# Kashinath Bhaslr ar Datar v. Bhaslr,,ar VishweshwM' Karve - **Citation:** [1952] 1 S.C.R. 501 - **Court:** Supreme Court of India - **Decided:** 1951-04-10 - **Case number:** Civil Appeal No. 163 of 1951 - **Bench:** SAIYID F AZL Au, VIVIAN BosE - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kashinath-bhaslr-ar-datar-v-bhaslr-ar-vishweshwm-karve-42 - **Pages:** 12 ## Headnote lt1Jian Arbitration Act (X of 1940), s. 33-Arbitration clause-· Wht'ther" disputt' "arises out of agrt't'ment"-Tests-Plea that agree• 1flt'11t is not applicable and does not subsist-No dispute about the· existence or validity or meaning-Jurisdiction of arbitrator-Appli; cation under s. 33-Maintainability. The appellant company insured a car belonging to respondent' No. 1 and issued a policy which contained, inter alia, the following_ tcrms:-"All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed by the parties • . . . . . . If the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable." The car was lost, and the company through its Branch Manager disclaimed liability on· three different dates. The insured did not take any action in regard to the appointment of an arbitrator until more than twelve months after the last disclaimer by the company. The case of the company was that the insured must be deemed to have abandoned his claim by virtue of the contract ef insurance policy while the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no authority to disclaim the liability and it could have been disclaimed only by the resolution of the company. The company presented the present application under sec. 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company. It was contended on its behalf that the arbitration clause had ceased to be 1952 Kashinath Bhaslr..ar Datar v. Bhaslr,,ar VishweshwM' Karve. 1952 Fe/J. 25, 1952 1Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar 'llnd Anothll the 14th February, 1950. On the 10th February, 1950, the insurance company filed a petition before the Subordinate Judge, Delhi, praying that the responden~ be stopped from proceeding further in the matter so .that its application under section 33 may not become infructuous. On the 11th February, the Subordinate Judge issued notice to the respondents fixing the 17th }'ebruary as the date of hearing and passed the fol- 'lowing order: "Moreover (till) the decision of this application ·the arbitrator should not give or pronounce his award ·bur should continue the proceedings." On. the 14th February, 1950, the second respondent pronounced his award after making a note to the following effect:- "Mr. G. R. Chopra, the counsel of the defendants, ,sent a telephonic message at 12 A.M. requesting exten- ~on till ;! P.M. I agreed and accordingly I waited for - • ' .. . ... S.C.R. SUPREME COURT REPORTS 505 him and the plaintiff with his counsel also waited up to 1 P.M. Nobody turned up on behalf of the defendants. I commenced the proceedings and took the statement of the plaintiff and the documents that he had produced." He made a further note at the end of the award to this effect:- "As after the giving of the award a notice was 1erved upon me not to give the award, I have not sent any formal letter to the parties informing them of the award and its costs." On the 24th March, 1950, the Subordinate Judge pa$sed an order on the company's application under section 33, dismissing it and holding that the terms. of clause 7 of the agreement "were comprehensive enough to include the points of disputes between the parties now and as such are triable by the arbitrator and not by the court". The Subordinate Judge concluded his order by observing: "I, therefore, hold that the reference to the arbitration of the differences is perfectly valid and the points raised by the parties to this application with regard to the abandonment of claim . and its becoming irrecoverable are to be decided by the arbitrator." The judgment of the Subordinate Judge was upheld in revision by the Punjab High Court and the company has now preferred an .appeal to this court by special le~ve. The points that were . urged on behalf of the appellant in this appeal are these:- (1) that the arbitration clause had ceased to be operative and the question as to the existence and validity of the arbitration agreement was triable by the court under section 33 of the Arbiration Act and not by the arbitrator; and (2) that the award was invalid and not binding on the appellant, because it was pronounced in spite of the order of the court dated the 11th February, 1950, directing the arbitrator not to pronounce his award. 19)2 Ruby Gent:ral lnsuranct: Co. Lttl. T. Pe11rt:y lAl Kumar ani A.notht:r. Pal Ali /. 1952 Ruby Genn-111 Insurance Co. Ltd. v. Pearey Ltil Kumar 11nd A nothnF11zl Ali J. 506 SUPREME COURT REPORTS [1952] Clause 7 of the policy of insurance runs as follows:- "All differences arising out of this policy shall be . rderred to the decision of an arbitrator to be· appointed in writing by the parties in difference or if they cannot agree upon a single arbitrator to the· decision of two arbitrators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to dO' by either of the parties or in case the arbitrators do not agree of an umpire appointed in writing by the arbitrators before entering upon the reference. The· umpire shall sit with the arbitrators and preside at their meeting and the making of an award shall be a condition precedent to any right of action against the company. If the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calender months from the date of such disclaimer have been referred to arbitration under the provisions herein contained then the claim shall for all purposes be deemed to have been aban- . cloned and shall not thereafter be recoverable hereunder." It will be noticed that this clause provides among· other things that if the company disclaimed liability to the insured for any claim under the policy and such· claim was not within twelve calendar months from the date of such disclaimer . referred to arbitration, then the claim should be deemed to have been abandoned and was not recoverable. The case of the company is that it disclaimed liability for the loss of the car on three successive occasions, namely, on the 26th May, 1948, the 3rd July, 1948, and the 1st August, 1948. The first respondent however did not take any action in regard to the appointroent of an arbitrator until the 21st November, 1949, i.e., until more than 12 months after even the last disclairoer by the company. For this reason, the claim put forward by the first respondent must be deemed to have been abandoned and he cannot recover anything from the company. On the other hand, the case of the first respondent, which -- - ... . - }. ~ - -" S.C.R. SUPREME COURT REPORTS 507 is set out m 'his affidavit dated the 17th February, 1950, is that there was never any valid disclaimer by the company of its liability. The position that he