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It cannot be disputed that the use of the expression 'may' is not decisive. Having regard to the context, the expression 'may' used in a statute has varying significance. In some contexts it is purely permissive, in others, it may confer a power and make it obligatory upon the person invested with the, power to exercise it as laid down. A company under the Indian Companies Act is entitled to enter into contracts for all such purposes as are by its constitution within its competence. It is invested with a legal personality, and a commercial company may subject to restrictions specifically imposed upon it by its memorandum or Articles, always enter into contracts for the purpose of its business subject in the matter of form to s. 46 of the Companies Act. An arbitration agreement being a contract to submit present or future differences between the parties not to the ordinary courts but before a tribunal chosen by the parties, if the company has the power to enter into a contract,. that power would include power to submit a dispute to arbitration out of court. By s. 28 of the Indian Contract Act agreements in restraint of legal proceedings are declared void, subject however to the rule that a contract by which two or more persons agree that any dispute which has arisen or which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, is not illegal. Section 389 of the Companies Act, 1956 therefore, does not confer any new right upon Companies to agree to refer disputes which have arisen or which may arise to arbitration: the section recognises the rights of a company to refer present disputes to arbitration, and seeks to regulate the right by placing a restriction upon the exercise of that right. It is pertinent to remember that the Arbitration Act, 1940 is in form a code relating to the law of arbitration and applies to all arbitrations: it applies to all arbitrations to which persons natural and legal are parties. The power of the Company to enter into an arbitration agreement is therefore not conferred for the first time by the Companies Act; it is merely regulated by s. 389 of the Companies Act. In other .words, a company within the meaning of the Indian Companies Act, 1956 has the power to refer present or future disputes to arbitration, but such reference has because of the statutory provision to be in accordance with the Arbitration Act, 1940. Sub-section (3) of s. 389 makes the provisions of the Arbitration Act,applicable to all arbitrations to which a company is a party, provided they are in pursuance of the Companies Act. There is no warrant for holding that sub-s.(3) is independent of sub-s. (1). Subsection (1) affirms the power of a company to refer differences between it and another company or person, and also regulates it. Sub-section (3) makes the provisions of the Arbitration Act applicable to all arbitrations to which a company is a party: it is not restricted to mere statutory arbitrations to which a company is obliged to submit by virtue of the provisions of the Companies Act. To invest sub-s. (3) with a restricted meaning, is to make it redundant. The only provision of the Companies Act which compels a company to go to arbitration in respect of a dispute is s. 494 (3) (b). By that clause a member of a transferor company in voluntary liquidation expressing dissent against an arrangement relating to the acceptance of shares, policies or other interest or participation in profits in the transferee company in consideration of the business of the former may require the liquidator to purchase his interest at a price to be determined by agreement or by arbitration in the manner provided by s. 494, and sub-s. (6) expressly makes the provisions of the Arbitration Act applicable to such arbitration. It may be observed that the words "other than those restricting the application of that Act" in sub-s. (6) have no meaning. They have been merely copied from s. 208C of the Companies Act of 1913, in which they survived by some inadvertance, even after the repeal of the Arbitration Act of 1899. Our attention has not been invited to any other provisions under the Indian Companies Act under which compulsory arbitration has to be undertaken between a company and another company or person and in regard to which no provision relating to the applicability of the Arbitration Act has expressly been made. The provisions relating, to arbitration in the earlier Companies Act also confirm that view. A retrospect of legislation relating to arbitration in the context of the law relating to Companies would serve also in clearing the ground in appreciating the reasons which led to conflicting decisions in the High Courts. It may not be necessary to enter upon a detailed review of the Regulations and Acts in force prior to the year 1882. It may be sufficient to observe that in the Presidency towns of Calcutta, Madras and Bombay there were diverse Regulations in operation which provided for machinery for amicable settlement of disputes of civil nature by arbitration. For the first time by Act 8 of 1859 in the Code of Civil Procedure a provision was made for reference of disputes to arbitration by parties to the suit applying to the Court in which the suit was pending in which the matter was referred to arbitration. Then came the Indian Contract Act 9 of 1879,, which recognized the validity of contracts requiring parties to submit their disputes either present or future to arbitration. In 1822 the Indian Companies Act 6 of 1882 was enacted which by ss. 96 to 123 made provisions for arbitration out of Court, of disputes in which companies were concerned. A company could refer by writing under its common seal any matter whatsoever in dispute between itself and any other company or person, and the procedure prescribed in those sections applied. This group of sections dealt exhaustively with arbitrations out of court to which a company was a party. Beside enacting the procedure for arbitration it provided that the award of the arbitrator was not liable to be set aside on any ground of irregularity or informality. On the application of any party interested the arbitration agreement could be filed in the High Court having jurisdiction, and an order of reference could be made thereon. Immediately in the wake of the Companies Act, 1882 the Code of Civil Procedure (Act 14 of 1882) was enacted which provided by Ch. XXXVII the general law relating to arbitration.' Sections 506 to 522 dealt with arbitration in a pending suit. If all the parties to a suit desired that any matter in difference between them in the suit be referred to arbitration, they could, at any time before judgment was pronounced, apply to the Court for an order of reference. By s. 523 provision was made enabling the parties to an arbitration agreement to file it in Court and the Court if satisfied as to the existence of the arbitration agreement could make a reference to the arbitrator appointed by the parties or nominated by the Court and the provisions relating to arbitration in the earlier sections in so far as they related to or were consistent with the agreement applied. Section 525 enabled any person interested in the award made in a matter referred to arbitration without the intervention of a Court of Justice to file the same in Court and if no ground for setting aside the award was made out, the Court could order that the same be filed. Chapter XXXVII therefore dealt with arbitration generally--arbitration in pending proceedings, arbitrations pursuant to orders passed by the Court referring a dispute on an agreement filed in Court, and filing of awards made by arbitrators appointed by valid agreements out of Court. The combined effect of the Indian Companies Act ss. 96 to 123, and the Code of Civil Procedure ss.506 to 526 was that where a Company was a party to an arbitration out of Court, the arbitration proceedings had to take place in accordance with the Companies Act and could be enforced in the manner provided thereunder. Filing of an arbitration agreement in Court for reference was also governed by the Companies Act, but arbitration in a pending suit to which a Company was a party was governed by the Code of Civil Procedure.

