KESHAVSINH DWARKADAS KAPADIA ETC. versus M/S. INDIAN ENGINEERING COMPANY

Citation: [1972] 1 S.C.R. 695 · Decided: 10-09-1971 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
D 
KESHAVSINH DWARKADAS KAPADIA ETC. 
v. 
M/S. INDIAN ENGINEERING COMPANY 
September 10, 1971 
695 
[S. M. SIKRI, C.J., A. N. RAY AND D. G. PALEKAR, JJ.] 
Arbitration Act (10 of 1940), Sch. I, para. ~Appointment of 
umpire by arbitrators-Whether consent of umpire necessary-Disagree-
ment between arbitrators what i's. 
Disputes having arisen between the appellant and the respondent, they 
were -referred to arbitration in accordance with an arbitration agreement. 
The arbitrators entered upon the reference and also appointed an umpire. 
After the time for making the award had expired the appellant took the 
stand that one df the arbitrators would be biased in favour of the respon-
dents. 
The respondents therefore called upon the arbitrators to refer the 
matter to the umpire and also wrote to the umpire and the umpi-re enter-
ed upon the reference. Thereafter, the appellants filed applications under 
s. 33 of the Arbitration Act, 1940. The High Court held that the umpire 
rightly entered upon the reference, and extended the time to enable the 
umpire to make an award. 
In appeal to this Court it was contended that : ( 1) the appointment 
of the umpire was not valid because the consent of the appointee was not 
obtained: and (2) under cl. 6 of the Arbitration agreement the operation 
of para 4' Sch. I of the Arbitration Act was excluded, and the umpire 
, could ente·r upon the reference only in the event of a difference arising 
between the arbitrators and the arbitrators referred the matter to the 
E 
umpire. 
F 
G 
H 
Dismissing the appeal, 
HELD : (I) There is a distinction between appointment and accept-
ance of an office. The question of effectiveness or perfection is ordi~ 
narily subsequent to appointment. The scheme of arbitration proceedings 
indicates tha.t the appointment of an umpire and the acceptance of office 
are two separate matters arising at different stages in the proceedings. 
[699 H; 700 A; 704 El 
When the arbitrators are required to appoint an umpire it only means 
that the arbitrators are to concur in appointing the umpire. 
There iS no 
particular method of appointment of an umpire though the usual method 
is by writing. 
Arbitrators who are required to appoint an um.pire are 
under no obligation to obtain the approval of the choice of the person by 
the parties who appointed the arbitrators. If any party is dissatisfied with 
the choice it will not affect the validity of the appointment; nor is the 
appointment conditional upon 
the acceptance 
of appointment 
by the 
umpire. 
The necessity for communication of appointment to the partieS 
as well as to the appointee depends on the language of the arbitratien 
clause. The Arbitration Act does not say that the appointment of umpire 
by the arbitrators is to be made only after obtaining the consent of the 
appointee. [700 D-E; 70 I D-F; 704 D-E] 
When the umpire assumes his office he accepts 
the appointment. 
Acceptance may be express or implied. It need not be in writing; it may 
be evidenced by conduct. It may also be evidenced by proceeding with 
696 
SUPREME COURT REPORTS 
(1972}1 S.C.R 
the arbitration. When the umpire is called upon to proceed in terms of 
the appointment he will either assent expressly or by conduct to act, or he 
will decline lo act. fi704 A-B, D, E-F] 
Mirza Sadik Husain v. Mussamat Kaniz Zohra Begc.m, L.R. 38 I.A. 
181, applied. 
Ringland v. Lowndes, (1863) 15 C.B. (N.S.) 173; 143 E.R. 749 and 
Tradax Export S.A. v. 
Vo~wagenwerk A.G. [1970] I All E.R. 420, ex• 
plained and distinguished. 
(2) (a) Paragraph 4 df the first schedule provides that if the arbitra· 
tors have allowed the time to expire without making an award, or have 
delivered to any party to the arbitration agreement or to the umpire 
a 
notice in writing slating that they cannot agree, the umpire shall forthwith 
enter on the reference in lieu of the arbitrators. 
There 
is no intention 
in cl. 6 of the agreement, to exclude, the operation of this paragraph. 
On 
the contrary the agreement shows that the intention of the parties 
was 
that when the arbitrators allowed time to expire without 
making 
the 
a\vard the umpir~ should enter on the reference in lieu of the arbitrators. 
[704 H; 705 A.CJ 
(b) In the present case, the arbitrators, by reason of the attitude of 
one of the parties could not agree to proceed with the matter. Where one 
of the arbitrators declines to act and the other is left alone, in a case of 
tbis type, it will amount 

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