NATIONAL CO LTD Vs. BENGAL BOATING CO

JUDGEMENT

(1.) THIS is an appeal from the judgment of R. M. Datta, J. , dated 17 april 1967 by which the suit was stayed under section 34 of the Arbitration Act.

(2.) THE plaintiff instituted the suit for specific delivery of 438 bales or in the alternative a decree for Rs. 3,29,681 or in the further alternative an enquiry into damages and/or the amount payable by the defendant to the plaintiff and a decree for the sum to be found due to the plaintiff upon such enquiry. The plaintiff alleged in the plaint that on or about 2 November 1964, it was agreed by and between the plaintiff and the defendant that the defendant would carry the products of the plaintiff from the plaintiff's mills to different places within the port limits of Calcutta on the terms and conditions alleged in paragraph 4 of the plaint. The further allegations are that the plaintiff from time to time delivered to the defendant various products of the plaintiff's mills for carriage and for placement thereof alongside diverse vessels in terms of the said agreement as per instructions of the plaintiff. It is also alleged that between 28 December 1966 and 18 January 1967 a total quantity of 3463 bales of gunny were duty handed over to and/or taken delivery of by the defendant for carriage and/or transportation by the boats and/or barges in terms of the agreement. Out of the said 3463 bales it is alleged that 347 bales according to final instructions duly given by the plaintiff were to be placed alongside various vessels. In paragraph 8 of the plaint it is alleged that inspite of instructions and demands of the plaintiff, the defendant failed and neglected to place the goods or any portion thereof alongside the respective vessels or any of them within the due date or at all. The further allegations in the plaint are that out of 3463 bales another lot of 250 bales were handed over to the defendant and out of the said 250 bales, 91 bales could not be shipped for diverse reasons and the plaintiff alleges that the said 91 bales are still lying in the custody of the defendant. In paragraph 10 of the plaint it is alleged that the plaintiff is the owner and/or is entitled to delivery of the said 347 and 91 aggregating 438 bales. In paragraph 10 it is also alleged that the defendant has wrongfully detained and is still detaining 438 bales in spite of instructions and demands of the plaintiff to return the same to the plaintiff and has thereby caused and is still causing damages to the plaintiff. The other allegations in the plaint are that the defendant is holding the said 438 bales of gunny as agent and or trustee of the plaintiff and the plaintiff claims specific delivery of the said 438 bales. The alternative claims are for the sum of Rs. 3,29,681/-being the value of the said 438 bales. In paragraph 15 of the plaint the plaintiff has alleged that the plaintiff has other causes of action against the defendant arising out of non-delivery of the goods in terms of the agreement and or breach of the agreement committed by the defendant and the plaintiff prayed for leave under Order 2, rule 2 of the Code of Civil Procedure.

(3.) IT is common case that there was a written agreement between the plaintiff and the defendant. The agreement will appear at page 36 following of the paper book, and is contained in the letter dated 2 November 1964 written by Bengal Boating Company to national Company Limited. The letter is entitled "boat for carriage of your mills' products from your mill to docks, jetties, moorings within the Port of Calcutta. " The letter starts as follows :