1. This is an appeal from a judgment of Mr. Justice Greaves dismissing an application to set aside an award.
2. The contract between the parties provided for a reference to arbitration in the following terms: "Any dispute under the contract was to be finally settled by two European arbitrators appointed by buyers and sellers respectively or by an umpire in case of difference." The respondent appointed Mr. Appollonato as arbitrator and requested the appellant to nominate another arbitrator. The appellant did not respond, with the result that the arbitrator proceeded to deal with the matter in controversy. He gave notice that he would hold the arbitration on the 26th June 1919, and requested that any written statement intend ed to be sent should be sent before the date, and that the parties should be present on the appointed day with witnesses and documents. It was not till the day previous, that is, the 25th June 1919, that the appellant, through his Attorney, forwarded to the arbitrator his case; but on the date Used there was no appearance on his behalf. The arbitrator, thereupon, made an ex parte award in favour of the respondent, which is now impeached on two grounds: first, that no notice that the award had been filed was given under Sub-section (2) of Section 11 of the Indian Arbitration Ant, 1899, and that till such notice had been giving, the award should not be enforced as a decree of Court; and, secondly without express notice given of his intention to do so. Mr. Justice Greaves has overruled these contentions; in our opinion, there is no substance in either of them.
3. As regards the first point, Sub-section (2) of Section 11 provides that, the arbitrator shall cause the award to be filed in the Court and the notice of the filing shall be given to the parties by the arbitrator. This provision imposes a duty on the arbitrator, after the award has been filed, to give notice of the fact of filing to the parties: Baijnath v, Ahmed Musaji Sahji 18 Ind. Cas. 978 : 40 C. 219 : 17 C.W.N. 395, Sub-section (I) of Section 15,then provides that an award on a submission, on being filed in the Court in accordance with the foregoing provision, shall (unless, the Court remits it to the re-consideration, of the arbitrators or umpire or sets it aside) be enforceable as if it were, a decree of the Court. The appellant has argued that an award which has bean filed in Court, but the filing of which has not been notified to the parties, is not enforceable as if it were a decree of the Court. We cannot accept this contention, because we are invited, in substance, to read into Sub-section (1) of Section 15 the words "and its filing notified to the parties" after the words "filed in the Court," In our opinion, Sub-section (2) of Section 11, read with sub Section (1) of Section 15, shows that the moment an award has been filed in the Court by the arbitrator, it becomes enforceable as if it were a decree of the Court, even before the arbitrator has notified to the patties the fact of its filing under Section 11(2). Consequently, it is not necessary, before the award is enforced, to show that notice of the fact of filing has been given by the arbitrator to the parties concerned. The provisions of the Indian Arbitration Act in this respect are substantially different from the provisions of the English Arbitration Act, 1889, and we sea no reason why we should not give effect to the plain language of Section 15, We may observe that Section 11 contemplates notices by the arbitrator to the parties at two stages, namely, first, notice of malting and signing the award, and secondly, notice of the filing of the award in court. In the present case, we are concerned only with the effect of an alleged omission to give the second notice; such omission, as we have seer, does not destroy the operative character of the filed award. The first contention of the appellant accordingly fails.
4. As regards the second point, reliance has been pitted by the appellant upon the decision in Gladwin v. Chilcote (1841) 9 Dowl. P.C. 550 : 5 Jur. 749 : 61 R.R. 825. That case is an authority for the proposition that in general the arbitrator is not justified in proceeding ex parte without giving the party absenting himself due notice. It is advisable to give the notice in writing to each of the parties their collector, and the notice should express the arbitrator's intention clearly, otherwise the award may be set aside: Waller v. King (1724) 9 Mod. 63 : 88 E.R. 317, Wood v. Leake (1866) 12 Ves. (Jur.) 412 : 33 E.R. 156 and Hali v. Andirson (1840) 8 Dowl. P.C. 326. There is no statutory rule, however, that if an arbitrator proceeds ex parte without giving notice of his intention to proceed in that manner, the award made by him must be set aside. In the absence of such an inflexible statutory provision the procedure commended in Gladwin v. Chilcote (1841) 9 Dowl. P.C. 550 : 5 Jur. 749 : 61 R.R. 825 and the other cases mentioned can be regarded only as a rule of prudence and convenience. As Lord Denmar, C.J., put it in Scott v. Van Sandau (1844) 6 Q.B. 237 : 8 Jur. 1114 : 115 E.R. (sic) E.R. 92, the law is that, if either party, after the arbitrator has given him sufficient notice and proper opportunities of attending, will not appear, the arbitrator may proceed in his absence. There is obvious good sense in the view that notice that the arbitrator will proceed with the reference on a certain day is notice that he will then proceed ex parte if one of the parties absents himself without sufficient reason. But, let us assume that when an award has been made ex parte, the absent party may prima facie be deemed to have been prejudicially affected thereby; surely, it is open to his adversary to rebut that presumption. If, for instance, it is mad a fairly clear that notwithstanding the service of notice upon him, that in his absence the arbitration would proceed ex parte he would not have entered appearance, it cannot reasonably be urged that the omission to serve such notice has invalidated the award. The appellant has contended that it is not open to the Court to take into account the subsequent conduct of the appellant, to determine whether, at the time of the arbitration proceedings, he had or had no made up his mind not to join in them. His argument, in substance, is that this could not have affected the judgment of the arbitrator, that we must limit ourselves to the facts and circumstances known to tb.6 arbitrator when he proceeded ex parte, and bold that his omission to intimate to the absent party that the arbitration would proceed ex parte is by itself sufficient to invalidate the award. We are clearly of opinion that this is not the proper test to be applied to determine the validity of the award in a case of this description. The true test is, has the complainant, who takes exception to the validity of the award, been in fact prejudiced by the omission of the arbitrator to serve the special notice on him. If it is established that, notwithstanding such warning, he would not have appeared before the arbitrator, he has really no grievance and cannot invite the Court to set aside the award on account of the alleged defect in procedure.
5. In this case, the conduct of the appellant reasonably leads to the conclusion that he was determined not to join in the arbitration proceedings. We have the fact that, notwithstanding the invitation of the respondent, be refused to appoint an arbitrator. This could hardly be attributed to abundant confidence in the gentleman selected by his opponent. But his subsequent conduct unmistakably slows his true attitude. He disputed the competence of the arbitrator to act in that capacity on the allegation that he was not a European but an Aviation. He submitted his case to the arbitrator only the day before that fixed for the hearing and took no further steps. Finally, he has taken no steps to contradict the allegation contained in an affidavit filed on behalf of his adversary, where it is asserted in the plainest possible terms that he never intended to join in the arbitration. In these circumstances, we must hold that he has not been prejudiced by the omission of the arbitrator to notify that the proceedings would be held ex parte, and, that the award cannot be impeached on that ground.
6. The result is, that this appeal is dismissed with costs, and the stay order vacated.
Ernest Fletcher, J.
7. I agree.