AJMAL MIAN, J.-This High Court Appeal is directed against the judgment of a learned Single Judge of this Court dated 5-1-1976 passed in Suit No. 291 of 1974 dismissing the appellant's objections to the award and making the award a rule of the Court.
2. The brief facts leading to the filing of the above appeal are that the appellants and the respondents entered -into several agreements, whereby the appellants agreed to supply certain quantity of bales of cotton. It seems that under a contract dated 14-12-1972 the appellants supplied 200 bales of cotton on 23-12-1972 to the respondents anti received a sum of Rs. 1,26,000, leaving a balance of Rs. 28,70:1.89. It is the case of the appellants that for recovery of the above amount, they filed Suit No. 62/47 of 1975 in the Court of Civil Judge, Ist Class Liaquatpur, on 31-1-1973, which was decreed on 5-3-1976. It seems that there was another contract between the appellants and the respondents, whereby the appellants undertook to supply 1000 bales of cotton under a sold note dated 27-11-1972 signed by the brokers on behalf of the parties. Certain dispute arose in respect of the above contract. After that on I-6-1973 the respondents referred the dispute to arbitration under Bye-Law 39-I of the K. C. A. Bye-Laws. The above arbitration was repudiated by the appellants on 6-6-1973 on the ground that they were not the member of the Karachi Cotton Association (hereinafter referred to as the K. C. A.). However, it seems that the respondents appointed their arbitrator as per Bye-Law 39-I and called upon the appellants to appoint their arbitrator on their behalf. It further seems that the appellants filed suit No. 266/74 for declaration and injunction. In the District Court Karachi, in which by an order dated 25.7-1973 the arbitration proceedings were stayed, but subsequently it was withdrawn. It also seems that the two arbitrators appointed one Mr. Rasheed as the Umpire, whom they referred the dispute instead of deciding themselves. It is the case of the appellants that on 6-10-1973 aforesaid Mr. Rasheed returned the papers to the Arbitrators and inquired from them as what was the difference of opinion between them. It is also the case of the appellants that the arbitrators instead of clarifying the above point caused the appointment of Mr. Dossa as the Umpire by the K. C. A. In place of Mr. Rasheed, the latter entered upon the reference, before whom the appellants filed objections including about the validity of his appointment. However, Mr. Dossa proceeded with the arbitration. According to the appellants they appeared before him under protest. The above arbitration proceeding culminated into an award dated 18-4-1974 awarding a sum of Rs. 90,600 in favour of the respondents with interest and cost.
The appellants being aggrieved by the above award filed objections in the above suit, which were dismissed by the above judgment dated 19-1-1976 by the learned Single Judge. The appellants being aggrieved by the above judgment have filed the present High Court Appeal.
3. Mr. Hassan A. Shaikh, learned counsel for the appellants, in support of the above appeal has raised the following contentions :-
(i) that a broker cannot enter into concluding contract particularly in respect of arbitration ;
(ii) that since the suit filed by the appellants, namely, Suit No. 266/74 for declaration and injunction is still pending in the Court of Civil Judge at Karachi the award is void under section 35 of the Arbitra--tion Act.
(iii) that Mr. Dossa had no jurisdiction to adjudicate upon the disputes for the following two reasons:-
(a) that he was not validly appointed in place of Mr. Rasheed, who had not declined to act as the Umpire ;
(ii) that in any case there was no difference of opinion between the arbitrators as to warrant the reference to an Umpire.
(iv) that under the relevant Bye-Law-of the K. C. A., the award was to be given within thirty days, whereas the above award was given in 4 months in spite of the fact that there was no agreement between the parties to enlarge the time for giving the award,
(v) that in any case the contract in question was being a factory relection contract, the arbitration could have been invoked under Bye-Law 39-11 and not under Bye-Law 39-I.
4. Since the question as to whether the arbitration could have been invoked under Bye-Law 39-I or it should have been invoked under Bye-Law 39-IL is a question which goes to the root of the matter, we asked the learned counsel for the parties to address their arguments on the above point.
It has been vehemently urged by Mr. Zafar, learned counsel for the respondents, that the contract in question was not a factory selection contract inter alia for the following reasons :-
(i) that at no point of time the contract was specified as a factory selection contract and that the same was not executed, in the prescribed form ;
(ii) that the arbitrator Umpire had issued notices to the parties on the basis that they were acting under Bye-Law 39-I, but the appellants did not raise any objection to the effect that Bye-Law 39-II was applicable ;
(iii) that the selection factory contract could only be between two members and not between member and non-member.
