Dulat ( 1 ) THE respondents had entired into a hirepurchase agreement with the appellant Company, and in that agreement there was an arbitration clause. Certain disputes having arisen subsequently, the appellant-Company handed over the dispute to the arbitrator named in the agreement. The respondents did not appear before the arbitrator nor otherwise submit to his jurisdiction, and in the result, an ex-parte award was made. When the award was filed in Court and a prayer for a decree on its basis made by the appellant-Company, several objections were raised by the respondents. One of these was that they had never consented to tire dispute being REFERRED TO the arbitrator, and the reference was, therefore, invalid as such a reference in law required the assent of both the parties and failing that an order of the Court. This objection prevailed and the learned Subordinate Judge hearing the case held that the reference to the arbitrator was invalid and incompetent. He relied for this on a judgment of the Supreme Court in Thawardas v. Union of India. In the result, the appellant s application was dismissed and the award set aside and it is against that decision that the present appeal is brought. ( 2 ) THE facts are not in dispute and the only question is whether the Court below has correctly understood the opinion of the Supreme Court expressed in Thawardas v. Union of India. The relevant observations of that Court occur in paragraphs 18 of the judgment. The Supreme Court was pressed to hold in that case that a point of law had been specifically REFERRED TO the arbitrator in that case, and, negativing that suggestion, the Supreme Court said :- "we are of opinion that this is not the kind of specific reference on a point of law that the law of arbitration requires. In the first place, what was shown to us is no reference at all. It is only an incidental matter introduced by the Dominion Government to repel the claim made by the contractor in general terms under claim No. 5. In the next place, this was the submission of the "contractor alone. "having said this, Bose J. , speaking for the Court, proceeded to lay down the general law on the subject, and he said - "a reference requires the assent of both sides. In the next place, this was the submission of the "contractor alone. "having said this, Bose J. , speaking for the Court, proceeded to lay down the general law on the subject, and he said - "a reference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub-section (4 ). In the absence of either, agreement by both sides about the terms of reference, or an order of the Court under section 20 (4) compelling a reference, the arbitrator is not vested with the necessary exclusive jurisdiction. "having laid down the law in this manner, Bose, J. , proceeded to draw the conclusion. "therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be abound by the arbitrator s decision, the jurisdiction of the court to set an arbitration right when the error is patent on the face of the award is not ousted. "the language employed by the Supreme Court is plain enough, for it says clearly that "if one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub section (4 ). " ( 3 ) MR. Radhey Lal Aggarwal for the appellant suggests that the observations of the Supreme Court were made when the learned Judges were considering whether in that case specific question of law had or had not been REFERRED TO the arbitrator, and they must be understood as confined to such a situation so that, according to learned counsel, the meaning of the above-quoted passages is simply this that a specific question of law cannot be REFERRED TO an arbitrator unless both parties agree that it will be so referred. In support of the suggestion, learned counsel points to the conclusion drawn by Bose, J. and expressed thus. . . . . . In support of the suggestion, learned counsel points to the conclusion drawn by Bose, J. and expressed thus. . . . . . "therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be bound by the arbitrator s decision, the jurisdiction of the Court to set an arbitration right when the error is patent on the face of the award is not ousted. "that such was the conclusion in that particular case is not in doubt. The point is that that conclusion was the result of and followed the general statement which precedes it beginning with the words "areference requires the assent of both sides. " There is no indication here that the reference in contemplation is a reference about a question of law and when Bose, J. ,goes on tosay; "if one side is not prepared to submit given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the Court," he is not speaking of any question of law being REFERRED TO arbitration but speaking generally of any given matter about which there may be a previous agreement to refer to arbitration. It is, in the circumstances, hard to agree with Mr. Aggarwal that the observations of the Supreme Court and the law of arbitrations laid down in the passages quoted above are confined to a reference involving specifically a question of law. On the other hand, the observations are in general terms and cover every kind of reference, and Bose,. J. , says clearly that if one of the parties is unwilling to go to arbitration in spite of there being a previous agreement about the matter, then that party has to be compelled by court under secition 20 of the Act. Without such an order the arbitrator gets no jurisdiction. It seems to me therefore, that Court below was right on its understanding of the Supreme Court observations. ( 4 ) REFERENCE was made in the course of arguments to another decision of the Supreme Court, M/s. Alopi Parshad v. Unionof India" but nothing said there really assists the appellant s argument nor throws much light on the earlier judgment. It seems to me therefore, that Court below was right on its understanding of the Supreme Court observations. ( 4 ) REFERENCE was made in the course of arguments to another decision of the Supreme Court, M/s. Alopi Parshad v. Unionof India" but nothing said there really assists the appellant s argument nor throws much light on the earlier judgment. Four other decisions have been REFERRED TO three of them of the Allahabad -High Court and one of the Bombay High Court in which Thawardas v. Union of India has