GANGADHAR GOURISANKAR Vs. BISSESSARLAL KANHAIYALAL

JUDGEMENT

(1.) The principal question involved in this appeal has already been decided by this Court, but the appeal is nonetheless of importance, because in this case the previous decision of the Court has been sought to be distinguished by the learned Judge. It has to be seen whether the ground upor which he made the distinction is a valid ground.

(2.) The Appellant was the seller under a contract for the sale oi 1,500 mds. of mustard oilcake Papari Expellor Pure Taza at the rate of Rs. 8-5 per maund. The Respondent was the buyer. The contract was entered into on September 8, 1952 and delivery of the goods was to be given in that month and October following. The contract contained an arbitration clause expressed in the following words:

(3.) In November, 1952, the Appellant delivered 482 mds. and 35 srs. of oilcake and although the time for delivery as stipulated for in the contract, had already expired, the Respondent accepted delivery of the goods. It also made a payment of Rs. 3,400 towards the price. On the very next day, however, the Respondent addressed a letter to the Appellant and enclosed therewith a bill Rs. 508-13 which, it said, the Appellant was liable to pay on account of difference of price in respect of the balance of the goods not delivered. The Appellant repudiated the claim and in its turn demanded payment of a sum of Rs. 593-14-6 which was the balance of the price of the goods the Respondent had already received. The Respondent replied by saying that the Appellant could have only Rs. 85-1-6, which would be the balance after deducting the amount of difference claimed by it from the balance of price of the goods delivered. Neither party would concede the claim of the other and in that state of the relations between them, the Appellant filed a suit in the Court of Small Causes for the recovery of the amount it was claiming. On September 14, 1954, a consent decree was passed by the Small Cause Court for the amount claimed together with interest.