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Issues: Whether the written application and the court's order amounted to a valid reference to arbitration under Section 21 of the Arbitration Act, 1940, and whether the chartered accountant's report was an arbitral award or only a commissioner's report.
Analysis: A reference under Section 21 requires a clear agreement among all interested parties to refer the dispute, or part of it, to arbitration in writing before the court. The application moved by the plaintiff sought appointment of a chartered accountant to examine the accounts and submit a report to assist the court. The defendant had not joined in a joint request for arbitration. The order appointing the chartered accountant also reflected a limited role of auditing and reporting, while the court retained control of the suit. The dispute entrusted to the chartered accountant was confined to examination of accounts, which is consistent with a commissioner or expert acting in aid of the court and not with an arbitral tribunal deciding the rights of parties. A commissioner's function is ministerial and non-adjudicatory, whereas an arbitrator decides disputes bindingly on the basis of consensus to arbitrate.
Conclusion: The reference was not a valid arbitration under Section 21 of the Arbitration Act, 1940, and the chartered accountant's report was not an award but a commissioner's report under Order XXVI Rule 11 of the Code of Civil Procedure, 1908. The defendant's objections must be considered accordingly, and the suit will proceed on merits.
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