JOKIRAM KAYA Vs. GHANESHAMDAS KEDARNATH

JUDGEMENT

(1.) We are invited in this appeal to consider the propriety of an order of dismissal made by Mr. Justice Greaves on an application for stay of a suit under Section 19 of the Indian Arbitration Act. The material fact which led up So the order are not in dispute and may be briefly narrated for our present purpose.

(2.) On the 14th August 1918 the appellant sold to the respondent 150000 yards of delivered in three equal in January, February and March, was not carried out: the Seller contends that the breach was due to default on the part of the buyer; on the other hand, that the default Was on the part of the seller. The contract contained an arbitration clause in the following terms: Any dispute whatsoever arising on or out of this contract shall be referred to arbitration under the Rules of the Bengal Chamber of commerce, application for the time being, for decision, Shall be accept as final binding on both parties to this is The award may at the instance of either party and witheut any notice to the other of them, be made a rule of the High Court of Judicature at Fort William.

(3.) On the 24th April 1919 the seller referred the dispute to the arbitration of the Bengal Chair of commerce terms of the just to our, and his letter gave a detailed account of what, according to his version, had taken place between the parties, The statement of the Heifer was forwarded by the Registrar of the Chamber to the buyer for his remarks. The buyer sent a reply in due course; this was transmitted by the Registrar to the seller, who submitted his final reply on the 17th July 1919. On the 14th August 1919 the instituted a suit on the Original Side of this Court for recovery of damages from She seller, on the allegation that the seller was in default. The seller received intimation of this suit on the 24th August 1919, but the writ of summons was not actually served on him till the 26th September 1919. On the 18th October 1919, the Arbitration Tribunal of the Chamber made an award in favour of the seller. On the 17th November 1919 the buyer made an application to this Court to Set aside the sward, on the ground that, by reason of the institution of the suit, the arbitrator were junction officio and that, consequently, the award wag void for want of jurisdiction. This application was granted, and the award was sot aside by Mr. Justice Ghose on they 28th November 1919. On the 11th December 1919 the seller applied for stay of the suit under Section 19 of the Indian Arbitration Act. On the 11th December 1919 Mr. Justice Greaves dismissed the application. We have now to examine whether the order of dismissal was, in all the concomitances of the case, appropriately made.