B SASHIL CHANDRA DAS Vs. SAKHAMAL BANSIDHAR

JUDGEMENT

(1.) These are connected applications to file two awards, purporting to be made on November 12th, 1920 at the close of proceedings taken under the Indian Arbitration Act in connection with a trade dispute between two firms, It is one of a number of connected applications which would, in the ordinary course of things, have been filed in the Court of the District Judge of Cawnpore; but ware transferred to this Court with the consent of the parties to be disposed of in the exercise of its original jurisdiction, because of the importance to the commercial community of some of the questions involved.

(2.) The firm in whose favour the awards have been made, that of Sushil Chandra Das & Co., which may conveniently be spoken of as the plaintiff firm are importers of piece goods from Manchester. The defendant firm, that of Sakha Mal-Bansi Dhar deals in the said goods but does not import on its own account. On August 21th, 1918 the defendant firm placed in the hands of the plaintiff firm two indents drawn up on a form published by the Delhi Piece Goods Association; one indent was for one hundred bales of red shirting, the other for twenty five bales of white Lawns. On September 2nd, 1918 the plaintiff firm wrote intimating their acceptance of the former order, and on September 4th, 1918 they similarly accepted the latter. It is admitted that the conclusion of the Armistice on November 11th, 1918 was followed by a heavy fall in the price of piece goods on the Indian market. On November 24th, 1918 the defendant firm wrote to the firm begging the latter to arrange with their supplier at home to expunge these orders from their books," and offering to pay "nominal damages" in return for this favour. Further correspondence followed; and on January 20th, 1919 the defendant firm wrote repudiating liability on the ground that there had never been any completed contrast of sale between the parties. The plaintiff firm claimed to have the dispute referred to arbitration under the terms of Clause 15 of the conditions endorsed on the printed form of tender which the defendant firm had used. The latter took up the position that, inasmuch as there had never been any completed contract between the parties, it necessarily followed that they were bound by no agreement to refer anything to arbitration. One attempt at obtaining a decision through a single arbitrator failed, the District Judge holding that the conditions necessary to entitle the one arbitrator nominated by the plaintiff firm to proceed to the delivery of an award bad not been fulfilled: I his order was upheld by this Court in a judgment dated August 9th, 1920. A supplementary award, which the name arbitrator had delivered while the proceedings relating to the filing of his first award were pending, was finally withdrawn by the plaintiff firm from the Court of the District Judge, on the very proper view that it had become ineffective owing to the decision affirmed by this Court's order of August 9 1920, The plaintiff firm, however, has proceeded upon certain principles laid down in the order above referred to it has assumed that the submission to arbitration is effective and subsisting, and has accordingly made another attempt to carry it into effect. On August 20th, 1920 they sent the other side notice that they desired to submit the entire dispute to arbitration and again nominated Mr. J.C. Roberts, President or Chairman of the Committee of the Delhi Piece-Goods Association, as their arbitrator. The defendant firm, under protest and without prejudice to their contention that they were not bound to go to arbitration at all, nominated Mr. A.C. Khosla. The two arbitrators held a single meeting, at Delhi, on September 27th, 1920. Mr. Khosla suggested the adjournment of the proceedings to a later date on the strength of a telegram which he had received, to the effect that the party nominating him was not ready with its evidence, Mr. Roberts took a very strong view that the defendant firm was merely trying to evade any effective arbitration, or in any case to spin out the proceedings until the expiration of a period of three months from the date of this Court's order of August 9th, 1920 should enable them to withdraw a considerable sum of money which they had deposited in the District Judge's Court: he definitely refused to adjourn and the arbitrators separated without having decided anything. A memorandum of their proceedings on that date was drawn up and signed by both of them. There has been a conflict of evidence between Mr. Roberts and Mr. Khosla as to whether or not they ever got so far as discussing the merits of the dispute, or the appointment of an umpire to adjudicate on the same upon their failure to agree: they certainly did differ on the question whether they should or should not proceed at once to pronounce a decision upon the materials available, and they did separate without appointing an umpire. Mr Roberts proceeded at once to draw np a paper which has been loosely described as his award"; it is of course a statement of his opinion on the dispute drawn up for the consideration of the umpire. On October 1 1920, Mr. Khosla similarly drew up a statement of his own. The plaintiff firm applied to the Committee of the Delhi Piece Goods Association to appoint an umpire. Notice of the application was sent to the opposite party; and on October 30th, 1920 Mr. Gur Prasad Kapur wrote to them to say that he bad been appointed umpire and had fixed November 12 1920 for deciding the matter. On that date he delivered the two awards sought to be filed; they adopt in its entirety the opinion formed by Mr. Roberts and award the plaintiff firm an ascertained sum by way of damages for the breach of contract of which the defendant firm is held guilty.

(3.) The objections taken to the filing of the award may now be stated and disposed of seriatim.