T. P. S. Chawala, J. ( 1 ) PHONENIX Cotton Tape Factory, Delhi, the name and style in which, at all material times, a Mr. S. Aggarwal carried on business as sole proprietor. He is the petitioner in this case. In 1963 he submitted a tender to the Director General of Supplies and Disposals at the latter s office in Bombay for certain goods required by the Union of India. The tender was accepted and a letter of acceptance was issued. In the contract operative between the parties there was an arbitration clause which provided that disputes arising under the contract would be "referred tu the sole arbitration of the Director General of Supplies and Disposals or of some other person appointed by him. " ( 2 ) DISPUTES did arise, and in 1967 an arbitrator was appointed- It appears that the Arbitrator originally appointed was replaced by others, but nothing turns on that. All of them wished to hold the proceedings in Bombay. The petitioner wanted the proceedings to be held in Delhi. Consequently, he applied a number of times to the arbitrators for change of the venue from Bombay to Delhi. His applications were invariably rejected. ( 3 ) MR. P. H. Ramchandani was the Arbitrator in 1970. He issued notices requiring the parties to appear before him in Bombay on 4th May 1970. On that day no one appeared before him on behalf of the petitioner. Previously, Mr. Ramchandani, also, had rejected an application by the petitioner for change of the venue. An application dated 3rd February 1970 filed by the petitioner, for review of the earlier order, was pending on 4th May 1970. Mr. Ramchandani found that there were no grounds for reviewing his earlier order, and considered the application for review merely "another instance of their Clhe petitioner s) dilatory tactics". In the last paragraph of his order corded on 4th May he said : "this is an old case which was initiated in July 1967. Thus the case has been hanging on for the last about 3 years. Therefore, having due regard to all aspects of the matter, I am of the view that it is apparent that the claimant is not interested in going on with this matter. In view of this, the claimant s claims are dismissed for non-prosecution. ". Thus the case has been hanging on for the last about 3 years. Therefore, having due regard to all aspects of the matter, I am of the view that it is apparent that the claimant is not interested in going on with this matter. In view of this, the claimant s claims are dismissed for non-prosecution. ". A copy of this order was sent to the petitioner by the Arbitrator under cover of a letter dated 7th May 1970. No award was made by the Arbitrator. ( 4 ) SOON afterwards the petitioner moved an application under Sections 14 and 17 of the Arbitration Act 1940 (Suit No. 191-A of 1970) praying that the Arbitrator be directed to file his award. The Union of India opposed the application on two main grounds : (i) that this court had no territorial jurisdiction to try the application, and (ii) that the application was not maintainable as the Arbitrator had not made any award. At the hearing it was conceded on behalf of the petitioner that the order dismissing his claim for non-prosecution made by the Arbitrator was not an award. So by an order made on 13th January 1972 the application was dismissed on that ground and the objection as to territorial jurisdiction was not decided. ( 5 ) WHILST that application was still perding, the petitioner moved a petition under sections 5 and 12 (2) (b) of the Arbitration Act. That is the petition now before me. The respondents are the Union of India and Mr. P. H. Ramchandani, the Arbitrator. In this petition it is alleged that the Arbitrator has misconducted himself and the proceedings in that he has failed to deliver an award as he was bound to do, and has instead dismissed the claim of the petitioner for non-prosecution which he had no power tc do. Leave to revoke the authority of the arbitrator is prayed for, and also an order that the arbitration agreement shall cease to have effect with respect to the differences referred. Apart from joining issue on the merits, the Union has once again raised the point that this court lias no territorial jurisdiction to try the petition. According, the following issues were framed: 1. Whether the Delhi Court has jurisdiction to try the application? 2. Whether the arbitrator was empowered to dismiss the claim of the petitioner for non-prosecution? 3. Apart from joining issue on the merits, the Union has once again raised the point that this court lias no territorial jurisdiction to try the petition. According, the following issues were framed: 1. Whether the Delhi Court has jurisdiction to try the application? 2. Whether the arbitrator was empowered to dismiss the claim of the petitioner for non-prosecution? 3. Whether the arbitrator was bound to make the award in the case ? 4. Whether the arbitrator has misconducted himself and the proceedings ? 5. Whether the petitioner has a cause of action ? 6. Whether the authority of the arbitrator is liable to be revoked on the facts and circumstances of the case ? 