A defect in jurisdiction cannot be waived, and arbitrators are guilty of misconduct if they do not satisfy themselves as to the quality of the goods in a quality arbitration.

( 1 ) THIS is an application for setting aside an award. The petitioner's case is that there was an agreement for reference of disputes arising on or out of the contract to arbitration under the rules of the Calcutta Grain Oilseed and Rice Association. Rule 13 is as follows :"if the Court have allowed the time or extended time to expire without making any award and without having signified to the Committee that they cannot agree, the Committee shall constitute in manner aforesaid another court which shall proceed with the arbitration and shall be at liberty to act upon the record of the proceedings as then existing and on the evidence, if any, then taken in the arbitration de novo. "

( 2 ) ONE of the grounds for challenging the award is that the Secretary, Calcutta Grain Oilseed and Rice Association had no power and authority to constitute a court of arbitration under the rules and therefore the court had no jurisdiction to make the award. By a letter dated December 6, 1958 addressed by the Secretary to Messrs. Ramlal Roshanlal and Co. it was notified as follows: "i hereby give you notice that I duly reconstituted the court under the provisions of Rule 13 of the Rules as to disputes,"

( 3 ) COUNSEL for the respondent contended that the applicant appeared in the arbitration and took part in the proceedings and therefore there was waiver of objection, if any. Reliance was placed on the decision of Union of India v. K. P. Mandal. That was a case where the arbitration clause contemplated reference to the arbitration of the Superintending Engineer of the Circle for the time being. Disputes arose between the parties. The Government appointed one M as an arbitrator to adjudicate and informed the claimant about the appointment. Both the parties knew that M was not competent to act as arbitrator according to qualifications prescribed in the arbitration clause. It was held that although there could be no representation by A as to the actual competence of the arbitrator, the rule of estoppel would still bind him and would prevent him from contending that M was not qualified under the terms of the agreement to arbitrate in the dispute. At p. 419 of the report Chakravartti, C. J. said :"it may be that in a particular case there was not and could not be any representation by the party sought to be held to estoppel as to the competence of the arbitrator, but if knowing of his incompetence he submitted to arbitration by him, there was clearly a representation that there was no intention to object to the arbitrator on the ground of his incompetence and there was willingness to go to arbitration before him. "it was further observed that the representation in order to attract the rule of estoppel need not always be a representation of a physical fact but might as well be the representation of attitude or state of mind. On the facts of that case it was held that though the appointment of M as arbitrator could not have been lawfully made without the consent of the respondent, he induced the Government to believe that he consented to the appointment.

( 4 ) I am of opinion that the decision of the Appeal Court does not apply to the facts of this case. The question here is one of jurisdiction. In the case of Katihar Jute Mills Ltd. v. Lachminarayan Jute Manufacturing Co. , Chakravartti, C. J. said :"the chamber being a corporate body can function only in accordance with its rules and therefore when the court constituted is one which cannot be constituted under the rules, the award made by the chamber through such a court is an award made without jurisdiction and as such a nullity. "to my mind the distinction which is vital to bear in mind is between waver as to jurisdiction and waiver as to procedure. Defect in or lack of or basic incompetence in jurisdiction can never be waived. Defect in procedure only can be waived.

( 5 ) IN the unreported decision of Rekhabdas Baheti v. Banwarilal Garodia, S. R. Das Gupta, J. said : "the arbitrat