5. (a) In order to appreciate the respective contentions of the parties, it may be advantageous to qoute hereinbelow the above sold note, which reads as follows :--- Muhammad Hanief Maniar & Co.
20-Cotton Exchange Building, Cotton Brokers No. 1169 Karachi 27-11-1972 To Messrs Mark N.
We confirm having this day done the following business for our clients account.
Bales Rate Delivery Quality Station Buyer Seller Remarks 1000UnfixImmediate289 FRg-Liaqat-AbdulMeher pur Shakoor Cotton Factory & Bros. (Liaqatpur)
Rs. 7 Off spot Rate of 289 FRg of K. C. A. Ltd. Selection, Weighment, and Delivery at Factory, payment at Factory by L/C. Fixation at Seller's option up to 30-12-1972.
1000 B/s(Total one thousand bales only)
Sd.Provisional Confirmation from Brokers to Broker pending Buyer Broker regular Contract.
Subject to Bye-Laws of the Karachi Cotton Association Ltd.
(Sd.)
Sellers Broker 31-1-1973 It may be noticed that the above-sold note contemplated selection, weighment, delivery and payment of the price at the factory. It is, therefore, evident that for all intents and purposes, the contract was to be performed at the appellants factory and, therefore, prima facte the above contract was a factory selection contract. However, Mr. Zafar, learned counsel for the respondents has referred to the provisions of Bye-Law 157 in support of his contention that it was not so. It may be observed that by law 157 provides that a factory selection contract will be a delivery contract transferable non--transferable, whereas, Bye-Law 158 provides that against the factory selection contract only cotton ginned and pressed at .The place or paces mentioned in the contract shall constitute a fair tender... Further more, Bye-Law 159 provides that against all factory selection contracts minimum/maximum quantity of each lot shall be of 100 bales cotton of the weights mentioned therein. In our view nothing is contained in the above Bye-Laws, which detract from concluding that the contract in question was a factory selection contract.
(c) Reverting to Mr: Zafar's contention that the contract in question was not specified as a factory selection contract and that the same was not executed on the prescribed form under the bye-law of the K. C. A., we may again observe that in the instant case all the ingredients for constituting the contract, in question a factory selection contract were very much present, namely, selection, weighment, delivery and payment were to be done at the appellant's factory in our view there cannot be any better case than the instant case falling within the ambit of a factory selection contract. In this connection reference may also be made to the case of Messrs Muhammad Amin Muhammad Bashir Ltd. Karachi v. Messrs Star Oil and Ice Mills Limited, Multan (PLD 1973 Kar. 409).
A learned Single Judge of the Erstwhile High Court of West Pakistan, Karachi Bench repelled the contention of the learned counsel for the defendant that the contract which was the subject- matter of the arbitration in the aforesaid case was not a factory selection contract as it was not so specified in the contract as per definition contained in Bye-Law 2(14) and because it was not executed on the form prescribed. It was observed that the definition of the factory selection contract given in Bye-Law 2(14) of the K. C. A., did not provide any assistance. It was further observed that it is doubtful that it is the intention of the bye-law that the words "factory selection contract" should be endorsed in the title of the contract, but what is to be seen is whether the terms of the contract were such that from them, it is clear that it is a factory selection contract and that the essential ingredient of a factory selection contract is that the selection of cotton by the buyer is to be made at the seller's factory. In the instant case as pointed out hereinabove not only the selection but weighment, delivery and payment were to be made at the appellants factory. The above case on all force is applicable to the instant case.
(d) It is true that the contract in question was not executed in the form prescribed by the K. C. A. In this regard it may be pertinent to refer to the case of Messrs Gul Ahmed Textile Mills Limited v.
Messrs Stareo Limited (CLC 1981 1667in which the facts were that the plaintiff purchaser of certain quantity of bales of cotton invoked Bye-Law 39-1I of the K. C. A. Bye-Laws for arbitration for the breach of the contract on the part of defendant to supply the contracted goods and claimed certain amount as damages. The two arbitrators appointed by the K. C. A. Gave on award in favour of the plaintiff. ,The award was filed in the High Court, to which the defendant had filed objections.