7. Relief. Territorial jurisdiction is sought to be founded in this court on the basis of an alleged term in the contract that only the courts at H Delhi would have jurisdiction; and, alternatively, on a term that the goods would be delivered in Delhi. As to the first limb of the argument, it is not without significance that in its reply to the petition the Union has not specifically controverted the allegation of the petitioner that the contract contained a term vesting exclusive territorial jurisdiction in the courts at Delhi. There is, of course, a general denial in the form of an objection as to territorial jurisdiction. In amplification of this plea the Union has said that the contract was concluded in Boombay as the tender was submitted to and the acceptance issued from the office of the Director General of Supplies and Disposals, Bombay; and, also, that the arbitration proceedings were held in Bombay. Thus, it is contended, that only the courts at Bombay have jurisdiction. But, the allegation in the petition that there was a term in the contract that the courts in Delhi alone would have jurisdiction elicited no reply. I make that observation as of relevance to the inquiry whether there. was in fact such a term or not. ( 6 ) THE tender comprised a whole set of documents variously entitled. These very documents coupled with acceptance ultimately became the contract between the parties. Some preliminary matters need to be noticed. Clause 7 of the "schedule to Acceptance of Tender" provides that the general conditions of contract D. G. S. andd-68, as amended up-to-date, shall apply. Clause 11 (a) reads : "terms of Delivery- F. O. R. Delhi. These very documents coupled with acceptance ultimately became the contract between the parties. Some preliminary matters need to be noticed. Clause 7 of the "schedule to Acceptance of Tender" provides that the general conditions of contract D. G. S. andd-68, as amended up-to-date, shall apply. Clause 11 (a) reads : "terms of Delivery- F. O. R. Delhi. " That accords entirely with what was written in hand by or on behalf of the petitioner in another document entitled "schedule to Tender," not to be confused with the "schedule to Acceptance of Tender". From-which it is reasonable to infer that what was written by or on behalf of the petitioner in the tender documents was taken note of by the officers of the Union and incorporated in the contract. ( 7 ) AFTER the specification of goods in the "schedule to Tender" there are three notes marked N. B. The third of these enjoins : "tenders are requested to complete in full the questionaire 1 to 14 on the reverse of D. G. S. and D.-100b with particular reference to Q. No. 1 failing which their quotations likely to be ignored. Deviation, if any, should be clearly indicated. "the form D. G. S. and D-100-B referred to in this note is the "schedule to Tender" itself. Yet another document is entitled "special Instructions attached to Invitation to Tender". Paragraph 4 of these instructions is most important. It reads : "4. Jurisdiction : All questions, disputes or differences arising under, out of or in connection with the contract, if concluded, shall be subject to the exclusive Jurisdiction of the court within the local limits of whose Jurisdiction the place from which the acceptance of tender is issued is situated". Just where this paragraph ends, the words "at Delhi" have been written in ink. The petitioner maintains they were written before the tender was submitted. No suggestion has been made on behalf of the Union that the petitioner s allegation is false- Nor has any evidence been led or sought to be led to falsify that allegation. I must, therefore, proceed on the assumption that the words "at Delhi" existed in the tender at the time that it was submitted. No suggestion has been made on behalf of the Union that the petitioner s allegation is false- Nor has any evidence been led or sought to be led to falsify that allegation. I must, therefore, proceed on the assumption that the words "at Delhi" existed in the tender at the time that it was submitted. ( 8 ) IT was argued for the petitioner that by inserting those words he had indicated that the courts at Delhi would have exclusive jurisdiction in matters arising under, out of or in connection with the contract. Since the deviation which he had thus proposed was not rejected by the Union, he contends, it became a term of the contract. In support of this argument I was referred to the definition of "the contract" in clause l (i) (c) of D. G. S. andd.-68 which expressly includes "the instructions to tenderers". On this reasoning I was invited to hold that the parties were ad idem that the courts in Delhi should have exclusivejurisdiction. ( 9 ) IT seems to me that the crucial question is what, if any, meaning is to be attached to paragraph 4 of the "special Instructions" qualified by the words "at Delhi" appended thereto in hand. It is a well-known " principle of construction of documents that hand-written or type-written matter is to be given preference over what is printed : See Messrs Sha Moolchand Kesarimull by its partner. Presumably that is for the reason that what is inserted in hand or type-written in a printed form may be taken to show a particular application of mind, whereas it is not always sure that the printed matter was fully read and understood by the parties, more especially where, as here, the document is unwieldy and complicated. I perceive no reason why that principle should not apply here. ( 10 ) ALTHOUGH the two words-"at Delhi"-written after paragraph 4 of the Instructions do not in themselves make even a complete senfence and are unir. can ingful in isolation, I think, there is no real difficulty in comprehending what they were intended to convey juxtaposed as they are to that paragraph. Obviously, the person who wrote those words meant that paragraph 4 was to