Lalit Mohan Sharma, J.

1. This is an appeal under section 39 of the arbitration Act (hereinafter referred to as the Act) directed against the decision of the 2nd Additional Subordinate Judge, Ranchi, upholding an award. The appeal was heard by a Division Bench, but as the learned Judges took divergent views, it has been placed for hearing before me by an order of the Hon ble the Chief Justice.

2. There was an agreement between the appellant and the respondent for execution of certain works and a reference of certain disputes arising between them was made by them to two Arbitrators in 1972. The letter of reference by the appellant nominating Mr. K. N. Mehra at its Arbitrator is printed at page 1 of the papertook and if indicates that the dispute was on five counts, as detailed in Annexure a. The second and third items have been further divided into sub-items. The total claim made by the responded amounted to Rs.2,55,600/-. The respondent nominated Mr. S. N. Ganodia, advocate, as its Arbitrator. The Arbitrators were called upon to give a joint award on all claims "after deciding whether claims referred to at 2, 3, 4, 5 of annexure a are or are not referable to arbitration in terms of the contract. " the Arbitrators, by their order dated 6th February, 1973, held that the claims nos.2 to 5 were referable under the arbitration agreement and the parties were informed of this decision. The Arbitrator, however, could not come to an agreed conclusion about the merits of the claims and they appointed an umpire as is evident by their letter dated 2nd November, 1973 at page 6 of the paper book. The Umpire made an award directing the appellant to pay a sum of Rs.80,000/- besides interest and the court below was moved for making it a rule of the court. The case was registered as a title suit and the appellant (defendant) filed a written statement pleading that the award was invalid, inter alia, on the ground that the Umpire was under a duty to have decided, in the first instance, whether the claims under items 2 to 5 were referable to arbitration or not, which he failed to do. It is said that his right to give his decision on merits, being dependant on the preliminary question, the award is void. Objection was also taken to the grant of interest and to the lump sum award allowed against the different claims made item-wise. The court below overruled the objections and decided the proceeding in favour of the plaintiff-respondent. The defendant now has appealed.

3. When the appeal was placed for hearing before the Division Bench. Mr. K. D. Chatterjee the learned counsel for the appellant, pressed only one point in support of the appeal, namely, that the award was invalid in absence of a decision by the Umpire on the question whether the claims under items 2 to 5 were referable for arbitration or not. The court below has held that since the two Arbitrators before referring the matter to the Umpire had decided the issue in affirmative, the defendants objection had no merit. In this court, both Mr. Justice B. P. Jha and Mr. Justice B. S, Sinha, who constituted the Division Bench, held that the order dated 6th February, 1973 passed by the two Arbitrators did not dispose of the preliminary question and the entire dispute including the question of referability had to be decided by the Umpire. Mr. Justice B. P. Jha further held that by his award the Umpire must be deemed to have decided the question of referability of the items 2 to 5 is in the affirmative and his award must, therefore, be accepted as valid. Mr. Justice B. S. Sinha held that in the facts and circumstances of the present case, it was not possible to inferentially hold that the Umpire must have decided the preliminary question against the appellant in the facts and circumstances of the present case, specially when an award to the tune of Rs.80,000/- only has been made.

4. When the hearing of the case was taken up before me, Mr. K. D chatterjee again made it clear that he was ch