In order to assail the above award inter alia it was urged by the learned counsel for the defendant that since the contract was not executed on the prescribed form, the invoking of arbitration under Bye---Law 39-II was not legal. It was also urged that the brother's sold note could not be treated as factory selection contract. Reliance was placed on Bye-Law 77 of the K. C. A., which provides that delivery contracts between the members shall be made on the official form given in the appendix.
It also contemplates registration of a contract on payment of the fee mentioned therein. While construing the above bye-law Saeeduzzaman, J. Held that the above by law was directory in its nature and its non-compliance could not render any contract as void unless such an inference could be drawn from the bye-law itself. It was further held that the form prescribed for a factory selection contract in Bye-Law 77 is applicable only where the contract is made between members in terms of the said bye-law. It was also pointed out that one of the parties to the arbitration namely, Messrs Starco according to their own showing on the date of the contract were not member of the K. C. A.
(e) It may be observed that on the basis of the above observation of the learned Single Judge in the aforesaid cited case of Messrs Gul Ahmed Textile Mills Ltd. To the effect that the execution on the prescribed form of a factory selection contract is only contemplated between the members, it was urged by Mr. Zafar that there cannot be a factory selection contract between a member and a non-member and that since the appellants were not member, there could not have been any factory selection contract between the parties. In our view the above contention is misconceived as no such inference can be drawn from the observation of the learned Single Judge in the above case as canvassed by the learned counsel for the respondents. The above observation is only to the effect that the execution of the factory selection in the prescribed form is contemplated between , two members and not between a member and non-member. However, in our view it does not mean that there cannot be any factory selection contract between a member and a non-member. It may be noted that in the above reported case the factory selection contract was concluded between a member and non-member which was upheld by Saeeduzzaman, J. Though the contract was not executed on the prescribed form. In our view the above case on all fours is against the respondents.
6. We may also refer to the case of Messrs Shaikh Hussain Bux & Co. v. Messrs Zebtun Textile Mills Limited PLD 1981 Kar. 28which was a judgment given by one of us (Ajmal Mian J.) in which it was held that a sold note signed by a broker on behalf of vendor and purchaser containing note to the effect that the transaction being subject to Bye-Laws of K. C. A. Constitutes an arbitration agreement within the ambit of section 2(a) of the Arbitration Act, 1940 provided broker concerned proved to have acted as agent for vendor as well as for purchaser under their authority.
7. It was next contended by Mr. Zafar that Bye-Law 154 of K. C. A. provides procedure in case where there has been any failure on the part of a member', whereas Bye-Law 155 provides penalty on failure on the part of a member to pay difference or any other sum due under the bye-laws and that the above provisions cannot be pressed into service against a non-member and, therefore, it follows that the factory selection contract could have been between two members and not between a member and non-member. In our view the above contention is devoid of any force.
Since Bye-Law 39-I1 contemplates arbitration between a member and non-member the fact that certain bye-laws would not be applicable to a non member for penalizing him on account of his failure, would not undo the provisions relating to arbitration. The arbitration agreement is an independent agreement which comes into existence in a transaction of sales/purchase of sales of cotton on account of the fact that the contracting parties are members of the K. C. A. Or if both or any of them is not a member of the K. C. A. The arbitration agreement is pressed into service because the Con--tracting parties voluntarily make their contract of sale purchase subject to bye- laws of the K. C. A.
8. (a) With reference to the contention of Mr. Zafar that the arbitrators and Umpire had issued notices on the basis of Bye-Law 39-I and that as the appellants had not raised any objection, they are not entitled to raise the above plea, it may be observed that the above contention might have been fatal to the appellant's above appeal if the same would have been well founded. In this regard, it may be pertinent to refer to paras. 6 and 10 of the appellant's application objections to the award filed by the appellants in the aforesaid suit and paras. 6 and 10 of the respondent's repty thereto, which read as follows;-- "6. Application Objection-However the plaintiffs appointed two arbi--trators, one on their own behalf and one on behalf of Defendants purported to be under Bye-Law No. 39-I (A) of the Karachi Cotton Association. Limited. Without prejudice to other contentions, it is respectfully pointed out that since the alleged contract of sale of 1000 bales as alleged by the plaintiffs was factory selection contract, Bye--Law 39-1 did not apply for reference to arbitration. In the cases where the contract is factory selection contract, the procedure for reference to arbitration appointment of umpire, etc., is contained in Bye-Law 39-II of the Karachi Cotton Association Limited. The defendants received a notice from the said two arbitrators dated 27.6-1973. True copy of the notice dated 27-6-1973 is produced herewith and marked as Annexure 'E'.