have effect subject to this that exclusive jurisdiction was to vest in the courts at Delhi and not in the court determined in accordance with the printed words. Obviously, the person who wrote those words meant that paragraph 4 was to have effect subject to this that exclusive jurisdiction was to vest in the courts at Delhi and not in the court determined in accordance with the printed words. Any person with a modicum of intelligence reading that paragraph of the instructions alongwith the hand-written words would be led to that conclusion. " At Delhi" is the elliptical answer to a supposed question, which courts would have jurisdiction? That is the question which would naturally arise in the mind of a tenderer reading paragraph 4. Hence that was the right place to indicate the deviation. Counsel for the Union was unable to suggest a more appropriate place for doing so in the tender documents- I think, the officers of the Union well understood what the hand-written words implied, notwithstanding the laconic style. That explains their inability to repudiate the allegation of the petitioner that the contract contained such a clause. If any doubt existed in their minds, they would have questioned the petitioner. Nothing of that kind ever happened. It was vaguely suggested in the discussion that perhaps the officers of the Union had not noticed the handwritten words and had allowed them to pass muster unwittingly. There is no plea to that effect, let alone evidence; and, certainly, I can make no such assumption. Reading paragraph 4 of the Instructions in this way, I have reached the conclusion that on its true construction it embodies a term in the contract that the courts in Delhi would have exclusive territorial jurisdiction. ( 11 ) IF the view that I have expressed be mistaken then the meaning of that paragraph of the Instructions has been rendered uncertain by the hand-written words. It is impossible to know what the parties meant. Thus, that printed paragraph, on the contents of which the Union itself relies for founding jurisdiction in Bombay, becomes void for uncertainty and of no effect. That puts it out of the way. So far as I am aware, there is no principle of law by which the hand-written words can be entirely ignored. ( 12 ) ON the possibility that paragraph 4 is void for uncertainty, territorial jurisdiction must be determined in accordance with the principles which prevail when there is no special term in the contract. So far as I am aware, there is no principle of law by which the hand-written words can be entirely ignored. ( 12 ) ON the possibility that paragraph 4 is void for uncertainty, territorial jurisdiction must be determined in accordance with the principles which prevail when there is no special term in the contract. That leads to the other limb of the argument for the petitioner. Counsel for the petitioner urged that the courts in Delhi would still have jurisdiction because the term of delivery was "f. O. R. Delhi", which signifies that delivery was to be given at Delhi. He cited Gappulal s/o Chandarlal v. H Kanderwal Brothers, Metal Deptt. , AIR 1955 Madhya Bharat 96 (4) and G. Venkatesha Bhat and others v. M/s. Kan-ilapet Motilal and others, AIR 1957 Mad 201 (5) in support of his proposition. Those cases do establish his contention. Recently, Mr. Justice V. D. Misra, in a case entitled Basheshar Nath and Co. v. Union of India Suit No. 250 (A) of 1969 decided on 6th September 1973, has taken similar view. In that case, too, an objection to territorial jurisdiction was raised, and it was held that in view of the term of delivery-"f. O. R. New Delhi"- the place of delivery must be taken to be Delhi and. in consequence, the court at Delhi had jurisdiction. ( 13 ) IT is elementary that a part of the cause of action in respect of a contract for sale of goods arises where the goods are to be delivered. That this principle holds in regard to proceedings occurring in court under the Arbitration Act is manifest from a conjoint reading of section 2 (c) of that Act and section 20 of the Code of Civil Procedure. In my opinion, even if the first part of the petitioner s case on the question of jurisdiction were to fail, the second part would succeed. In either event this court would have jurisdiction. Having reached these conclusions, I think it is unnecessary for me to consider the further alternative submission on behalf of the petitioner that this court has territorial jurisdiction because the headquarters of the Director General of Supplies and Disposals are situate in Delhi. Besides, the submission, though made, was not developed. For these reasons I decide issue No. 1 in favour of the petitioner. Besides, the submission, though made, was not developed. For these reasons I decide issue No. 1 in favour of the petitioner. ( 14 ) ALL the other issues are closely interlinked. It is convenient to consider them together. The primary point is whether the Arbitrator had power to dismiss the petitioner s claim for non-prosecution as he did. It was urged that an arbitrator had no such power and that the only course open to an arbitrator to enforce compliance with his orders was to deliver an ex-parte award. Only one case dealing with the point was discovered by counsel, and that by counsel for the Union. It is reported as Crawford and another v. A. E. A. Prowting Ltd. , 1972 (1) A. E. R. 1119 (6 ). There the question whether an arbitrator could dismiss a claim for non-prosecution arose on a special case stated for