P L D 1964 Dacca 527 (PLP)

(c) that an award has been improperly procured or is otherwise invalid."

3. Mr. S. R. Pal, appearing on behalf of the appellant firm, has taken three grounds in impeachment of the award, passed by the learned Court below. In the first place he has contended that the impugned award is invalid within the meaning of clause (c) ibid in that the said award has not been legally cancelled and is as such still subsisting. As already stated the due date, i.e., the date fixed for delivery was the 30th of September 1955, which was later, extended till the 20th of October 1955. By common consent the contract Exh. 1 between the parties was governed by the Local Pucca Bale Contract No. 6 of the Pakistan Jute Association Exh. 1 (a) which under clause 11 provides :‑ "Non‑delivery of documents and/or Jute :‑In case of default by Sellers, Buyer have to exercise any of the following options :‑ (a) Cancelling the contract on the fifth working day after due date (or earlier at the request of the sellers) and no documents, although bearing due date and/or jute will be accepted thereafter ; (b) Cancelling the contract on the fifth working day after due date (or earlier at the request of sellers), and charging the difference between the contract rate at the market rate on the date of cancellation of contract as certificate by the Pakistan Jute Association."

4. It has accordingly been argued that under the above term the respondent firm was legally entitled to cancel the contract on fifth day after the due date, i.e., on the 25th October, and not before that, and that therefore, its action purporting to cancel the same on the very due date, i.e., on the 20th October is illegal. The point thus sought to be made is that the said so‑called cancellation is no cancellation with the result that the contract must be regarded as still subsisting in the eye of law. Thus the award made on the basis of the purported cancellation on the 20th October is illegal. In reply to this Mr. Asrarul Hossain representing the respondents firm has submitted that in order to succeed on the ground of invalidity, it must be shown that the error of law, complained of, is patent on the face of the award and that the Court is not competent to make a sifting investigation of papers other than those incorporated in the award itself for the purpose of discovering the same. From the authorities cited before us by the learned lawyers on the both sides, i.e., Champsey Bhara & Company v. Jivraj Balloo Spinning and Weaving Company (50 I A 324) ; Saleh Mahomed Dmer Dossal v. Nathoomal Kessamal (54 1 A 427) ; Gulzarilal Kanoria & Co. v. Busi and Stephenson Ltd. (A I R 1953 Cal. 621) ; Messrs Alhaj Md. Keramat Ali & Co. Ltd. v. Messrs Aman Jute Mills (P L D 1961 Dacca 452) ; Hasmat Ali Jamadar and others v. Asmatali Jamadar ((1954) 6 D L R 478) ; Savkur v. Amritlal Kalidas and others (A I R 1954 Bom. 293) ; Penukonda Rathakrishnamurthy v. Balasubramanid & Co. and others (A I R 1949 Mad. 559) and Haji Ebrahim Kassam Cochinwalla v. Northern Indian Oil Industries Ltd. (A I R 1951 Cal. 230), it appears that although there is conflict of views as between the Calcutta High Court on the one hand and most of other High Courts in the Sub‑continent on the other, as has been pointed out by Chalna, C. J. in A I R 1954 Bom. 297, on the question whether the expression "otherwise invalid" occurring in clause (c) of section 30 is to be construed ejusdem generis, there is really no difference regarding the point that an award can be set aside on the ground of error of law as being judicial misconduct within the meaning of section. 14 only if the error, no matter whether ejusdem generis or not appears on the face of the award. and not otherwise. [Hence although a ground not ejusdem generis can be taken to assail the validity of an award, but it must be such as is patent, i.e., appears on the face of the award and not latent so as to necessitate scrutiny beyond the award for the purpose of discovering it]. Thus in A I R 1951 Cal. 230 wherein the arbitrator specifically mentioned "read and carefully censidered the papers in this case" as well as the relevant contract and on that basis it was contended that the papers and the contract in the case were necessarily incorporated by reference in the award and the Court could scrutinise such papers and the contract whatever that might be in order to discover error on the face of the award, it has been laid down :‑ "The law on this point has been settled by the House of Lords and by the Privy Council. In Government of Kelanton v. Duff' Development Co. Ltd. 1923 A C 395, Viscount Cave Lord Chancellor says that unless it can be shown by something appearing on the face of the Award that the Arbitrator has proceeded illegally his Award must stand. In Champsey Bhara & Co. v. Jivraj Ballo Spinning & Weaving Co. Ltd. the Judicial Committee of the Privy Council observes that an Award of an Arbitrator can be set aside on the ground of error of law on the face of the Award only when in the Award a document is incorporated with it as for instance a note appended by the Arbitrator stating the reason for his decisions and there is found some legal proposition which is the basis of the Award and which is erroneous. The Privy Council in that case held that they could not set aside the Award and the terms of the contract were so incorporated with the award as to entitle the Court to refer to them as showing either that the Award was wrong in law or that under them the contract has come to an end and therefore the jurisdiction of the Arbitrators had terminated. Then again a Judicial Committee of the Privy Council in Saleh Md. v. Nathoomal 54 I A 247 comes to the conclusion that a statement in the Award that the dispute is under a contract between the parties of a certain date does not so incorporate the contract with the Award as to entitle the Court to refer to its terms and by so doing to find that there is an error of law. It is therefore not permissible to my opinion in this case to refer either to the contract which is mentioned by the Arbitrator or to the papers in order to find out the error of law. The language of the Arbitrator is not such in the Award which can be construed to mean that either the contract or the papers are incorporated in the Award. The last pronouncement of the Judicial Committee of the Privy Council on this point is in Durga Prosad v. Shewkisen Das 54 C W N

74. There again the Privy Council repeated the law on the point and Lord Radcliffe delivering the judgment of the Privy Council expressed the opinion that before a Court can set aside an Award on the ground that an error of law appears on the face of it in the reference to some documents, it must be demonstrated affirmatively that the law was departed from by the Arbitrator in noticing the existence or contents of those documents and accordingly, mere reference to certain documents in the Award was insufficient to establish that it was wrong in law to refer to them."

