BENGAL JUTE MILLS Vs. JEWRAJ HEERALAL

JUDGEMENT

(1.) This is an application to set aside an award made by the Bengal Chamber of Commerce in an arbitration upon the question referred to the arbitrators. The present applicants were the sellers and the present respondents were the buyers in two sale of goods contracts in respect of a total of 257 bales of jute known as T.S.G. Mark. Disputes arose, the buyers contending that the goods were not of the contract quality and they claimed an allowance in respect of the defective jute. The disputes under the two contracts were stated by the buyers in their letters of 10 and 18 February 1942. On 12 March following the arbitrators, through the Registrar of the Chambers Tribunal of Arbitration, published their award. I will deal later with the merits and substance of the application itself.

(2.) Learned Counsel on behalf of the respondents took a preliminary objection against the maintainability of the present application upon the following grounds. The applicants are a firm comprising three partners. The petition is signed and verified by one, Sukhdeo Singh who describes himself as the Munib gomasta of the firm, and in his affidavit at the foot of the petition he states that none of the partners were at Calcutta, and there was no likelihood of any of them going to Calcutta in the near future : that he was looking after the business of the firm and was fully acquainted with the facts and circumstances : he had verbal authority from the partners to appoint an attorney and to sign and verify the petition on their behalf. The objection raised is that the petition has not been signed nor verified as required by the Code inasmuch as the acts of signing and verification should be effected by a recognized agent of the parties, and Sukhdeo Singh is not such a person as indicated in Order 8, Rule 2, Civil P.C. Since there has been non-compliance in this respect the present application must be dismissed, it was contended, without consideration of its merits. The relevant provisions of Order 3 of the Code are as follows: Rule 1. - Any application to any Court required to be made by a party may, except where otherwise expressly provided by any law for the time being in force, be made by the party in person or by his recognized agent. Rule 2 defines "recognized agent" as (a) persons holding powers of attorney, (b) persons carrying on trade or business for and in the name of parties not resident within the local limits of the jurisdiction of the Court.

(3.) It was conceded that Sukhdeo Singh does not hold a power-of-attorney, and it was contended on behalf of the respondent that he does not come under "recognized agent" as indicated in Rule 2(b). As he was in Court and at the request of counsel for the applicants I allowed him to be examined and cross-examined. In substance his testimony was to this effect: his employers lived in Calcutta above or adjacent to the office of the firm : in March or April, or it may be a little later in the present year, the three partners of the firm left Calcutta for Rajputana on account of the panic arising out of their conception of the present emergency, and Sukhdeo Singh was left by them in charge of the whole business, being given authority to do everything which, was required, including any matters which the partners would themselves have to do in connexion with the arbitration before the Bengal Chamber of Commerce. He said that the three partners will return to Calcutta when the present panic or emergency comes to an end. It follows that they are not permanent residents outside Calcutta, and live in Kajputana, but are staying there temporarily although it may be for an extended period. The witness was asked whether he had been given oral authority to sign and verify the present petition, and his answer was that he had such authority inasmuch as he had authority to "do everything necessary" and which was required. I see no reason not to accept his evidence.