PREMCHAND VADILAL Vs. MITHABHOY AND CO

JUDGEMENT

(1.) In this case plaintiff filed a suit in the Presidency Court of Small Causes at Bombay to recover the customs duty and other charges paid by him in respect oil certain cases of piece- goods which arrived in Bombay. In April 1929 the plaintiff indented for nine cases of piece- goods from the defendants firm. The plaintiff's contention was that the goods were not of the same quality and colour, and two arbitrators were appointed to decide if the cases were of the contract colour and shade. In April 1930 the arbitrators agreed in their decision that the goods were not of the contract colour or shade. They, however, differed on another point. Subsequently the plaintiff cancelled the contract and refused to take delivery. The defendants made an application to the High Court to have an umpire appointed, and in August 1930 Wadia J. refused the application on the ground that only one point was referred to the arbitrators, namely, the quality of the goods, and the arbitrators had agreed upon the dispute which was referred to them, and if they differred on a point which was outside the scope of the reference, there was no ground to appoint an umpire and it was more a concern of the parties. In October 1930 the plaint in the present suit was filed, and though no separate application was made for a stay of the suit under Section 19 of the Indian Arbitration Act or under Clause 18 of the second schedule to the Civil Procedure Code, the point was raised by the defendants in their defence which contained sixteen points.

(2.) The question as to whether there should be a stay of the suit was first decided by the fifth Judge of the Court of Small Causes in February 1931. He proceeded on the ground that Wadia J. in his judgment observed that the legal consequence of the unanimous finding was the concern of the parties and none of the arbitrators, and on a consideration of the events that occurred the learned trial Judge was of opinion that the defendants were not entitled to have the suit stayed to enable the parties to have a recourse to a second arbitration. The case then went on before the Small Cause Court Judge, evidence was led by the defendants and eventually a decree was passed in favour of the plaintiff for Rs. 903-3-0 and costs. An application was made to the Full Court, and the Full Court differing from the view of the trial Court as to the construction of Clauses 21 and 22 in the contract and as to the effect of the judgment of Wadia J., set aside the decree of the trial Court and ordered a stay of the proceedings.

(3.) It is contended before us, first, that under Section 38 of the Presidency Small Cause Courts Act, the defendants ought to have gone to the Full Court against the original order. Further, it is contended that after the defendants acquiesced in going on with the suit on the merits, they could not re-agitate the same question before the Full Court, and assuming that it was open to re-agitate the question before the Full Court, the Full Court was not right in interfering with the discretion of the trial Court, and, lastly, it was contended that on the merits, in view of the decision of Wadia J., the Full Court was not competent to adopt the construction which it placed on Clauses 21 and 22 of the contract, and on the merits the order of the Full Court was wrong.