CHANDMUL MULCHAND Vs. SAND CNORDLINGER

JUDGEMENT

(1.) This is a suit for a declaration that an award dated the 3 September, 1921, made by the Bengal Chamber of Commerce is invalid and inoperative.

(2.) On the 2nd January, 1918, the parties-to this suit entered into an agreement containing terms under which they would conduct business with each other, and amongst other terms the second provides that "in the event of any dispute arising as to inferiority of quality, defects or differences in the goods, the same shall be referred within 90 days of the arrival of the goods in Calcutta to the Bengal Chamber of Commerce unless a special agreement exists on the subject between the said parties, and no claim will be entertained if made after 90 days from date of arrival of goods." The latter part of the same clause provides that "the Chamber shall arrange for survey in accordance with its rules, that surveys shall be held on the actual goods and not on shipment samples, and that all survey reports, accompanied by samples, signedi and sealed by the surveyors, showing the basis on which their award has been made must be forwarded to the sellers whenever the award has been given against; them." On the 7th December, 1920, the-parties entered into a contract whereby the-plaintiffs agreed to buy from the defendants 60 bales finished Dhootis of rangin descriptions at prices stated in para. 1 of the plaint. The goods in due course arrived and disputes arose with reference to the number of counts and lengths of the Dhootis. The parties accordingly went to arbitration and on the 1st March, 1921, there was submitted to the Bengal Chamber of Commerce Tribunal an application-signed by the plaintiffs applying for the-"appointment of two arbitrators and the issue of an award for cancellation of the contract or allowance or such other relief as the arbitrators may think fit to award upon the under mentioned complaint and upon investigation of all facts arising out of the contract." On the same form against the printed title "Buyer's Complaints" are the words "see letter dated the 1 March," and against the printed title "Seller's Remarks" some five lines of typed matter are succeeded by a copy of a letter dated the 15bh November, 1920, from the defendants to the plaintiffs. This is succeeded by further type written matter which is signed by the defendants. At the conclusion appear the words : "The survey should be held on the goods and not on the shipment samples." For some reason or other which is not clear, a further document had to be, or, at all events, was filed before the Bengal Chamber of Commerce. It purports to be a brief memorandum of agreement made on the 5 April between the parties and recites that disputes have arisen between the parties as per Buyer's Statement of 1 March, 1921, submitted with Application Form No. 1 and as per Seller's Statement of 1 March, 1921, submitted with Application Form No. 1, and then proceeds to say : The matters in dispute are referred to the Tribunal of Arbitration of the Bengal Chamber of Commerce to be determined in accordance with the rules for the time being of the said Tribunal as far as such rules be applicable to the submission. This document which bears an eight annas stamp is signed by the parties. In due course, the arbitration was held and on the 3 September, 1921, the award was communicated to the parties over the signature of the Registrar of the Bengal Chamber of Commerce Tribunal of Arbitration and is in the following terms: We have considered the papers and as buyers Messrs. Chandmul Mulchand are unwilling to produce the bales required for inspection, their claim cannot be upheld and we award that they pay for and take delivery of the goods in terms of the contract. Buyers to pay cost of this reference, amounting to Rs. 101.

(3.) It is now contended that the award should be set aside, firstly for an error of law apparent on the face of it and secondly on account of the arbitrators having exceeded their jurisdiction in that they made an award without first having held a survey of the goods in question.