Clauses 17 to 19 dealt with orders of references on agreements to refer disputes to arbitration and clauses 20 and "1 dealt with the tiling and enforcement of awards. Section 89 was specially enacted in the, Code which provided by the first sub-section:

"(1) Save in so far as is otherwise provided by the Indian Arbitration Act, 1899, or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the Second Schedule."

The Indian Companies Act, 7 of 1913 was repealed by the Companies Act I of 1956 and s. 389 took the place of s. 152 of the former Act with a slight modification. Under the Arbitration Act, 1899 read with the Companies Act, 1913, the power of a company to refer differences to arbitration fell to be determined in certain cases which arose, before the High Courts of Lahore, Calcutta and Madras. In sita Ram Balmukand v. The Punjab National Bank Ltd. Ambala City (1), there was a private arbitration in a dispute between the Punjab National Bank Ltd. and a debtor of the Bank and the arbitrator made his award in favour of the Bank. This award was filed in the Court (1) (1956) I. L. R., 17 Lah. 722 F. B of the Senior Subordinate Judge, Ambala under Sch. I of the Code of Civil Procedure, 1908 and a decree was obtained in accordance with the provisions of that Schedule. Execution was then taken out and property of the debtor was attached. The debtor contended that the award and the decree by the Court were invalid, because arbitration .to which a company was a party had, in view of the provisions of s. 152 of the Indian Companies Act, to take place in accordance with the provisions of the Arbitration Act, 1899 and the award could only be filed in the Court of the District Judge and not in the Court of the Senior Subordinate Judge and therefore the proceedings in execution "were ultra vires". The High Court held that s. 152 of the Indian Companies Act, 1913, enacted an enabling provision and did not make it obligatory upon the parties one of which was a company, to go to arbitration in accordance with the requirements of the Indian Arbitration Act, 1899. The provisions of s. 152 in the view of the Court being permissive, the Company could apply to have an award filed in Court under paragraph 21 (1) of Sch. II to the Code of Civil Procedure and the decree passed by the Senior Subordinate Judge was not a nullity as contended by the debtor. Bhide, J, who delivered the judgment of the Court observed that the general policy of the Legislature as disclosed by s. 152 of the Indian Companies Act, 1913, was not to make compliance in arbitration proceedings with the provisions of the Indian Arbitration Act, 1899, obligatory outside the Presidency-towns and that s. 152 being an enabling provision it merely conferred power on companies to. refer disputes to arbitration under the Indian Arbitration Act, 1899, by an agreement in writing when that course was preferred. This view was not accepted by the Calcutta High Court in Jhirighat Native Tea Company .Ltd. v. Bipul Chandra Gupta (1). In that case the jurisdiction of the District Court to entertain a petition (1) I.L.R.(1940) 1 Cas.358 under paragraph-20 of Sch. II of the C:ode of Civil Procedure for an order filing an award made out of court where one of the parties to the dispute Was a company registered under the Indian Companies Act, 1913, was challenged. It was held by the High Court of Calcutta that by virtue of the provisions of s. 152 sub-ss. (1) and (3) of the Indian Companies Act, 1913, all arbitrations between companies and persons had to take place in accordance with the provisions of ss. 3 to 22 of the Indian Arbitration Act, 1899, and for that purpose, s. 2 of the Indian Arbitration Act restricting its local application was to be treated as non-existent. The Court also opined that in view of s. 89 of the Code of Civil Procedure, 1908, the Second Schedule to the Code had no application to arbitration between a .company and a person or to arbitrations under s. 208C: of the Companies Act, 1913. It was observed that the words "in pursuance of this Act" (i. e. the Companies Act) qualified the phrase "shall apply" and therefore the meaning of s. 159, was that the provisions of the Indian Arbitration Act, 1800, except s. 2 thereof shall apply to all arbitrations between companies and persons by the force and effect of the Companies Act itself.