the decision of the Court. One conclusion reached after examining the pros and cons was that- "it was not within the arbitrator s jurisdiction for a mere delay on the part of the claimants independently of any failure to comply with an order made by the arbitrator to order that the claimant s claim be dismissed. "this was sufficient to decide that case as dismissal was sought only on the ground of delay- However, the other aspect, whether an arbitrator could dismiss a claim for non-prosecution in the event of a default in compliance with an interlocutory order made by him, was also briefly considered in the ensuing paragraph. The anomalies resulting from either view were noticed, and Mr. Justice Bridge tentatively said obiter that :- "an arbitrator can require that some interlocutory step-the delivery of a pleading, for example-shall be taken by a certain date, intimating that failure on the claimant s part to take the step by that date will result in an ex parte hearing on that date, which in the absence of proper particularisation of the claimant s claim, would necessarily result in an award in favour of the respondent. That may be rather a cumbrous way of achieving the same effect as the courts achieve more directly by the exercise of their power to dismiss for want of prosecution. " ( 15 ) I am persuaded that these observations are right. The present case is a complete illustration of the untenability of a different view. That may be rather a cumbrous way of achieving the same effect as the courts achieve more directly by the exercise of their power to dismiss for want of prosecution. " ( 15 ) I am persuaded that these observations are right. The present case is a complete illustration of the untenability of a different view. Here, because the Arbitrator did not make an award, the petitioner is left wholly without remedy. When he moved the earlier application for having the award filed so that he could have it set aside, he was defeated on the ground that no award existed as none was made by the Arbitrator. If the present petition were also refused, his claim would remain undertermined on merits with no way in sight out of the impasse. Such a result seems contrary to the assumptions underlying the procedures established by the Arbitration Act 1940 which contemplate the bringing up of arbitration proceedings and the award to the court in every case for scrutiny. A dismissal for non-prosecution entails rejection of the claim. The consequencesmay be of equal gravity as those of an award. It is difficult to find any reason or principle for excluding scrutiny by the court when there is a dismissal by the arbitrator for non- prosecution. Yet, the Arbitration Act furnishes no relief in such a case. To my mind that is strong proof that it was never imagined that an arbitration could ever end in anything other than an award- albeit an ex parte award. I do not know and am not presently concerned with the question whether the power to dismiss for non-prosecution could be conferred on an arbitrator by the terms of an arbitration agreement. The agreement here admittedly confers no such power. So, I would conclude, that the only way in which the arbitrator could close the reference was by making an award. ( 16 ) THE course adopted by the Arbitrator was sought to be explained and justified on the ground that time for the making of an award had already expired before the 4th of May 1970. Assuming time had expired, I should have thought the proper course for the Arbitrator was to abstain from doing anything at all or at most merely to suggest to the parties that they move the court for extension of time. Assuming time had expired, I should have thought the proper course for the Arbitrator was to abstain from doing anything at all or at most merely to suggest to the parties that they move the court for extension of time. Or, he might himself have applied to the court for an extension- Under section 28 of the Arbitration Act time for the making of an award can be extended retrospectively. That gave the Arbitrator an option: he could either proceed on the presumption that time would be extended retrospectively and deliver an award or hold his hand till an extension of time was obtained. Neither way could he make an order which he had no jurisdiction to make simply because time for the making of award had expired. I think, the order dismissing the claim for nonprosecution was illegal and without jurisdiction. That answers Issues ( 17 ) NEXT, I have to consider what is the legal effect of what the Arbitrator has done. It seems plain to me that in the legal sense he has misconducted himself and the proceedings. He has brought about a stalemate not envisaged by the law. This he did by making an order which he had no power or jurisdiction to make. It was a serious error of law and procedure which has rendered the reference abortive and caused a miscarriage of justice. On behalf of the Union it was asserted that the petitioner was solely responsible for the delay which had occurred as, being unwilling that proceedings should continue in Bombay, he had made futile applications and motions for review with the intent that proceedings be held in Delhi. I do not know whether, and, if so, how far that is true. Howsoever true it may be, it cannot justify illegal closure of the proceedings by the arbitrator. ( 18 ) WHAT then is the remedy of the petitioner? So far as I can see the only section in the Arbitration Act able to rescue the petitioner