JANKI DAS Vs. KALU RAM

JUDGEMENT

(1.) This is a petition for the civil revision of an order by the Subordinate Judge of Cuttack declining to act under Order 14, Rule 2, Civil P.C., and to direct the preliminary hearing of a certain issue in a suit. The facts which have given rise to the suit and the matter now before me may be shortly stated as follows: A firm called Janki Das Subhkaran carries on business in Calcutta and another firm called Ganesh Das Kalu Ram carries on business in Cuttack. They had a series of dealings in merchandise between them. The Calcutta firm sued the Cuttack firm in the High Court in Calcutta alleging that a certain series of contracts had been entered into between them and the Cuttack firm in relation to betel-nuts and paddy, that the defendants had broken the contract and that the plaintiffs had a claim against the defendants for a sum of money. The defendants very shortly afterwards began a suit in the Court of the Subordinate Judge at Cuttack against the Calcutta firm setting forth that they had been in business relationship with the Calcutta firm, alleging the Cuttack firm's version of the nature of the contract, alleging breaches by the Calcutta firm of the alleged contract, and claiming from the Calcutta firm payment of a sum of money. The Cuttack firm then put in a written statement in answer to the suit in Calcutta against them by the Calcutta firm and in para. 9 of that written statement the defendants alleged that far from it being the case that the Cuttack firm was indebted to the Calcutta firm for the alleged breaches of the alleged contract, the contract was of a very different nature, that the plaintiffs (the Calcutta firm) had broken the contract and there was a liability on the part of the Calcutta firm to the Cuttack firm, further stating specifically that in respect of that liability of the Calcutta firm to the Cuttack firm the latter had already begun a suit in the Subordinate Judge's Court at Cuttack against the Calcutta firm.

(2.) It is clear therefore that the issues in the Calcutta case which would ultimately have to be settled between the parties were as to what was the nature if any, of the contract of dealing between the plaintiffs and the defendants of the suit, whether there had been breaches of the alleged contract, whether the defendant- firm owed the plaintiff-firm money or whether it was just the other way. It is true that in the suit in Calcutta the Cuttack firm did not raise a formal counter-claim in respect of the indebtedness which they alleged had been incurred by the Calcutta firm, but they set up that indebtedness as a defence to the suit and said that the same matter of indebtedness was the subject of the suit by the Cuttack firm against the Calcutta firm in the Cuttack Court. The parties were brought by mutual friends into a state of mind that they thought it might be well to refer the matter to arbitration and accordingly under the aegis of the Court two arbitrators were appointed to enter into the merits of the dispute, who stated in their award that neither party owed anything to the other. It was about the time of entering into this arbitration that an application was made in the Cuttack Court to stay the further hearing of the suit brought by the Cuttack firm on the ground that the matter was to receive the attention of the arbitrators, and an order was made on that application staying the further hearing of the suit. The form of the award made by the arbitrators was the subject of some discussion before the Court and the High Court at Calcutta referred the award back to the arbitrators for further consideration with the order that the award might be made more explicit. The arbitrators proceeded to comply with that order and reiterated the statement that in respect of the respective claims by each party against the other, neither was under any liability to the other. The Cuttack firm then objected to the award before the learned Judge of the High Court in Calcutta on the ground that the award purported to deal with matters in dispute other than the litigation before that Court and they said that the award should not be made an order of Court because it purported to deal with the Cuttack suit which was outside the jurisdiction of the Calcutta High Court which had no power to dismiss a suit brought in Cuttack. The learned Judge dealt with that objection and delivered a judgment which 1 think is perfectly clear, but which seems to have been misunderstood by the learned Subordinate Judge in the Court below.

(3.) The learned Judge stated that the written statement in the Calcutta suit set forth the matter of the alleged liability of the plaintiffs to the defendants and the version of the contract as put forward by the defendants as a basis for their allegation of the plaintiffs liability, and that that matter, viz., the question of the alleged liability of the plaintiffs to the defendants, was, it is true, made the subject of the award but, on the other hand, the arbitrators did not purport in form to deal with the suit that was brought in Cuttack. I may quote a few sentences of the learned Judge's observations which to my mind put the meaning of his order beyond dispute. He says: It seems to me that what they have done is to say that they have taken into account all the matters that have been placed before them in both suits. The matters in dispute all arose out of the same series of transactions and it is urged on behalf of the Calcutta firm who are opposing this application that it is essential in coming to a conclusion in either this suit or the other to take an account of the various transactions between the parties. All that the arbitrators have done, they say, is to take an account, and in that account they are bound to know what claims have been made against either party, what are the debits and what are the credits; on looking into that account the arbitrators have come to the conclusion that neither party should have anything debited or credited against it.