FATEH CHAND MURLIDHAR Vs. JUGGILAL KAMLAPAT

JUDGEMENT

(1.) THIS is an appeal from an order of S.R. Das Gupta, J., dated 29-6-1953, by which the learned Judge set aside an award in favour of the appellants on the ground that in making it without any evidence in its support, the arbitrators had misconducted the proceedings.

(2.) THE facts are as follows. On 3-11-1951, the appellants, Messrs. Fatehchand Murlidhar, agreed to sell and the respondents, Messrs. Juggilal Kamlapat, agreed to buy, 15,000 pieces of Wool Packs at the fate of Rs. 11/12/- per piece. THE goods were to be delivered in three equal instalments of 5,000 pieces each on 25-11-1951, 15-12-1951, and 7-1-1952, respectively. Delivery of the first two instalments was duly given and no question arises with regard to them. With regard to the third instalment due to be delivered on the 7-1-1952, shipping instructions were given on 20-12-1951, for placing the goods alongside a vessel, called "Pantakota". Admittedly, the goods were not delivered and ordinarily there would be a breach of the contract on the part of the appellants. On 11-1-1952, however, the respondents forwarded to the appellants further shipping instructions which they had received from their own buyers and those instructions were for placing the goods alongside another vessel, named S. S. "Purnea . According to the appellants, the letter from the respondents buyers, Messrs. Jute and Gunny Brokers Ltd., which had been endorsed in their favour, was received by them on the 12-1-1952, and the goods were, in fact placed alongside the vessel on the the 13th of January following. THE goods were, however, not lifted. In those circumstances, the appellants began to write to the respondents to the effect that they had made a valid tender of the goods, but the respondents had failed and neglected to take delivery and that accordingly they had become responsible to pay them the full price of the goods at the contract rate, or if they were compelled to sell the goods, to pay the difference. THE respondents, on the other hand, it appears treated the appellants to have been in default and on 21-1-1952, they sent them a bill, being Bill No. 2008/908, for a sum of Rs. 7,500/- which they claimed to be entitled to recover as damages on account of the non-delivery of the goods. Earlier on 18-1-1952, the appellants had sent to the respondents their own bill for Rs. 58,750/- which was the price of 5,000 pieces of Wool Packs at the rate of Rs. 11/12/- per pack. Sundry correspondence followed and it appears that the respondents demanded from the appellants proof of their having placed the goods alongside the "Purnea" on 13-1-1952, Such proof was furnished, but no payment was yet made by the respondents. THEir contention was that the goods had been placed alongside the ship after it had closed loading. THEreafter, the appellants informed the respondents that if they did not yet take delivery of the goods and pay the price, they would be compelled to sell them on account of the respondents and at their risk. THEre having been still no response from the respondents, except that they went on repeating their own claim for Rs. 7,500/-, the appellants actually sold the goods on 1-3-1952, at the rate of Rs. 8/2/-per piece. THEreafter, they sent the respondents a bill for Rs. 18,328/2/- which was made up of Rs. 18,125/- being the difference between the contract price and the auction price of the 5000 pieces of Wool Packs and a sum of Rs. 203/2/- which was said to have been charged by the auction-broker as his brokerage. THE bill was not paid.

(3.) THEREAFTER, on 18-4-1953, the respondents made an application to this Court for setting aside the award. Of the various grounds on which the award was assailed, only two are material for the purposes of the present appeal. One was that the arbitrators had been guilty of misconduct, inasmuch as they had completely ignored the settlement arrived at between the parties and disbelieved it in the absence of any evidence to the contrary. The "other was that the quantum of damages awarded by the arbitrators was in violation of the law prevalent in India. S. R. Das Gupta, J., who heard the application accepted the first contention of the respondents, but he overruled the second. As the award could -not stand if the first contention of the respondents succeeded, the learned Judge necessarily set aside the award. It is against that order that the present appeal was preferred.