is section 5 which is the one he has invoked. Removal of the Arbitrator, even though feasible, would be purposeless as by his own order he has ceased to act and does not need to act further. Apart from leave to revoke the arbitrator s authority no other relief seems appropriate or adequate to the need of petitioner. Removal of the Arbitrator, even though feasible, would be purposeless as by his own order he has ceased to act and does not need to act further. Apart from leave to revoke the arbitrator s authority no other relief seems appropriate or adequate to the need of petitioner. It is settled law that one of the grounds on which leave to revoke may be granted is the misconduct of the arbitrator; see Russell on Arbitration (18th ed.) page 129. Leave is also granted in any case in which injustice is being done and no other remedy is available to prevent it: see ibid. page 130. To my mind this is an exceptional case, as would appear from the paucity of authority on the point, and I have no doubt that the course adopted by the arbitrator has caused substantial injustice. Both on the ground of misconduct and also on the ground that there has been miscarriage of justice for which no other remedy is available, I think, the petitioner is entitled to leave to revoke the authority of the arbitrator. Accordingly, I decide issues Nos. 4, 5 and 6 in favour of the petitioner. ( 19 ) THE petitioner has also prayed for the further relief that an order be made that the arbitration agreement shall cease to have effect with respect to the differences referred. Section 12 (2) (b) of the Arbitration Act authorises the Court, in its discretion, to make such an order when the authority of an arbitrator is revoked by leave of the court. Alternatively under section 12 (2) (a) the court may appoint a person to act as sole arbitrator in place of the person displaced. Act one time during the hearing, counsel for the petitioner was willing that another arbitrator be appointed by the court. However, in clause 21 of D. G. S. andd. Form-68 (which is the arbitration agreement) it is stipulated- "that no person other than the Director General of Supplies and Disposals or the person appointed by him should act as arbitrator and that, if for any reason, that is not possible, the matter is not to be referred to arbitration at all". No case was shown to me which considers the effect of such a term on the statutory powers of the court to appoint an arbitrator. No case was shown to me which considers the effect of such a term on the statutory powers of the court to appoint an arbitrator. Without a full argument I prefer to refrain from expressing any opinion on the point- Nor does it actually arise for decision. But the fact that there is such a term can conceivably give rise to the contention that the power to appoint conferred on the court by the Arbitration Act has been expressly negatived by the parties. If, in the teeth of that term I were to appoint an arbitrator, undoubtedly I would be providing fertile ground on which future litigation could germinate. Realising these dangers, counsel for the petitioner abandoned his suggestion, and finally prayed only that the arbitration agreement be superseded. ( 20 ) I was referred to Juggilal Kamlapat and others v. General Fibre Dealers and another, AIR 1962 S. C. 1123 (7) for the principles relevant to deciding whether an order superseding the arbitration agreement should be made or not. Strictly that case does not apply as there the court was concerned with the situation resulting from the setting aside of an award and the meaning and effect of section 19 of the Arbitration Act; but, there is a useful passage occurring in paragraph 8 of the judgment which reads : "if the Court finds that the arbitration agreement is of the kind which exhausts itself after the first reference is made or if it finds on account of the reasons which have impelled it to set aside the award that there should be no further reference of the dispute to arbitration, the Court has the power to supersede the reference and thereupon order that the arbitration agreementshall cease to have effect with respect to the difference referred. "by analogy that passage equally affords guidance as to the circumstances in which an order ought to be made under section 12 (2) (b), remembering, of course, that there is no award to be set aside. On the basis of that authority the very reasons which impel leave to revoke may be taken into account for deciding whether the arbitration agreement should be superseded or not. On the basis of that authority the very reasons which impel leave to revoke may be taken into account for deciding whether the arbitration agreement should be superseded or not. Considering that there has been a miscarriage of justice, that the petitioner has been left without remedy, that this reference has remained undetermined on merits for over 6 years and that a new reference to another arbitrator appointed by the court would be fraught with technical difficulties and doubts. I think, that it is in the wider interest of both the parties that the arbitration agreement be superseded. ( 21 ) FOR these reasons I grant the petitioner leave to revoke the authority of the appointed arbitrator and make an order that the arbitration agreement shall cease to have effect with respect to the differences referred. As the Union cannot be blamed for the order made by the arbitrator, which has led to these proceedings, I make no order as to costs.