RAM KISSEN JOYDOYAL Vs. POORAN MULL

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for a perpetual injunction to restrain arbitration proceedings before the Bengal Chamber of Commerce Tribunal of Arbitration. The plaintiffs instituted this suit for declaration that they did not enter into the contract No. 128 with the defendant dated the 13th December 1916, that the contract is not binding on them and that they are accordingly entitled to an injunction to restrain the defendants from proceedings to arbitration pursuant to the usual arbitration clause contained in the contract. The defendants traversed all the material allegations in their written statement. The only issue raised in the Court below was whether the plaintiffs were liable on the contract. Mr. Justice Greaves, on the evidence adduced, came to the conclusion that the plaintiffs did not enter into the contract and that the same was not binding on them; he accordingly granted an injunction restraining the defendant from proceeding with the arbitration before the Bengal Chamber of Commerce.

(2.) On the present appeal, it has been argued that the plaintiffs, on the face of the plaint, were not entitled to the relief claimed by them. This point was not taken in the Court below and does not appear to have been raised in the memorandum of appeal presented to this Court. On behalf of the respondents, it has been argued that the point should not be allowed to be raised for the first time here. We cannot accede to this contention, because although the question cannot strictly be deemed as one of jurisdiction in the sense of competency of the Court to entertain the suit, still the objection goes to the root of the matter and raises the question whether the Court was competent to grant the relief claimed by the plaintiffs. If the Court was not competent to grant the injunction claimed by the plaintiffs, it is manifest that the decree for injunction should not be allowed to stand, merely because the point was overlooked and neither raised in the Court below nor mentioned in the memorandum of appeal presented to this Court. That the Court of Appeal cannot avoid the decision of a pure question of law of this character, which does not depend on the determination of a question of fact, and, which, besides, disputes the authority of the Court to make an order of a certain description, is clear from the decisions of the Judicial Committee in Meenakshinaidoo v, Subramaniya Sastri 14 I.A. 160 : 11 M. 26 : 5 Sar. P.C.J. 54 : 11 Ind. Jur. 393 : 4 Ind. Dec. (N.S.) 18 and Connecticut Fire Insurance v. Kavanagh (1892) A.C. 473 at p. 480 : 61 L.J.P.C. 50 : 67 L.T. 508 : 57 J.P. 21.

(3.) In the plaint the plaintiffs asked for the following reliefs: "For a declaration that the plaintiffs did not enter into the said alleged contract and the same is not binding on them, for a declaration that there was no submission to arbitration by the plaintiffs and for an injunction restraining the defendant firm, its servants and agents from proceeding with the said arbitration before the Bengal Chamber of Commerce Tribunal of Arbitration." It is plain that this is not a suit for a mere declaration of title without consequential relief, within the meaning of Section 42 of the Specific Relief Act. Consequently, no question arises as to the scope of that section, as explained in the judgment of Sir Lawrance Jenkins, C.J., in the case of Deokali Koer v. Kedar Nath 15 Ind. cas. 427 : 39 C. 704 : 16 C.W.N. 838. The suit is in essence one for a perpetual injunction and the prayers for declaration are merely anciliary thereto. Thus the fundamental question for determination is, whether the Court was competent to grant the injunction sought for by the plaintiffs.