10. That as has been stated in para. 9 above the factory selection contracts are governed by Bye- Law 39-II of the Karachi Cotton Association Limited and by Bye-Law 39-II has no application. The appointment of Mr. Dossa as Umpire by the Karachi Cotton Association is against the provisions of the bye-laws of the Karachi Cotton Association and the proceedings before him were illegal and without jurisdiction. However, even under Bye-Law 39-1 of the Karachi Cotton Association Limited, in case, the two arbitrators are' unable to agree, the matter is to be referred to an umpire who is to be nominated by the arbitrator from amongst the panel of the arbit--rators prepared by the Karachi Cotton Association Limited. As has been stated, in the preceding para. The two arbitrators had nominated Mr. A. Rashid as `Jmpire and had sent the file to him for decision although there was no indication that they had failed to agree. However as it transpired later, the defendants received a notice from Mr. Dossa dated 11-1-1974 directing the defendants to appear before Mr. Dossa_ stated that he was appointed as Umpire by the Karachi Cotton Association Limited. It is respectfully pointed out that the Karachi Cotton Association Limited can appoint an umpire, even -under Bye- Law 39-1, only in the event of the two arbitrators being unable to agree as to the name of the umpire. In this case there is nothing on record to show that the two arbitrators had not agreed to the name of the umpire. On the contrary, the two arbitrators had nominated Mr. A. Rasheed .As umpire and had sent the file to him. Copy of notice of Mr. Dossa the umpire dated 11-1-1973 is filed here with and marked as Annexure 'I'.
"Reply-(6) That the para. (6) is not admitted, as the reference to arbitration Under Bye Law 39-I - of the Karachi Cotton Association Ltd. Is to apply the Contracts, which are not registered ;with the Karachi Cotton Association Ltd., the Bye-Law 39-I1 is apply to the Factory selection contracts are registered with the Karachi Cotton Association Ltd. (10) That the para. (10) is ambiguous, as Bye- Law 39-II is applicable to those dispute of Factory Selection contract only registered with the Karachi Cotton Association Ltd., and Bye-Law 39-I is applicable to those dispute, contracts of which are not registered with the K. C. A., hence the appointment of M. H. Dossa as an Umpire by the K. C.
A. Under Bye-Law 39-1(b) is a legal appointment: The two arbitrators had agreed to the appointment of Abdul Rashid, as an Umpire prior to taking up the proceedings under Bye-Law 39-I vide their Notice dated 27-6-1973 to the defendant is on the record of the file. The appointment of Mr. M. H. Dossa by the Board as on Umpire is a valid appointment in view of Bye-Law 39-I (j) of the Karachi Cotton Association Ltd."
(b) It be may noticed that though the appellants had raised the plea express--ly that Bye-Law 39- 1i was applicable and that arbitration proceedings and the award were not valid but the respondents had not raised any plea to the effect that the appellants were not entitled to raise the said plea on account of their failure to urge the same before the arbitrators or the umpire nor it was contended by them before the learned Single Judge as is indicated from the judgment under appeal. 1n view of the above state of pleadings, in our view it would not be just and proper to hold at the appellate stage that the appellants are not entitled to raise the above plea on account of their failure to urge the same before the arbitrators or the umpire.
9. (a) Having held that Bye-Law 39-I1 of the K. C. A. Was applicable to the instant case, the question arises what is the effect of making reference to arbitration under Bye-Law 39-I instead of under Bye-Law 39-II. In order to appreciate the above point, it may be advantageous to reproduce herein below Bye-Laws 39-I and 39-1I, which reads as follows :- 39-1(a) Arbitrations regarding question other than quality except factory selection contracts.-Any dispute arising out of a ready transaction or out of a forward contract other than on the question of class and/or staple of the cotton tendered but including the construction of the official forward contract forms shall be referred to the arbitration of any two disinterested members from the panel of Arbitrators referred to in Bye-Law 39-1(b) one to be appointed by each party., If one of the parties to the contract fails to appoint an arbitrator, after having received fifteen clear days' notice from the other party to do so, the party who has appointed an arbitrator shall have power to appoint the second arbitrator, both of whom shall then proceed to deal with the question at issue.
