1. M. R. KHAN, J.-This appeal by special leave is from the judgment and order of a Division Bench of the High Court of East Pakistan refusing to interfere in revision with a decree made in terms of an award.
2. The appellant Messrs Afiluddin Brothers Ltd. (hereinafter referred to as seller) and the respondent Messrs Pak. Jute Balers (hereinafter referred to as buyer) entered into a written contract on the 21st June 1963. By this contract, the seller agreed to sell to the buyer 1000 pucca bales of raw jute (Export Lighting) at the rate of Rs. 155 per bale, and the delivery of the said quantity of jute was to be made in three equal installments in the months of October, November and December 1963. The seller offered to deliver the October consignment in due time, but the buyer having inspected the consignment found it to be inferior in quality and rejected it. As regards the consignments due in November and December 1963, the seller was alleged to have failed to offer any delivery in- spite of the buyer's requests for the same. Accordingly, the buyer duly cancelled the contract in respect of each consignment and referred the matter in dispute to the Narayanganj Chamber of Commerce and industries for arbitra--tion in accordance with the arbitration clause contained in the contract. A Board of arbitrators constituted for the purpose made an award in favour of the buyer in the sum of Rs. 8,400 which represented the difference between the prevailing market rate and the contractual price. The award was duly filed in the Second Court of the Subordinate Judge, Dacca, whereupon title Suit No. 114 of 1964 of that Court was started. The seller contested the suit mainly contending that the award was illegal and invalid inasmuch as the arbitrators constituting the Board of arbitration misconducted themselves in not calling for any evidence and making the award without giving the seller an opportunity of being heard. The Court rejected this contention and made a decree in terms of the award. The seller's appeal against this decree was dismissed on merits by the Second Court of Additional District Judge, Dacca. Against the appellate decree, the seller moved a revisional application in the High Court, but it was also dismissed.
3. Leave was granted in this case to consider if the arbitrators committed any legal misconduct rendering the award invalid.
4. Legal misconduct means misconduct in the judicial sense arising from some honest, though erroneous, broach and neglect of duty on the part of the arbitrators causing miscarriage oft justice.
5. Mr. Fazlul Karim, learned counsel for the appellant submits that, in the instant case, the arbitrators did not inform his client the date of hearing of the arbitration proceeding, that they did not call for any evidence and that they made an ex part award on the basis of the one-sided statement of the buyer, without giving his client an opportunity of being heard. It is accordingly contended by him that the arbitrators committed legal misconduct for which the award is liable to be set aside. The question as to the alleged legal misconduct on the part of the arbitrators should be considered in the light of the facts of this case and the Rules of arbitration of the Narayanganj Chamber of Commerce and Industries.
6. It appears from the record that after the matter in dispute had been referred to arbitration, a Board of arbitrators was duly constituted, and both the parties were informed about it by the Registrar of the Tribunal of Arbitration. Being asked by the Registrar, both the parties submitted their respective statements of the case on the basis of the letters exchanged between them. They also filed rejoinders to the statements of each other. These statements and rejoinders were then placed before, the arbitrators with intimation to both the parties. The statutory period for the purpose of making an award having expired in the meantime, another Board of arbitrators was constituted with the written consent of both the parties, and the papers already submitted by them were placed before the new Board with intimation to them. Thereafter the arbitrators, having considered the statements and papers submitted by both the parties, made the award in dispute. Thus, it appears that before making the award the arbitrators did not notify to either party the date of hearing of the arbitration proceeding, nor did they ask either party to produce further evidence or to appear before them for a personal hearing. On these facts, it is not correct to say that the arbitrators made an ex parse award behind the back of the appellant on the basis of the one- sided statement of the buyer.
7. According to the arbitration clause contained in the contract between the parties, the arbitration proceeding was to be regulat--ed by the Rules of the Narayanganj Chamber of Commerce and Industries. Rule XVI of the said Rules which is relevant here, runs thus :- "The dispute will be decided by the Board on the Written Statement of the parties and oral evidence will not be taken nor will the parties be entitled to appear, nor any formal hearing be held provided that the Board shall have power to take such evidence as, in its absolute discretion, it thinks proper and for such purpose the Board may, if it thinks fit, appoint a time and place for hearing such evidence. At such hearing none -of the parties to the reference or their representatives shall be entitled to examine or cross-examine any witness or the other party or his representatives but the Board only shall have power to examine the witnesses, the parties or their representatives."
8. Mr. Fazlul Karim cited the case of Amin Jute Baling Co. Ltd. v. Aminpur Union Co-operative Multi- Purpose Society Ltd. (PLD 1961 Dacca 102) in support of his contention that the arbitrators were under a duty to call for evidence to determine the disputed question of facts. In that case, a Division Bench of the High Court of East Pakistan observed :--- "It is true that such Commercial Arbitrators are chosen for their knowledge and experience of the trade so that they may be able to determine questions like market rate and damages without taking any evidence, but that does not mean that they will be able to determine the disputed question of facts, namely, whether the defendants, alleged tender was illegally refused by the plaintiff or not without going into evidence. These Arbitrators have got to determine these questions judicially. If they blindly accept one party's statement on the disputed question of facts, it may very well be urged that they failed to apply their minds to the questions before them, and, as such, they were guilty of misconduct and dereliction of duty."
9. It appears that this observation was made having regard to the seller's contention that he had actually tendered evidence, but the same was refused by the arbitrators. In the present case, however, the seller did not ever offer to give any evidence, in addition to the letters exchanged between the parties which had already been placed before the arbitrators. In the cited case, the learned Judges did not lay down any inflexible rule that the arbitrators are bound to take evidence in every case involving a disputed question of facts and that the failure to take evidence would amount to misconduct on their part. This will be evidence from the further observation of the learned Judges, which is as follows :- "The Arbitrators must remember that they determine the matter referred to them judicially. They should, therefore, be well-advised to go into evidence when the nature of dispute requires it."
10. Thus, the necessity for taking evidence, even according to the learned Judge, will depend on the special facts of each case. In the present case, the arbitrators, as already stated, had materials before them for adjudicating the dispute. Therefore, the above--cited case is of no assistance here.
11. There is no merit in this appeal. The appeal is accordingly dismissed with costs.