CHANDRABHAN BILOTIA Vs. GANPATRAI AND SONS

JUDGEMENT

(1.) On 24 September 1941, the Champdany Jute Co. Ltd., made out a delivery Order for 50,000 yds. hessian cloth in favour of Messrs Adamjee Hajee Daud & Co. Ltd., or order. Various dealings with this document took place, it being endorsed gen-erally by those in whose favour it was drawn and endorsed again by six persons or com-panies before finally this document came into the hands of the present applicants. Where a document of this kind is negotiated in this manner and treated as though it were the goods that it represents, that which takes place is sometimes called "symbolic delivery" of the goods. It is also, I think, quite accurate to say that it is a conditional delivery of the goods, much in the same way as the handing over of a cheque is a conditional payment of money, the condition being that when the holder of the Order wants his goods he should be able to get them by presenting it. On 1st October 1941, the present applicants sold the goods represented by this order, which had by then come to their hands, to the present respondents on the terms of a sold note in the Indian Jute Mills Association printed form which embodied certain printed terms and conditions. Payment and delivery were to take place ready cash against mills p. d. (standing for "pueca delivery") orders, and in fact on that date the present respondents paid for the goods and the present applicants endorsed and handed to them the delivery order. The 13 of the Terms and Conditions read as follows: All matters questions disputes difference and/or claims arising out of and/or concerning and/or in connexion with and/or in consequence of or relating to this contract whether or not the obligations of either or both parties under this contract be subsisting at the time, of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.

(2.) The rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce were, I understand, in the same form at all material times as far as this case is concerned and included the following provisions. By Rules 11 to 13 inclusive, documents corresponding to pleadings in litigation are to be delivered by the disputing parties and by Rule. 15 and 16 the following provisions were made: 15. A dispute will normally be decided by the Court on the written statements of the parties and oral evidence will not be taken nor will the parties be entitled to appear or any formal hearing be held. The Court shall have power however if it thinks fit to appoint a time and place for the hearing of the reference and to hear oral evidence. 16. In any case of a formal hearing no party shall without the permission of the Court be entitled to appear by counsel, attorney, pleader, advocate or adviser but the Court in its discretion may require the parties with or without witness to attend before it or before any Sub-Committee or Sub-Committee of the Chamber to be examined.

(3.) "Court," I should say, means by Rule 1 the arbitrator or arbitrators appointed for deter- mining a particular dispute or the umpire where an umpire has been appointed. Rule 20 provides as follows: The Court may proceed with the reference notwithstanding any failure to file a written statement within due time and may also proceed with the reference in the absence or any or both of the parties who being entitled to appear before the Court after due notice refuse or neglect to attend.