KARUNAKUMAR DATTA GUPTA Vs. LANKARAN PATWARI

JUDGEMENT

(1.) This is a suit to set aside an award of the Indian Chamber of Commerce upon certain contracts for the sale and purchase jute entered into by the plaintiff. A case, very similar on facts and in principle, was decided by Panckridge, J., in Chong Wong V/s. Brijmohan Dhandhania Suit No. 187 of 1929 Decided on 11 February 1930. The facts in outline are as follows:

(2.) The plaintiff is a retired District Engineer. In September 1928, he was introduced by one Shisirkumar Ray to the defendant firm represented by Sobhachand. Sobhachand was and is a member of an association called The East India Jute Association, Limited, which was formed in 1927. According to the plaintiff and Shisir, the plaintiff wanted to do "fatka" business. There were meetings between the, plaintiff and Sobhachand, at one of which, at any rate, Shisirkumar Ray was present. There is some dispute between the parties as to whether the first interview between the plaintiff and Sobhachand took place outside the offices of the East India Jute Association or at the plaintiff's house. It is not disputed that there wore interviews between the plaintiff and Sobhachand, subsequently at the plaintiff's house. It is the plaintiff's case that the matter was discussed between himself and Sobhachand and that it was agreed that no deliveries should be given or taken. According to the plaintiff, this discussion ensued upon the receipt by him of the first contract note, on 12 September 1928. In all eleven contracts ware passed between 12 September 1928, and 11 October 1928, all being for the delivery date at the end of December. On these eleven contracts, a sum of about Rs. 929 became duo from the plaintiff to the defendant and by reason of the last three contracts Nos. (320, 326 and 331 a lot of one thousand bales was left on hand as a sale by the plaintiff, i.e., one thousand bales were to be bought by him to close the contracts then open.

(3.) It is the plaintiff's case that on 12 October, he telephoned to the defendant firm to buy in this outstanding one thousand bales, that his request or order was not carried out, that he insisted upon having them bought in at the opening rate, that the defendant firm would not give him that rate, and that therefore he refused to go on with the transaction and repudiated liability for any loss which might ensue. According to Sobhachand, there was no such telephone conversation; the plaintiff would not give instructions to close, so that he had to close according to the system of the association on 16 October 1928, and that did so at a rate which resulted in a loss of Rs. 2,043. This sum together with the sum I have already mentioned is due upon the eleven contracts. Rs. 2,968-12-0 in all was claimed by the defendant firm. On the plaintiff's refusal to pay, the defendant firm submitted the dispute to the arbitration of the Indian Chamber of Commerce, in accordance with one of the clauses of the contract, It is conceded that the plaintiff had notice of the arbitration. He ignored it. On 12 April 1929, an award was made against the plaintiff for Rs. 2,847-4-5 and costs and on 28 June 1928, this suit was filed. I need not refer to the pleadings. The essential questions involved are as follows: (1) Does the award comprise or include matters not referred? (1)(a) If so, can the award be set aside on that ground? (2) Are the defendants entitled to enforce the contracts, having regard to the provisions of Section 23G, Contract Act? (2)(a) If not, is the plaintiff entitled to have the award set aside on this ground? (3) Were the contracts by way of wager? (3)(a) If so, is the plaintiff entitled to have the award set aside?