JITMULL-GIRDHARI LAL Vs. RAM GOPAL BOHITRAM

JUDGEMENT

(1.) This is one of two suits which have been brought to set aside awards of the Bengal Chamber of Commerce in respect of a contract made in the Jute Market in Calcutta. The type of contract in question is, I am satisfied by the evidence before me and by the reported cases, a well-known type. It is called by way of distinction a "principal contract." The contract with which I am concerned is "dated the 19 August 1918 and it is evidenced by Bought and Sold Notes, passed: (as the phrase goes) by the firm of Ramgopal-Bohitram, who are defendants before me. The characteristic of a "principal contract," such as this, is that on the Sold Note, which the broker sends to the seller, the name of the sellers themselves appears but the name of the buyers does not appear; instead of the buyers name the words "Our Principals" are inserted. In like manner on the Bought Note, which is sent to the buyers, the name of the buyers themselves appears and instead of the name of the sellers the words "Our Principals" are inserted.

(2.) The brokers in the present case are between two fires. What happened in the end appears to have been, that delivery was not taken of the goods and the sellers who, in this case were 3, firm called Maturam Dalmia, proceeded to claim arbitration against the brokers and got an award against the Brokers. The brokers stoutly maintained that they were mere brokers but as they were being proceeded against for damages, they too made a claim before the Bengal Chamber of Commerce against the buyers Jitmull-Girdhari Lal. The Chamber has come 0 the conclusion that the brokers are liable under the contract to the sellers and are entitled to enforce the contract against the buyers. It has made two awards upon that footing of which one in favour of the brokers and against the buyers. I am now giving judgment in a suit brought on the 14 March 1919, by the buyers to set aside that award.

(3.) Apart from any question of custom, the position of the broker in such cases as this, has been laid down by this Court on appeal from the Original Side in the case of Patiram Banerjee V/s. Kankinarra Co. Ltd. 31 Ind. Cas. 607 : 19 C.W.N. 623 : 42. C. 1050. Following certain English cases, this Court there held that there is a difference between a broker and an agent for sale. It was of opinion that Section 230 of the Indian Contract Act did not apply and it was further of opinion that the arbitration clause in the contract was no submission on the part of the broker. This then is the position apart from any questions of custom.