took up was that the Branch Manager of the company had no authority to disclaim the liability, and it could have been disclaimed only by a resolution of the company. Now these being the respective contentions of the parties, the question is whether the point in dispute fell to be decided by the arbitrator or by the court under section 33 of the Arbitration Act. Section 33 is to the following effect:- "Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits : -Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit." The question to be decided is whether the point ori which the parties are in dispute is a difference "arising out of the policy" in terms of clause 7 of the policy. The test for determining such a question has been laid down in a series of cases and is a simple one. The test is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract is necessary, then the matter must come within the scope of the arbitrator's jurisdiction. In the present case; both thP. p;iries admit the contract and state that they are bound by it. Indeed, the appellant-company, in order to mak-ie good its contention, is obliged to rely and does rely on that part of clause 7 of the policy which states that if the company should disclaim liability and the claim be not refered to arbitration within 12 months of such disclaimer, the claim shall be deemed to have been abandoned. Evidently, the company cannot succeed without calling m aid this clause and 3-6 S. C. India/71 1952 Ruby General Insurance Co. Ltd. v •. Pearcy Lal Kumar and- Another. Fazl - Ali. J. 1952 Ruby General Insurance Co. Ltd. v. Peuey Lal Kumar •ntl Another. F•d Ali f. 508 SUPREME COURT REPORTS [1952] rely.ing on it. Agajn, the first respondent does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made. The position therefore is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party, also relying on that cla11Se, says that there has been no breach but on the other hand the requirements . of that clause have been fulfilled. Thus, the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement. it is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdiction to decide it, the parties having made him the sole judge of all differences arising out of the policy. , A large number of cases were cited before us on behalf of the parties, but it is unnecessary to refer to them, since the question which arises in this appeal is a simple one and is covered by the statement of law which is to be found in the decision of this Court in A. M. Mair & Co. v. Gordhandas; Sagarmull('), and in a series of English authorities, some of which only may be referred to. In Heyman v. Darwin;, Ltd. (t) the law on the subject has been very clearly stated in the following passage :- «An arbitration clause is a written submission, agreed to by the parties to the contract, and, like otha written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is :u to whether the contract which contains the clause has (!ver been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initi"o (because, for example, the making of such a contract is illegal) the arbitration (I} [19SOJ S.C.R. 792. (2) [1941) I A. E. R. 337,343. - - ' .... - :S.C.R. SUPREME COURT REPORTS 509 dause cannot operate, for on this view the clause itself is also void. If, however, the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them as to whether there has been a breach by one side or the other, or as to whether -circumstances have arisen which have discharged one o0r both parties from further performance, such differ- ~nces should be regarded as differences which have arisen 'in respect of', or 'with regard to,' or 'under' the contract, and an arbitration clause which uses these, or similar expressions, should be construed .accordingly.'' In Macaura v. Northern Assurance Co.(1), the :41ppellant had insured a large quantity of timber against fire and the greater part of the timber having been destroyed by fire, he sued the insurance company to recover the loss but the action was stayed and the matter was referred to arbitration in pursuance of the conditions contained in the policy. The arbitrator held that the claimant had no insurable interest in the -goods insured and disallowed .the claim. One of the points raised in the case was that the arbitrator had no jurisdiction to decide the matter, but that contention was rejected by Lord Sumner in these words :- "The defendants do not repudiate the policy or dispute its validity as a contract; on the contrary, they rely on it and say that according to its terms, -express and implied, they are relieved from liability : !CC Stebbing's case(2}, Woodall v. Pearl Assurance c~.e> .... It is a fallacy to say that they assert the policy to be null and void." In Stebbing v. Liverpool. and London and Globe Insurance Company Limited(2), to which reference was made by Lord Sumner, the policy of insurance contained a clause referring to the decision of an arbitrator "all differences arising out of this policy". It also (I) (1925] A.C. 619. (3) [1919] l K.B. 593. (2) [1917] 2 K. B. 433. 1952 Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar ond Another. Fazl Ali f. Ruby General lnsuranc~ Co. Ltd. . v. Pearey Lal Kumar and Another. Fazl Ali f. 510 SUPREME COURT REPORTS [1952] contained· a recital that the assured had made a proposal and declaration as the basis of the contract, and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers • One of the conditions provided that if any false declaration should be made or used in support of a claim all benefit under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in ·the arbitration· and that the arbitrator had no power to determine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading C. J. observed as follows : - "If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact inducing the contract, of which the force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they . say that the parties have agreed that the statements in question are material and that they 'induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy ·but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy." The main. contention put forward on behalf of the appellant is that the points in dispute fall outside the jurisdiction: of the artibitrator, firstly because the existence of the arbitration agreement is challenged, and seconaly, because the sole object of the application under section 33 of the Arbitration Act is to have the - - ... . S.C.R. SUPREME COURT REPORTS 511 effect of the arbitration agreement determined. In our opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither party's case that there is no arbitration agreement in the policy. On the other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention. cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists, but that is very different from saying that the agreement never existed or was void ab initio and therefore is to be treated