AGARPARA CO LIMITED Vs. SUMATICHAND KOCHAR

JUDGEMENT

(1.) On December 14, 1954, the Appellant, the Agarpara Co. Ltd., entered into a contract with the Respondent, Sumatichand Kochar, for the purchase of a certain quantity of jute which was to be delivered during the month of December, 1954 and/or within January 15, 1955. The contract contained an arbitration clause in the usual form prescribed by the Indian Jute Mills Association. In pursuance of the contract, a part of the goods was delivered and the delivery was accepted by the Appellant. Not only did it accept delivery of the goods, but it also paid out the price and the price was accepted by the Respondent. Thereafter, the Appellant began to complain that the quality and the condition of the goods were not as stipulated and apparently on the basis that it was entitled to some relief on that account, it referred its claim to the arbitration of the Bengal Chamber of Commerce and Industry. The arbitration resulted in an award in favour of the Appellant. When the award was filed in Court, the Respondent, who had lost; before the arbitrators, delivered against it a many-sided attack in the form of a very comprehensive application. It said that the contract itself was bad, being in contravention of the Forward Contracts (Regulation) Act, 1952, read with a notification issued thereunder and that consequently the arbitration agreement, being contained in that contract, was also bad. It proceeded to say that the award was also bad, because there could not be a valid award on a void agreement. Certain allegations relating to the manner in which the merits of the case had been adjudged were also made. The application ended up with five prayers, of which three are material. It was prayed, in the first instance, that the validity of the arbitration agreement be determined and the same be adjudged null and void, secondly, that the award be declared null and void and. thirdly, that the award be set aside.

(2.) When the application came up for hearing, the Appellant did not appear. On behalf of the Respondent, only one point was actually urged and it was that the contract had been entered into in violation of the provisions of the Forward Contracts (Regulation) Act. The learned Counsel appearing for the Respondent stated to the Court that he had other points to urge in support of his application, but it would not be necessary to urge them, if he succeeded on the principal point he had taken. He would, however, ask for leave to reserve his other points for the purpose of arguing them, if necessary before the Court of Appeal, in case the matter went up to that Court. The learned Judge accepted the contention actually pressed before him and held the contract, the arbitration agreement and the award to be all void. He also made an order setting aside the award. Necessarily, he had no occasion to pronounce on the other grounds taken by the Respondent in his application, but he gave leave to the Respondent to reserve them for the purpose of his argument before the Appeal Court, if necessary.

(3.) I may say at once that the right of reservation claimed on behalf of the Respondent and the leave to reserve actually granted by the learned Judge are not very comprehensible to me. How a party could reserve his right to urge before the Appeal Court points he was not urging before the trial Court, some of which at least involved questions of fact, is not altogether clear.