RAMLAL MURLIDHAR Vs. HARIBUX PURANMULL

JUDGEMENT

(1.) This is an application on behalf of the defendant firm under Section 19, Arbitration Act, for an order that all proceedings in this suit be stayed. It appears that on 28 June 1923 the defendant firm entered into a sowdah or contract with the plaintiff firm for the purchase of thirty bales of saris 10 yards 44 inches of Hati border of two colours, shipments July, August and September. An entry was made in the plaintiff firm's sowdah book setting out the terms of the contract between the plaintiff firm and the defendant firm which was signed by or on behalf of the defendant firm. The entry contains the following; words: As we bought the goods of Punna Lal Sagoremull we sold to you in the same way. All the terms and conditions are the same as there.

(2.) There was, it is admitted, an arbitration clause in the contract by which the plaintiff firm had bought the goods, which they had sold to the defendants, from Punna Lal Sagoremull, and the applicant relies on the words I have just quoted in the entry in the plaintiff firm's book relating to the sowdah in suit as having the effect of incorporating the arbitration clause in the contract or sowdah in suit. It is on the strength of that arbitration clause that is alleged to have been incorporated in the sowdah in suit that the present application is sought to be maintained.

(3.) It appears, that the goods, the price of which is the subject matter of the present suit, were delivered to the defendant firm on 11 January 1933. On 5 December 1933 the plaintiff firm through their solicitors made a demand on the defendants for payment of what they claim to be due to them for price of goods delivered. On 11 December 1933 the defendant firm replied to the letter of the plaintiff firm's solicitors. In the letter of 5th December the plaintiff firm's solicitors had threatened that failing payment within 24 hours from the receipt of their letter their instructions were to take steps against the defendant firm. In their reply through their solicitors, Messrs. P. D. Himatsingka & Co., on 11 December 1933, the defendant firm in the last paragraph of their letter wrote: Please note that if in spite of what is aforesaid your clients take any steps they will do so at their own risk as to costs.