The date of entering on reference by an arbitrator is the date on which he first applies his mind to the dispute or controversy before him.

DESHPANDE, J. :- The Controller of stores, Central Railway, Bombay had to dispose of scrap steel rails lying at various stations in Bombay and Solapur Divisions in the then Central Railway. Tenders were invited and the tender of the appellant M/s Jolly Steel Industries Pvt. Ltd. was accepted ultimately on 23-7-1966. A certain dispute as to delivery of the goods arose between them and the same was referred in accordance with the agreement to a high ranking Railway Officer as a sole arbitrator on 12-11-1971. He delivered his award on 15-5-1972. The Respondent is directed thereunder to deliver 1567 (MT) of the scrap in terms of the contract and refund of Rs. 4187 to the appellant.

2. The appellant thereafter filed Spl. Suit No. 252 of 1975 against the Respondent, the owner of Railways on 21-8-1972 before Civil Judge, Sr. Divn; Poona claiming a decree in terms of the award under Section 14 of the Arbitration Act. The Respondent also filed Misc. Application No. 632 of 1972 for setting aside the said award. The award is claimed to be (1) void, having been made, long after the expiry, of four months from the date of "entering on reference" and also (2) in breach of Sec. 14 of the Specific Relief Act in directing specific performance of the contract of delivering the steel rail scrap.

3. The Special Civil Suit and Misc. Application were tried together by the learned Judge. He accepted the contention of the Respondent that the award was a nullity on the ground so alleged. According to the learned Judge the Arbitrator must be deemed to have entered on reference on the date of issuing notices on 17-11-1971 and award on 15-5-1972 was on the face of it beyond four months therefrom. He relied on Dr. Babubhai Vanmalidas Mehta v. Prabhod Pranshankar Joshi, AIR 1956 Bom 146 in support of this view. The contention as to the breach of S.14 of the Specific Relief Act was overruled saying that goods agreed to be sold were of a peculiar nature not available in any open market. In the result, the suit of the appellant came to be dismissed while Misc. Application of the Railway Administration came to be allowed. The appellant has preferred these two appeals against the said common judgement dated 28-6-1973.

4. Mr. Warke, the learned Advocate appearing for the appellant contends that, mere issuance of notices and calling the parties to submit their statement does not involve any adjudicative or judicial process and therefore, cannot amount to entering on reference. According to him, this process of entering on reference involves some application of mind to the dispute in question as (1) to the merit thereof or to the procedure by the Arbitrator, Mere ministerial act of issuing notice on appointment cannot be equated with entering on reference. No occasion for such application of mind having arisen till the date of hearing on 21-2-1972, so contends Mr. Warke, the arbitrator cannot be said to have entered on the reference. We find much substance in this contention.

5. Undisputed facts are that the arbitrator was appointed on 12-11-1971. He issued notices to the parties on 17-11-1971. The appellant submitted its statement of case on 25-11-1971 while the Respondent submitted their statement of case on 25-1-1972. On 31-1-1972 the arbitrator issued notices calling upon the parties to appear before him on 9-2-1972 to enable him to hear and dispose of the dispute. Admittedly no hearing as such could take place on 9-2-1972. Hearing was then adjourned to 21-2-1972. Witnesses were examined on that day. The arbitrator then delivered his award on 15-5-1972 and communicated it to the parties by his letter dated 16-5-1972. A few days later on 21-8-1972 the appellant filed the Special Civil Suit in the Court for making the award a decree of the Court. Thus the arbitrator had no occasion in this case to apply his mind to any dispute touching the merits of the case or procedural aspect thereof till 21-2-1972.

6. Under Section 3 of the Arbitration Act, the first Sch