellate Court relied upon Dobson v. Graves (( 1844) 6 Q. B. 637, 647.), but in the light of the above cases the language there used must be read in reference to the facts of the case, not in its widest sense. Even where there has been technical misconduct an award in a commercial arbitration should not be set aside unless it appears that injustice has been done ; that is not here the case In re Olympia Oil and Cake Co. ([ 1918] 2 K.

B. 771,778.) Having regard to the previous decision of the High Court, and its affirmance by the Privy Council, it was res judicata that there was a valid submission to arbitration. The award now in question was to the same effect as that which was so affirmed. Further, the contracts themselves embodied the arbitration clause by reference.

Dunne K.C. and Horace Douglas for the respondent. The question whether the submission to arbitration applied to the dispute was a vital one. The umpire was asked to refer that question of law to the Court, and had power to do so under s. 10 of the Act. It was misconduct to refuse to do so and then take legal advice upon the question. The High Court rightly applied the judgment of Lord Denman in Dobson v. Graves (( 1844) 6 Q. B. 637.) and set aside the award. In the circumstances of the case there was no res judicata affecting the respondent. Sir Thomas Inskip K.C. replied.

July 23. The judgment of their Lordships was delivered by

LORD TOMLIN. The question in dispute in this appeal is whether the award of an umpire dated February 19, 1923, should be set aside or not.

Waller J., sitting on the original side of the High Court of Judicature at Madras on May 6, 1926, dismissed an application of the present respondent to set it aside. By a decree dated September 12, 1927, of the High Court (appellate jurisdiction) the decision of Waller J. was reversed and the award was set aside. The appellants thereupon appealed to His Majesty in Council to have the judgment of Waller J. restored.

The appellants are seed and grain merchants carrying on business in Karachi.

On April 25, 1918, an agreement in writing was entered into between the appellants of the first part and R. K. Rajagopala Ayyar (since deceased) and the respondent of the second part. At that time Rajagopala and the respondent were carrying on business together in partnership as Messrs. R. K. Rajagopala Ayyar and Brother, and Rajagopala was mana