CHANDMULL GONESHMULL Vs. NIPPON MUNKWA KABUSHIKI KAISHA

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Greaves, in which he has held, on an application by the respondents, that the award made against them by the Bengal Chamber of Commerce Arbitration Tribunal on the 21st July 1919 at the instance of the appellant must be set aside or taken off the file

(2.) The contract between the parties was made, on the 1st August 1918 for the, sale of 28 bales of Japanese sheeting at Rs. 19 12 0 per piece, Shipment November--February 1919. The contract contained an arbitration clause in these terms: "Any dispute as to damage, difference, inferiority, short quantity or measure or defect or amount of allowance, to be referred, at sellers option, to the Bengal Chamber of Commerce or two Europeans or Japanese merchants or European or Japanese assistants in Mercantile Firms, one to be named by each party; if either party shall fail to nominate an arbitrator within three days after being required to do so, the other party shall be at liberty to appoint both arbitrators or to refer to the Bengal Chamber of Commerce at his discretion" The appellant, who is the buyer, had the matter referred to arbitration. His complaint was formulated in these terms: "goods not proved as correct goods in terms of the contract, basis and shipment samples not produced, goods of each shipment are numbered serially and not in rotation;" and thereupon an award was made in his favour in these terms: "We have carefully examined all evidence put before us and award concealment of contract." Mr. Justice Greaves has held that the reference to arbitration was incompetent, as the events contemplated by the arbitration clause had not arisen Reliance, was plated before him on the term "difference," which he interpreted to mean difference in quality, and not difference so far as shipment or other matters are concerned. It has been argued before us that this is an unduly narrow construction of the arbitration clause and that the terms "difference" and "defect" need not be restricted to "difference" or "defect" in quantity or quality only, We are disposed to accede to this contention, but, even then, the appellant is not entitled to succeed, unless he proves that there was a dispute as to difference or a dispute as to defect. Now, a dispute implies an assertion of a right by one party and a repudiation thereof by another. In the case before us, the parties never reached that stage. The appellant wanted a variety of information from the respondents to enable him to judge whether the goods supplied were or were not according, to the contract, Amongst other things, he demanded the production of the basis and shipment samples. The respondents declined to comply with the request. But there was at no stage an assertion by the appellant that the goods had not been supplied according to the contract and consequently there was not, and could not be, a repudiation by the respondents of any such possible assertion, The inference follows that there was no dispute" which could be and had been validly referred to arbitration. This, indeed, is manifest from the terms of the complaint preferred to the tribunal by the appellant and the award thereupon. The arbitration proceedings were consequently without jurisdiction and the award has been rightly set aside.

(3.) The appeal is accordingly dismissed with costs. Ernest Fletcher, J.