MORGAN WALKER AND CO Vs. KHARDAH CO LTD

JUDGEMENT

(1.) THIS is an appeal from an order of Bachawat, J., dated 27-6-1955, whereby the learned Judge revoked the authority of the Bengal Chamber of Commerce and Industry to arbitrate; in a dispute between the appellants and the respondents which had been referred to the Chamber at the instance of the appellants. He held that the reference then pending before the Chamber was a second reference of the same dispute which could not legally be entertained but, since the Chamber was nevertheless entertaining it and thus acting illegally, the only proper course to take was to revoke the authority of the Chamber. For his reasons, he referred to those given in his order in the case of Hulaschand Rupchand v. Baranagore Jute Factory Co., Ltd. (96 Cal LJ 66).

(2.) THE facts are few and simple. On 13-8-195l, the appellants entered into a contract with the respondents for sale to them of 2000 maunds of Ready jute "packed in bales, each weighing about 3 1/2 &/or 4 maunds". In pursuance of that contract, the appellants delivered some jute in bales of the stipulated size which the respondents duly accepted and paid for, but they delivered some more jute in bales of 5 maunds which the respondents refused to accept. THE respondent's contention was that they were not bound under the contract to accept jute delivered in bales of 5 maunds, whereas the appellants' contention was that they were, inasmuch as the contract had subsequently been amended. A dispute having thus arisen between the parties, the appellants referred it to the arbitration of the Bengal Chamber of Commerce and Industry in accordance with the arbitration agreement contained in the contract and on 26-6-1952, the Chamber made an award in their favour. THE respondents then made an application to this Court for setting aside the award. By an order dated 12-1-1953, S.R. Das Gupta J. set it aside and his order was affirmed on appeal on 9-6-1953. THE trial Court and the appellate court both held that the arbitrators had proceeded on a patent misconception of the dispute before them and assumed that they were to decide the rights of the parties under an amended contract, whereas whether the contract had been amended or not was one of the matters they were required to decide.

(3.) IT may be pointed out at once that the respondents' prayer for a revocation of the authority of the Chamber was clearly misconceived and the learned Judge's order, giving effect to that prayer, was also, strictly speaking, not correct. The Arbitration Act gives no power to the Court to revoke the authority of an arbitrator, but only gives it power to give leave to a party to revoke. The other power it gives to the Court is to remove an arbitrator. Since, however, the learned Judge clearly intended that the Chamber should no longer act as an arbitrator in the dispute, we may treat his order as an order removing the arbitrator. The only question in the appeal, therefore, is whether the ground given by the learned Judge for making the order is correct.