been mentioned. Thefirst is Balika Devi v. Kedar Nath. In that case One of the parties to a dispute suggested the name of an arbitrator but the other party refused to agree. The first party thereupon made an application under section 8 of the Arbitration Act, requesting the Court to appoint an arbitrators. Objection was taken that such an application was not competent and in support of that objection reliance was placed on the observations of Bose, J. ,- in Thawardai s case that where one of the parties does not agree to a reference, recourse must be had to section 20 of the Arbitration Act, the suggestion being that section 8 proceedings would not be competent. The learned Judges of the Allahabad High Court negatived that contention and found no support in the Supreme Court decision for the View th^t only an application under section 20 was competent in such circumstances and application under section 8 was not. The context, therefore, in which the Supreme Court judgement was cited, was entirely different from the present. The next, case, a!so of the Allahabad High Court, is 0m Parkas v. Union of india. In that case the learned judges held that an arbitrator appointed by one of the parties was not competent to act as his appointment was not made by the Court and in support of their conclusion that a reference out of Court caanot be made by one party alone, they relied on Thawardas v. Union of India, more or less that same way as the Court below in the present case has done. This decision, therefore, supports the respondents and not the appellant. The third case is from Bombay, M/s. Vallabh Pittey v. Narsingdas . This decision, therefore, supports the respondents and not the appellant. The third case is from Bombay, M/s. Vallabh Pittey v. Narsingdas . In that case, however, objection had been taken to the arbitrator s jurisdiction on the ground that there was in fact no arbitration agreement and without going into the question the Court below had decided on the very basis of the denial that the arbitrator had no jurisdition. When the matter went to the Bombay High Court, it was held that the question of fact had to be decided and the jurisdiction of the arbitrator depended upon the fact whether there had or had not been an arbitration agreement between the parties and the mere denial by one party of such an agreement would not conclude the matter Patel, J. , delivering the judgment of the court observed in that connection- "in a case where a question is raised that there is no arbitration agreement, the Court is bound to decide it and make its decree in accordance with the said decision. "reliance was placed on the Supreme Court Judgement in Thawardas s eqse for the proposition that if one party denies the existence of such an agreement, the jurisdiction of the arbitrator is ousted. The Bombay High Court found no support for such a proposition in the Supreme Court decision and, if I may add with great respect, there is indeed none to be found in that jugdment. Again, it is clear that the content, in which the decision was relied upon, was very different from the present case. The last case is a full Bench decision of the Allahabad High Court, Mangal Prasad v. Lachman Prasad, but there again the context was very different. A dispute had been REFERRED TO an arbitrator who had entered upon the reference and taken a considerable time over it. A suit as then filed by one of the parties in respect of the same dispute. The opposite party made an application under section 20 of the Arbitration Act saying that there was an arbitration agreement which should be brought to Court and the dispute should be REFERRED TO the arbitrator and a decree should be made on the award to be made by him. That application was opposed. The opposite party made an application under section 20 of the Arbitration Act saying that there was an arbitration agreement which should be brought to Court and the dispute should be REFERRED TO the arbitrator and a decree should be made on the award to be made by him. That application was opposed. The question before the Full Bench was whether in the circumstances of that case an application under section 20 was competent as the arbitrator Pad actually entered upon the reference and proceeded with it. The court held by a majority of two against one that an application under -section 20 was not in the circumstances competent as the arbitrator had started to function after entering upon the reference but was unable to proceed with it because of the non-co-operation of one of the parties. Thawardas v. Union of India was cited to support the contention that a recalcitrant party can be compelled to submit to arbitration only through an application under section 20 of the Arbitration Act. The majority of the Full Bench held that the observations of the Supreme Court concerning section 20 of the Arbitration Act REFERRED TO situation where the arbitrator had not entered upon the reference and did not contemplate a situation where the arbitrators had entered upon the referrence. This opinion of the Pull Bench whether right or wrong, does not really assist the argument of either side in the present case, for here the question is whether, if reference to the arbitrator is only by one of the parties to the agreement without the consent or agreement of the other party and without the other party submitting to the arbitrator s jurisdiction, the arbitration can validly proceed with the matter, and, as far as that question goes, the only answer is to be found in the observations of the Supreme Court which I have already REFERRED TO at some length, and the meaning in my opinion is that such a reference must be with the consent of both the parties, and in the absence of such consent only a Court s order under the arbitration Act, can give Jurisdiction to the arbitrator and, apart from these two contingencies, the arbitrator has no jurisdiction. ( 5 ) FOR these reasons I find myself in agreement with the view of the trial court that in the present case the arbitrator could not have validly proceeded with the award and his award has been set aside for good reasons I, therefore, affirm the decision of the Court below and dismiss the appeal but, considering the circumstances, leave the parties to bear their own costs in this court. ( 6 ) I agree.