In case the two arbitrators are unable to agree the matter shall then be referred to an umpire, who shall be nominated by the two arbitrators from among the Penal of Arbitrators. In the event of two arbitrators being unable to agree as to the name of the umpire, the Board shall appoint an umpire from among the Panel of Arbitrators. The decision of the arbitrators or umpire shall be final and binding on the parties to the contract.
(b) The Board will appoint a Panel of Arbitrators consisting of not less than 30 per cent and not more than 50 per cent of the number of authorised representative 'on the registers of the Association every year who will hold office for one financial year or till such time as new Panel of Arbitrators if appointed by the Board.
(c) The member of the Panel will be informed of their selection by the Secretary and they will apprise the Secretary of their consent to work on this panel within 4 days -of the receipt of intimation about their selection and a written acceptance by them will indicate that they agree to abide by terms, conditions and rules which the Board may frame from time to time in this connection.
(d) The party applying for arbitration shall file a request with the Secretary of the Association specifying
(i) the name and address of the other party ;
(ii) the kind and the nature of the controversy and all contract terms having reference thereto ;
(iii) the name and address of his arbitrator selected from the Panel of Arbitrators constituted by the Board of the Karachi Cotton Association Ltd..
(e) Under no circumstances shall any one of the Panel of Arbitrator having a direct or in direct interest in the dispute be allowed to act as arbitrators or umpire.
(f ) The two arbitrators, when appointed, shall before proceedings with the dispute nominate and appoint an umpire from the Panel of Arbitrators to deal with the dispute, in case the two arbitrators are unable to agree. In case of disagreement between the two arbitrators regarding the umpire, the Board shall appoint an umpire from the Panel.
(g) The arbitrators shall make their award within one month after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow or within such extend time as the parties may agree upon as provided for by Bye-Law 39 (k) and shall send a copy of the award duly signed by them to the Secretary of the Association.
(h) If the arbitrators have allowed their 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 stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitrators.
(i) The umpire shall make his award within one month after entering on the reference or after having been called upon to act by notice in writing from the arbitrators stating that they cannot agree, whichever is earlier, or within such extended time as the Court may allow or as the parties may agree upon as provided in Bye-Law 39 (k). The umpire shall send a copy of the award duly signed by him to the Secretary. To the Association.
(j) In the event of the umpire appointed by the arbitrators or by the Board, in terms of Bye-Law 39
(f) resigning either before or after taking up the reference on account of any reasons whatsoever, the Board will appoint another umpire in his place from the Panel referred to in Bye--law 39 (b) and the said appointment shall be as effectual as though it had been originally made by the arbitrators or by the Board as the case may be in terms of the Bye-Law 39 (b),
(k) The arbitrators and/or the umpire as the case may be, may enlarge the time for making the award from time to time with the consent of all the parties to the arbitration agreement.
39-II.':Arbitrations Governing Factory Selection Contract.-There will be a Panel of 36 arbitrators consisting of 18 from Buyers/Exporters and 18 from the Sellers/others groups appointed by the Board as soon as possible after the beginning of the calendar year to deal with arbitration regarding Factory Section Contract.
All disputes arising out of Factory Selection Contracts and other forward contracts registered with the Association shall be referred to the Arbi--tration of two disinterested arbitrators drawn by ballot, one from the seller's panel and the other from the buyer's panel of arbitrators as appointed by the Board, by the Secretary of the Karachi Cotton .Associa--tion Ltd. In the event of the arbitrators or any of them resigning either before or after taxing up the reference for any reason whatsoever, a fresh ballot shall be drawn for the appointment of another arbitrator or arbitrators as the case may be from the remaining members of the Panel in the same manner in which the original arbitrator and/or arbitrators were appointed and the appointment so made shall be as effectual as though originally made.
The Association shall also register any factory selection contract entered into between members and/or member and non-members on any mutually agreed terms and conditions between the parties and any dispute arising out of such contracts shall be governed under Bye-Law 39-11.
