GAJANAND SITA RAM Vs. PHUL CHAND FATEH CHAND

JUDGEMENT

(1.) This appeal arises from an order, dated 7 May 1928, passed by the learned District Judge of Cawnpore setting aside two separate awards made by two arbitrators appointed by the parties.

(2.) Messrs. Phul Chand Fateh Chand, the respondents, agreed to purchase and Messrs. Gajanand Sita Ram, the applicants, agreed to sell, on 23 March 1918, 45 bales of mulls. The latter expected to be able to supply the 45 bales which they agreed to sell as Banarsi Das & Co., who are not parties to this case, in their turn, had agreed to supply that commodity to the appellants. Banarsi Das & Co. failed to perform their part of the contract with the appellant, with the result that the latter could not fulfil their undertaking with the respondents. The agreement between the parties to this ease is evidenced by an indent signed by the respondents. It is on a printed form, which appears to be in vogue in the commercial circle at Cawnpore. One of the conditions stipulated for in the indent is No. 15, which runs as follows: Any claim or dispute arising in connexion with this contract, including claims or disputes in connexion with the non-delivery, unless an amicable settlement can be arrived at, must be referred to arbitration in Delhi, in accordance with the Survey and Arbitration Rules of the Delhi Piecegoods Association except when we refuse to accept and pay the draft, in which case the goods may be surveyed at the port of discharge). When the arbitrators or the surveyors disagree and do not appoint an umpire, the Delhi Piecegoods Association, if applied to by either party to the dispute, shall appoint an umpire. The decision of the arbitrators or surveyors or of the umpire shall be final and binding on both parties. In all other respects the Indian Arbitration Act 9 of 1899 shall apply. It is further agreed that if within 30 clear days... after being requested by latter addressed to his or their usual place of business either party fail to appoint an arbitrator or surveyor ready and willing to act, the decision of the arbitrator or surveyor appointed by the other party shall be in like manner binding on both parties....

(3.) It should be mentioned that the Arbitration Act 9 of 1899 has been extended to Cawnpore. It is common ground that in accordance with the Survey and Arbitration rules of the Delhi Piecegoods Association the parties had to appoint one arbitrator each.