5. This appears to reflect the general consensus of all the authorities on the point. So from the mere fact of reference to the contract and other papers by the arbitrators in the present instance it cannot be said that the contract and those other papers have been incorporated in the award so as to entitle us to scrutinise them for the purpose of discovering error on the face of it. Again in A I R 1953 Cal. 621 wherein a question raised was that the rate allowed by the Arbitrators in their award was forbidden, it was held :‑ "The second answer is that the award of the Arbitrators on the face of it does not show the basis on which the damage is given. It is quite true that some idea could be obtained from the proceeding before the Arbitrators. But in an application to set aside an award, this Court does not make a sifting investigation of the entire proceedings before the Arbitrators. Before that can be done, the award must be shown to be bad on the face of it. The award itself in this case does not show the grounds on the basis of which damage was given. Here, again, Mr. Sethia has relied on the case of the Court of Appeal in A I R 1952 Cal. 440(A). But then the point was entirely different in that case. There the Arbi trators in the award itself gave the ground about the avail ability of the market and goods on the contracts date and come to a conclusion regarding the availability of market on a particular date. This will be found at page 441 of the report. Entirely different consideration apply in the case of an award such as the one before me. No ground here is given on the face of the award and it is not possible to fathom the processes of reasoning by which the Arbitrators came to the conclusion in awarding a particular sum as damages." In this connection reference may also be made to the following observations of Mack, J. in A I R 1949 Mad. 559 :‑ "A mere error in point of law whether specifically referred to the arbitrators or not will not by itself justify the Court setting aside the award. There may be many cases in which the arbitrators though aware of the strict law on the subject may in order to do substantial justice on principles of equity deviate to form it. No hard and fast rule can be laid down as to type of cases in which an award may be remitted under section 16 (c) or set aside under section 30 (c). All objections to the legality of the award that is on the ground of any error in law appearing on the face of the award appear to be governed by section 16 (c) and not by section 30 (c). Even to justify a remission of the award on the ground of an illegality apparent on its face, it must be on such a nature as to permit of no argument, and to be patent on its face and if permitted to pass uncertified would do substantial injustice in both law and equity to the parties concerned."

6. Even though this proposition laid down by the learned Judge may be said to go a bit too far, there appears to be no escape from the conclusion, as has in fact been ruled by the Privy Council in 54 1 A 427 that a statement in the award that the dispute is under a contract between the parties of a certain date does not so incorporate the contract with award, as to entitle the Court to refer to its terms, and by so doing to find that there is an error of law. Thus the law on the point appears to be well‑settled and in respectful agreement with the same, we are of opinion that the aforesaid contention urged by Mr. Pal has no force or substance at all.

7. It has next been contended that the arbitrators committed an act of judicial misconduct in relying upon the opinion of a law Firm, to wit, Messrs Orr Dignam, obtained by the Pakistan Jute Association as to the effect of revaluation of the Pakistan currency. This contention was advanced by the learned Advocate under the impression that the said opinion was forwarded to the Court along with the award but on a scrutiny of the record it appeared that it was really not so forwarded and actually came to Court at the instance of his client who made an application calling for the same. Upon this discovery, the learned Advocate really abandoned this contention. At any rate, it could not be sub stantiated and must, as such, be rejected.

8. The third and the last point urged by the learned Advocate for the appellant firm is that in this case the statement of the case and other papers were called for by the Registrar and not by the Arbitrators themselves and this amounted to a delegation of the power and authority of the Aribtrators to the Registrar and as such constitutes judicial misconduct within the meaning of clause (a) of section 30 of the Arbitration Act. As has, however, been observed by the learned Subordinate Judge the act of calling for the statement of the case or other paper from the parties is a ministerial act and if that has been performed by the Registrar in violation of the Rules, that was at best an irregularity and not an illegality affecting the award. In our opinion, the test as to whether an act amounts to an illegality is whether the act complained of is judicial or quasi-judicial and if that is so there may be substance in an argument! of the kind advanced on behalf of the appellants firm. If however, it is a ministerial act, as the one in the present instance before us appears to us to be, that cannot affect the award or render it invalid. This view appears to receive support from the case reported in A I R 1951 Cal. 20 although the point dealt with therein is not exactly identical. It has been held :‑ "Filing of an award by an arbitrator is a ministerial act and not judicial or quasi‑judicial act of the arbitrator, and has nothing to do with the validity of the award except in so far as Article 178, Limitation Act affects the question. We are, therefore, led to reject this contention as well as having no substance. In the result, the appeal is dismissed with cost and the order of the learned Court below, appealed from, is affirmed. HASAN, J.‑I agree. S.Q. Appeal dismissed.