KEDARNATH Vs. INDIA UNITED MILLS LTD

JUDGEMENT

(1.) THIS is a petition under the Arbitration Act and the relief sought is that the award made by the Umpire may be remitted for reconsideration. Alternatively the petitioners have asked for such other order in relation to the award as may appear just to the Court. There is no express prayer asking for the setting aside of the award but learned Counsel for the petitioners has submitted before me that the award is bad for an error of law apparent on the face of it and should, therefore, be set aside. I shall not take a technical view of the matter but will proceed to examine the arguments urged on behalf of the petitioners on the footing that the relief sought is that the award should be set aside.

(2.) BY a contract made on May 13/14, 1953, the respondents who are manufacturers of textiles contracted to sell and deliver to the petitioners 300 bales of piecegoods described in the contract. Delivery of the goods was agreed to be 'June/July 1953', After taking delivery of 64 bales the petitioners took up the position that they were not bound to take delivery of the rest of the goods and that the contract as to the balance stood cancelled. Correspondence ensued, and while it was going on the petitioners from time to time paid for and took delivery of 33 more bales leaving a balance of 203 bales. The parties under the terms of the contract being bound by an arbitral agreement the disputes between them were referred to arbitration of two persons in accordance with the rules of the Mill Owners' Association. In their particulars of dispute filed before the Arbitrators the respondents contended that the petitioners (dealers) had no genuine ground for complaint whatever and submitted : - The party has so far paid for only 97 bales. The balance of 203 bales is still lying with us on their account. We request that the party be asked to take delivery of the goods after paying value plus overdue interest, godown rent and insurance charges. In their particulars of dispute the petitioners raised various contentions and submitted, inter alia, that the claim of the respondents was for specific performance of the contract and should be rejected as they were not entitled to enforce the same in law and equity. They also contended that the respondents were in default and on that footing claimed damages from the respondents for loss of profit.

(3.) THE material part of the award published by the Umpire goes as follows: - Whereas, in pursuance of a contract in writing, No. F. 362 dated 13/14th May 1953, the matters in difference thereunder between the two parties above named have been referred to two Arbitrators appointed in accordance with the Arbitration Rules of the Bombay Mill Owners' Association under reference, dated 12 -1 -1954 and 2 -2 -1954 and subject to the conditions therein set forth; and whereas the Arbitrators in question, namely Mr. T.V. Baddeley and Mr. S.P. Jain, have disagreed in their award; and whereas I, the undersigned, was duly appointed by the said authority to act as Umpire in the dispute in question; Now, I, the said Krishnaraj M.D. Thakersey having carefully considered all the evidence pertaining to the said reference, award as follows: - That in terms of Clause 16 of the contract, the 83 bales not packed in June, were extended for delivery upto the end of July by which time the bales were ready for delivery, and the buyers are not entitled to cancel these bales; That the goods under this contract are equal to the basis sample and are a fair tender; and That the buyers shall pay for, excluding godown rent, overdue interest and insurance charges, and take delivery of 203 bales, i.e. 83 bales not packed in June but which were packed and ready for delivery in July, and also 120 bales packed in July.