RAMDAYAL RAMESWARILAL Vs. VISSAMSETTI CHANDRA NARASIMHAM

JUDGEMENT

(1.) THE petnr. in this petn. is the deft. in O. S. No. 702 of 1948 on the file of the Dist. Munslf's Ct. at Vijayawada. THE pltf. in that suit claimed damages against the deft. for non-performance of the contracts entered into between the parties. THE deft. took out an appln. under Section 34, Arbitration Act to have the suit stayed on the ground that the terms of the contract contemplated a settlement of disputes between the parties by reference to arbitration. THE learned Dist. Munsif did not agree with the contention of the deft., & even so, the learned Subordinate Judge upheld the decision of the learned Dist. Munsif. This petn. is therefore preferred against the order of the learned Subordinate Judge.

(2.) IT is useful in this connection to refer to the actual terms of the contracts entered into between the parties (Exs. A. 1 & A. 2). After setting out the name of the seller, the name of the buyer, the quality, quantity, rate, place of delivery, time of delivery, terms of payment, etc., the written contract which is signed by both the parties sets out in the clause marked N. B. that the terms & conditions should be as per Nellimarla or Chittavalsah Jute Mill Co's contract. Below this, further particulars are set out which are to this effect, viz., "Settlement against contract No. 72 dated 21-3-1947 at the rate of Rs. 92-0-6 per hundred bags only". These contracts are for the supply & purchase of empty gunny bags manufactured by H. D. Nellimarla or Chitavalsah Jute Mills. This is specifically mentioned in the contracts against column 3. In view of the contents of these contracts wherein specific reference is made to the supply of goods manufactured by a particular mill & wherein there is a stipulation that the terms and conditions should be as per the contract of the said Nellimarla or Chittavalsah Jute Mill Co., it cannot be contended for a moment that the pltf. was not aware of the terms & conditions under which the goods were supplied by the Nellimarla or Chittavalsah Jute mills. Besides, it is in evidence that the pltf. has been dealing with such goods manufactured by the said mills, though he has been purchasing the same, as per his own evidence through brokers. IT cannot be said that he was a stranger to transactions of the type in question. Both the parties must be stated to be in the full know of the terms & conditions under which supplies & purchases of the products manufactured by either Nellimarla or Chittavalsah Jute Co. are made by those who have dealings in gunny bags manufactured by the said mills. When such is the background, & when there is a specific stipulation, which invites the particular attention of the signatories to the contract to the fact that the terms & conditions should be as per Nellimarla or Chittavalsah Jute mill Co's contract, surely there can be no substance in the contention of the pltf. that he was not aware of what exactly were the terms & conditions under which the products manufactured by the said two mills were being supplied or sold in the market. Ignorance on the part of the pltf., of the terms & conditions under which such sales are made by the said manufacturing companies appears to be one of the reasons why the Ramdayal Rameswarilal vs. Vissamsetti Chandra Narasimham (09.01.1951 - MADHC) Page 3 of 4 learned Dist. Munsif refused to exercise his discretion in staying the suit as required by the deft. The other reason which has been relied upon by the learned Dist. Munsif in refusing to stay the suit as prayed for by the deft. appears to be that the pltf. gave notice before filing the suit, & that the deft. did not choose to send any reply to the threat of the pltf. held against the deft. that he would file a suit if damages were not paid. These two reasons referred to above can hardly be said to be sufficient for the Dist. Munsif to refuse to exercise the jurisdiction which is vested in him under Section 34, Arbitration Act. In my opinion, the learned Dist. Munsif was not correct in having taken the attitude which he did on these two very flimsy grounds.

(3.) MR. Parthasarathi, learned counsel for the resp. invited my attention to the observations of in 'Kedarnath v. Sumpatram', 47 Cal 1020 : (AIR (7) 1920 Cal 795), & also to the observations made by the learned author Sircar in his commentaries on the Arbitration Act at pp. 292, 293, & 301, wherein it has been stated whenever there is an ambiguity with regard to the actual terms of the contract the jurisdiction of the Cts. ought not to be ousted. On the facts of the present case, 1 do not think that there is any ambiguity at all with regard to the terms of the contract, so as to justify my adopting the ruling in the authorities cited by the learned counsel for the resp. The circumstances of the present case as set forth above justify the construction that the terms & conditions of the Nellimarla or Chitavalsah Jute Mill Co. did become incorporated into the terms of the suit contracts.