All complaints will be submitted in writing to the Secretary, Karachi Cotton Association Limited, by the parties concerned and the Secretary will draw the names of the arbitrators by ballot from the Panel of Arbitrators and announce within 24 hours of the ballot.
Note. The Secretary will take care to remove the names of interested parties and members of the Panel who are away from the station, and so unable to give their decision as arbitrators within the specified period.
The arbitrators shall complete the arbitration within 30 days following the day of their taking over the reference.
In case the two arbitrators be unable to agree or fail to complete the arbi--tration within 30 days; the matter will be referred to a disinterested Um--pire, who will be drawn simultaneously with the arbitrators from either Panel of Arbitrators by ballot by the Chairman or in his absence by the Vice- Chairman or by the Secretary from the disinterested members of the two Panels. In the event of the umpire resigning either before or after taking up the reference for any reason whatsoever, a fresh ballot shall be drawn for the appointment of another umpire from the remaining members on the Panel in the same way in which the original umpire is appointed and the appointment so made shall be effectual as though it had been made simultaneously with the arbitrators.
The umpire shall carry out the arbitration within 30 days following the day of his taking over the reference. The award of the arbitrators or of the umpire, as the case may be, shall be final and binding on both the parties and no appeal shall be made against the award.
If the arbitrators or the Umpire fail, without assigning reasons to carry out the arbitration within the period specified, their name or names shall automatically be removed from the Panel of Arbitrators.
All awards made by the Arbitrators or an Umpire under Bye-Laws 39-I or 39-II shall be implemented within two weeks from the date of their receipt in the office of the Association. In case the losing party fails to implement the award within the said period of two weeks, the defaulting member shall be liable to expulsion, suspension or payment of a fine which shall not exceed the amount of the award, or both to expulsion or suspension and the payment of such fine at the discretion of the Board. Provided however, that it shall be open to the party against whom the award has been made to deposit the amount payable by him under the award with the Association, within two weeks from the date of the receipt of the award in the office of the Association and to proceed to challenge the award in any Court of law within a period of one month of depositing the amount of the award with the Association: Provided further that the provision for implementation of award shall not be applicable in the case of a dispute between a member and a non-member.
The Association shall hold such amount in deposit with them until the time of the final adjudication of the award by the Court. If the award is confirmed by the Court, the amount of the award or such amount as is awarded by the Court, but not exceeding the amount deposited with the Association, shall be paid by the Association, out of the said deposit, to the party in whose favour the award has been given. In case the Court .Sets aside the award the deposit hold by the Association will be refunded to the depositor. No interest will be payable by the Association to either party.
If for any reasons whatsoever, the arbitrators do not take over .Or enter on the reference for a period of 3 months commencing from the date of communication of their appointment as arbitrators to them, they will automatically cease to function as arbitrators for that particular matter and a fresh ballot will be drawn as provided for in Bye-Law 39-II from among the remaining members on the panel so far as the appointment of arbitrators is concerned but the Umpire originally selected will continue to function as Umpire.
(b) It may be observed that Bye-law 39-1 provides a different mode of appointment of arbitrators, namely, one arbitrator is to be appointed by each of the parties from the penal of the arbitrators referred to in clause (b) of the aforesaid bye-law. Furthermore, on failure on the part of a party to appoint his arbitrators party within 15 clear days from the service of a notice, the party who has appointed his arbitrator, has the right to appoint an arbitrator on behalf of the defaulting party. In the instant case it is an admitted position that the appellants refused/failed to appoint their arbitrator and consequently the respondents appointed an arbitrator on behalf of the appellants.
On the other band Bye-Law 39-II provides appointment of two arbitrators from the penals of sellers and buyers by the Board i. e. The K.C.A. And not by the parties.
(c) In our view the fact that the respondents had invoked Bye-Law 39-1 instead of Bye-law 39-II in a case of factory selection contract, has vitiated the arbitration proceeding and the award given as a result thereof. The reasons found favour with the learned single Judge for holding that Bye-Law 39-I was validly invoked for arbitration by the respondents are based on the assumption that the contract in question was not a party selection contract, which is no factually correct for the reasons recorded hereinabove. In this view of the matter, the judgment under appeal cannot be sustained.
10. For the aforesaid reasons, we allow the appeal on the above ground and set aside tile judgment under appeal and declare that the award was void. In the circumstances of the case there will be no order as to costs.