An arbitrator's failure to give notice of intention to proceed ex parte, where the defaulting party had not made his position clear that he would not attend in any event, is a ground for setting aside the award.

SABYASACHI MUKHARJI, J.

( 1 ) THE subject-matter of challenge in this application is an award dated 21st June, 1977 by the arbitrator. By the award, the arbitrator has held that the petitioner was liable to pay Rs. 3,500/- to the respondent and it was further held that if the petitioner along with Joydeb Dey fail to give possession of the vehicle in question to the respondent they would pay a further sum of Rs. 3,000/- in lieu of the possession. It was further awarded that the respondent, was entitled to the possession of the vehicle. The award is being challenged on the ground that the arbitrator had proceeded ex parte on 21st June, 1977 without giving any peremptory notice to the parties concerned that he would so proceed. It appears that prior thereto, on 26th April, 1977 there was a meeting before the arbitrator where the petitioner as well as respondent had attended. The arbitrator had given directions for the filing of the documents by the parties. At the said meeting, it appears, the petitioner had made a representation that the next meeting should be fixed in the second week of June, 1977 so that the petitioner could attend. Pursuant thereto, the next meeting was fixed originally on the 15th June, 1977 but before that meeting the parties were informed that the meeting would be held on 21st June 1977 at the Chamber of one Sri S. K. Sinha in the office of M/s. P. D. Himatsinghka and Co. Advocates on record for the respondent. It is the case of the petitioner that on 21st June, 1977 the documents disclosed by him were sent to the Office of the Arbitrator at 12, Government Place East, Calcutta in the Office of the India Automobiles (1960) Ltd. It is the further case of the petitioner that such documents were not accepted by the office of the said arbitrator. The petitioner further stales on the said date the petitioner had sent these documents to M/s. P. D. Himatsinghka and Co. who were the Advocate-on-record of the respondent. The petitioner did not attend the meeting of the arbitrator on 21st June. 1977. On 14th July, 1977 the petitioner received a letter dated 12th July, 1977 intimating to the parties by the arbitrator that he has made the award. In these circumstances, this application was made on the 16th January. 1978 for setting aside the award,

( 2 ) AS I have mentioned before, there is no dispute that no notice had been given by the arbitrator that he would proceed ex parte on 21st June, 1977. Counsel on behalf of the respondent contended that there was no invariable rule of law which enjoined the arbitrator to give such a notice before proceeding ex parte. He further submitted that where time and place of meeting appointed by the arbitrator were reasonable and due notice had been given to the parties but one of the parties refused to attend the arbitrator might proceed with the reference in his absence. In aid of this submission, he relied on the observations of Halsbury's Laws of England, 4th Edition. Vol. II, Page 306, Para 590. The learned authors of Halsbury's Laws of England further observed that where arbitrator proposed to proceed with the reference notwithstanding absence of one of the parties it was advisable that he should give that party a distinct notice of his intention to do so. But if reasonable excuse for not attending the appointment could be shown the Court would set aside the award made by the arbitrator who had proceeded ex parte. Counsel further submitted that there was no rule of law, as such, and in this case the arbitrator was not guilty, according to him. for not giving any prior notice intimating to the parties that he would proceed ex parte. Russel in the 18th Edition on Law on Arbitration at page 222 states that every arbitrator is authorised by the nature of his office, to proceed ex parte for good cause. It is unnecessary, though not unusual, to give him power in express terms in the submission. In the case of Udaichand v. Debibux, AIR 1920 Cal 853 Sir Ashutosh Mookerjee, J. speakin

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