The Court therefore held that an arbitration agreement whereby an Indian Company had agreed to refer future dispute under a collaboration agreement with an Italian Corporation, was unenforceable by virtue of s. 152 of the Indian Companies Act, and the suit filed by the Indian company for a declaration that the "dredging agreement" had been validly terminated, and for damages for breach of contract, and accounts of profits and tosses could not be ordered to be stayed either under. s. 34 of Arbitration Act or s. 3 of the Arbitration (Protocol and Convention) Act, 1937, or under s. 151 of the Code of Civil Procedure. On a review of the statutory provisions and the authorities we are of the view that s. 152 of the Indian Companies Act, 1913, and s. 389of the Indian Companies Act, I of 1956, were intended to provide that all arbitrations to which a company is a party shall be conducted in accordance with the provisions of the Indian Arbitration Act, X of 1940. For reasons which we have already stated s. 389 (1) of the Companies Act, 1956, regulated the power of Indian Companies to agree to submit differences to arbitration and by sub-s. (3) the provisions of the Arbitration Act, 1940, applied to all arbitrations to which an Indian Company was a party. That however is not decisive of the question which falls to be determined before us. Section 47 of the Arbitration Act, 1940, is as much a part of the Indian Arbitration Act as any other provision and that section makes the provisions of the Arbitration Act applicable to all arbitrations and to all proceedings thereunder but subject to the provisions of s. 46 and save in so far as is otherwise provided by any law for the time being in force. We arc not concerned in the present case with a statutory arbitration. But by the use of the words "save in so far as is otherwise provided by any law for the time being in force", the Legislature has clearly made the provisions of the Arbitration (Protocol and Convention) Act, 1937, applicable to consensual arbitrations under the Arbitration Act of 1940 when the conditions prescribed for the application of that Act are attracted, even if the scheme of arbitration recognised thereby is inconsistent with ss. 3 to 38 of the Arbitration Act, 1940. The Arbitration (Protocol and Convention) Act 6 of 1937 was enacted for giving effect to the protocol on arbitration clauses set forth in the First Schedule and of the conventions on the execution of foreign arbitral awards set forth in the Second Schedule and for enabling the conventions to become operative in India. It is not disputed that the proposed arbitration between Traction and Kamani under the Rules of the International Chamber of Commerce is governed by the Protocol on Arbitration Clauses agreed to at Geneva. on September 24-, 1923, and the Protocol in the First Schedule applies. The Arbitration (Protocol and Convention) Act 6 of 1937, being a law otherwise providing for arbitration the provisions thereof would by virtue of s. 47 be applicable to arbitrations under s. 389 of the Indian Companies Act, 1956, if the conditions regarding their applicability are fulfilled. That Act applies to arbitrations whether parties to .the submission arc individuals or companies. By virtue of s. 389 sub-ss. (1) and (3) of the Indian Companies Act 1 of 1956, (before that section was repealed in 1960) an Indian Company may agree to refer differences between itself and any other company or person by written agreement in accordance with the Arbitration Act, 1940 and the provisions of the Arbitration Act, 1940 apply to all Arbitrations in pursuance of the Companies Act to which a company is a party. Arbitration according to the provisions of the Arbitration (Protocol and Convention)Act 6 of 1937 being recognised by the Arbitration Act an agreement to refer disputes in accordance with the rules of the International Chamber of Commerce is not inconsistent with s. 389 of the Companies Act, 1956. In Societe Italians per Lavori Marittimi's case (1), the attention of the Court was, it appears, not invited to the provisions of s. 47 of the Arbitration Act, 1940, in its relation to the Arbitration (Protocol and Convention) Act 6 of 1937 and the Court refused to stay the action commenced in contravention of the arbitration agreement on the footing that an arbitration agreement which contemplated reference otherwise than in the manner provided by the Arbitration Act, 1940, ss. 1 to 38 was inffective not being permissible under the provisions of s. 152 of the Companies Act 1913 and "therefore impossible and completely prohibited." This view in our judgment, cannot be sustained. In the present case, Kantawala, J. and the High Court proceeded upon the view' (as they were bound to do) that the decision in Societe Italian per Lavori Marittimi's case (1) was sufficient to justify the contention of Kamani that the suit could not be stayed, the arbitration agreement being inffective and invalid. For reasons already set out by us, that assumption cannot be supported Whether having regard to the terms of s. 3 of the Arbitration (Protocol and Convention) Act 6 of 1937 stay may be granted of the suit commenced by Kamani is a question on which no decision has been recorded by the Trial Judge nor by the High Court, and we will not be justified in this appeal in entering upon questions of fact for the first time without having the (1) Appeal No. 63 of 1959 decided on September 22, 1960.