C.A. GALIAKOTWALA AND CO. (P.) LTD., BY ITS MANAGING DIRECTOR Vs. KANDASAMY SPINNING MILLS BY PARTNER I.K.K. MUNIRAJAH

JUDGEMENT

(1.) This appeal is by the unsuccessful defendant in I.A. No. 874 of 1974 in O.S. No. 426 of 1974, on the file of the Court of the Subordinate Judge of Erode. The respondent -plaintiff filed the suit for recovery of a sum of Rs. 1,63,794 as damages, on the foot that the appellant -defendant had committed breach of contract, dated 15th January, 1974, to supply 500 full -pressed bales of new crop 797 Dholka or Bavla FAQ, cotton of 1973 -1974 season on the terms and conditions contained in the confirmation slip dated 15th January, 1974. The contract originated in correspondence and the respondent's case is that it was concluded by a telegram. This is seen from Exhibits B -1 to B -3. The respondent's specific case is that he sent the sale confirmation letter to the appellant and that that was the process by which the contract was concluded. On the strength of such a concluded contract, the respondent -plaintiff was demanding the performance of the same in accordance with its tenor, which the appellant refused. Obviously the price of cotton which was the subject -matter of the contract, by then rose. The respondent had therefore to file the suit for the recovery of damages for breach of contract. He relied upon the correspondence ending with Exhibit B -3. The respondent, prior to the institution of the action, issued a notice Exhibit B -16, calling upon the appellant to perform the contract or to suffer damages. Exhibit B -18 is the reply by the appellant in which he categorically denied that there was any concluded contract as between himself and the respondent, as according to him, the respondent had not returned the sale confirmation note duly signed by him in confirmation of the contract which originated in correspondence. In fact, the specific case of the appellant was that the contract had been cancelled by his letter, dated 1st February, 1974. It was in those circumstances the respondent had to file the suit for recovery of damages on the strength of the contract and the breach thereof. No sooner did the respondent file the suit, than the appellant took out under Sec. 34 of the Arbitration Act an application for the stay of all proceedings in the suit and for directing the respondent to refer the alleged dispute in the suit to arbitration, in accordance with the rules and regulations of the East India Cotton Association Ltd., Bombay. The provocation for the appellant to file such an application was that under Exhibit B -3, which was the sale confirmation, reference is made to the East India Cotton Association Ltd., in the following terms:

(2.) Taking advantage of the reliance placed by the respondent on Exhibit B -3, the appellant, notwithstanding his specific stand in Exhibit B18, raised a plea that the suit was not maintainable and that the dispute should be referred to arbitration in accordance with the contents of Exhibit B -3. This was negatived by the Court below on more than one ground. Firstly the learned Subordinate Judge thought that the respondent -plaintiff was not a member of the East India Cotton Association Ltd., and therefore he could not be compelled to submit himself to arbitration in accordance with the rules and regulations of that Association. Secondly he was of the view that, in case there was a dispute about the existence of an arbitration agreement, then in accordance with the by -laws of the Association there should be a written agreement between the contesting parties agreeing to refer the disputed matters to arbitration, and that in the absence of such a written agreement in the instant case the question of referring the subject -matter of dispute to arbitration did not arise. The third ground on which the learned Subordinate Judge refused to accept the application for reference to arbitration was that one partner could not bind the firm by his action in unilaterally consenting to refer the matter to arbitration. It is as against this ultimate decision of the Court below, the present appeal has been filed.

(3.) It is enough, for the purpose of this appeal, if we just highlight our attention on the specific stand taken by the appellant prior to coming to Court with the application under Sec. 34 of the Arbitration Act. People involved in commerce are expected, like others, to know the dimensions as well as the limitations of the rights and responsibilities which spring from ordinary and normal trading relations. When a trader is confronted with a specific basic allegation that there is a contract as between himself and another, who claims the existence of such a contract and if that other person demands damages from him for breach of contract and for nonperformance of the obligations arising thereunder, then the first reaction of that person should be either to accept the existence of the contract, or deny it; and, if he accepts the existence of the contract, he should plead the circumstances under which he should be exonerated from performing his part of the contract. If, on the other hand, in a situation like the one illustrated above, the other party demands from the person concerned performance of the contract under threat or pain of recovery of damages for non -performance of the same, and the other person denies the existence of the contract and goes to the extent of saying that, even if there was any such contract, it had been cancelled, then it would not be open to that person once again to resurrect the situation and plead that there was such a contract and that contract contains a clause requiring disputes to be referred to arbitration and that therefore that clause to refer disputes to arbitration should prevail and no civil Court shall entertain such disputes which are to be adjudicated upon by arbitration as provided in the contract. In the instant case Exhibit B -18 is a complete answer to the application for reference of the disputes to arbitration. In Exhibit B -18 the appellant took up the specific stand that there was no concluded contract at all as between himself and the respondent and that, in any event, the so -called contract had been cancelled by his letter, dated 1st February, 1974. This was at a time when the respondent was threatening to come to Court with a suit for damages on the foot of the breach of the contract. After the filing of the threatened suit it was not open to the appellant to give a volte -face to his specific stand that there was no concluded contract as between himself and the respondent, and plead that there was such a contract and on the top Of it ask for a stay of the suit on the ground that there existed, even at the time when he sought for stay of the trial of the suit under Sec. 34 of the Arbitration Act, an arbitration agreement which was in force in the eye of law. A person cannot be permitted to approbate and reprobate. Once he has denied the contract, he cannot soon thereafter, when he is placed in an inconvenient position, give the go -by to his earlier stand and contend that there is a contract and that that contract includes the arbitration agreement as well. The question is whether in the above circumstances the appellant can seek for relief under Sec. 34 of the Arbitration Act.