T. V. R. Tatachari, V. S. Deshpande

( 1 ) [appellant carried on forward transactions in stock and shares through respondent No. 1 who was a member of Delhi Stock Exchange Association. Contract note between them contained arbitration clause that disputes would be settled a :cording to Rules of the Association. Respondent No. 1 appointed his arbitrator and on appellant s, failure, President of Association appointed his Arbitrator. Appellant challenged the award given by them as unilateral. Single Judge held against the appellant and he filed appeal against the same. The D. B. observed that definitions of agreement and reference in S. 2 (2) and (e) of the Act of 1940 are not without significance Para 9 onwards the judgement is ;

( 2 ) IT is to be noted, however, that the definition of arbitration agreement" in the Act of 1949 is precisely the same as the definition of "submission" in the Act of 1899. How is it then that the definition of "arbitration agreement" in the Act of 940 is the same despite the insertion of the new definition of "reference" in the Act of 1940 ? The reason appears to be this ; The definition of "arbitration agreement" is comprehensive enough to include two types of arbitration agreement. On the one hand, it includes merely an agreement between the parties that disputes arising between them should be decided by arbitration. This is a bare arbitration agreement. It does not provide for a reference of the dispute to arbitration. It merely provides that disputes would be referred to arbitration On the otter hand, the definition also includes arbitration agreements which combine an agreement that disputes shall be decided by resort to arbitration with a reference of the disputes between the parties to arbitration. It is only when the arbitration agreement is of the former type, namely, a bare agreement, that disputes shall be decided by resort to arbitration that an arbitration agreement is used separately from the reference of disputes to arbitration. It is only when an arbitration agreement is of this type that a separate reference to arbitration would have to be made apart from the arbitration agreement and this is why the two things have been separately defined in sections 2 (a) and 2 (e ). But because section 2 (a) is comprehensive enough to include the latter type of arbitration agreement which combines both the arbitration agreement and the reference that only the "arbitration agreement" is defined to include both the types of agreement while "reference" is not defined at all except to mean that it is a reference to arbitration. B. Nature, manner and time of consent

( 3 ) IN a bare arbitration agreement the consent of the parties is restricted to the fact that disputes between them would have to be decided by resort to arbitration. But when arbitration agreement includes also reference to arbitration, the consent of the parties would cover not only the fact that the disputes will have to be referred to arbitration but also the fact that they are referred to arbitrators for decision. The disputes may be of two types - (a) present disputes, and (b) future disputes. When the disputes have already arisen, then there is no difficulty in under standing that the consent of the parties that the disputes should be decided by resort to arbitration would automaticaliy include a reference of those disputes to arbitration. At first sight it would appear that the consent of the parties underlying a reference can exist only regarding past and present disputes and that it cannot exist regarding future disputes. But this view, though plausible, is opposed to the conception of a submission or a comprehensive arbitration agreement comprising both the agreement to refer to arbitration and also the reference on which the system of arbitration in

( 4 ) ENGLAND and India has been based right from its inception till now. It is because the consent of the parties to the reference (as distinguished from a mere agreement to refe

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