A reference to arbitration requires the assent of both parties, and if one party is unwilling to submit to arbitration despite a previous agreement, recourse must be had to the court under section 20 of the Arbitration Act, 1940.

( 1 ) THE respondents had entired into a hirepurchase agreement with the appellant Company, and in that agreement there was an arbitration clause. Certain disputes having arisen subsequently, the appellant-Company handed over the dispute to the arbitrator named in the agreement. The respondents did not appear before the arbitrator nor otherwise submit to his jurisdiction, and in the result, an ex-parte award was made. When the award was filed in Court and a prayer for a decree on its basis made by the appellant-Company, several objections were raised by the respondents. One of these was that they had never consented to tire dispute being REFERRED TO the arbitrator, and the reference was, therefore, invalid as such a reference in law required the assent of both the parties and failing that an order of the Court. This objection prevailed and the learned Subordinate Judge hearing the case held that the reference to the arbitrator was invalid and incompetent. He relied for this on a judgment of the Supreme Court in Thawardas v. Union of India. In the result, the appellant s application was dismissed and the award set aside and it is against that decision that the present appeal is brought.

( 2 ) THE facts are not in dispute and the only question is whether the Court below has correctly understood the opinion of the Supreme Court expressed in Thawardas v. Union of India. The relevant observations of that Court occur in paragraphs 18 of the judgment. The Supreme Court was pressed to hold in that case that a point of law had been specifically REFERRED TO the arbitrator in that case, and, negativing that suggestion, the Supreme Court said :-

"we are of opinion that this is not the kind of specific reference on a point of law that the law of arbitration requires. In the first place, what was shown to us is no reference at all. It is only an incidental matter introduced by the Dominion Government to repel the claim made by the contractor in general terms under claim No. 5. In the next place, this was the submission of the "contractor alone. "having said this, Bose J. , speaking for the Court, proceeded to lay down the general law on the subject, and he said -

"a reference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub-section (4 ). In the absence of either, agreement by both sides about the terms of reference, or an order of the Court under section 20 (4) compelling a reference, the arbitrator is not vested with the necessary exclusive jurisdiction. "having laid down the law in this manner, Bose, J. , proceeded to draw the conclusion.

"therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be abound by the arbitrator s decision, the jurisdiction of the court to set an arbitration right when the error is patent on the face of the award is not ousted. "the language employed by the Supreme Court is plain enough, for it says clearly that "if one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub section (4 ). "

( 3 ) MR. Radhey Lal Aggarwal for the appellant suggests that the observations of the Supreme Court were made when the learned Judges were considering whether in that case specific question of law had or had not been REFERRED TO the arbitrator, and they must be understood as confined to such a situation so that, according to learned counsel, the meaning of the above-quoted passages is simply this that a specific question of law cannot be REFERRED TO an arbitrator unless both