JOYLAL & CO Vs. GOPIRAM BHOTICA

JUDGEMENT

(1.) This is an appeal from the judgment of my learned brother Mr. Justice Chaudhuri by which he made absolute a Rule calling upon the defendants, Joylal & Co., to show cause why an injunction should not be granted restraining them, until the final disposal of the suit or further order of the Court, from further proceeding with the arbitration proceedings in respect of contract No. 13,700, dated the 6th day of December 1917. It appears that on the above- mentioned date the defendants had entered into a contract with the plaintiff. It was in the form of a sold note and was addressed to the plaintiff Gopiram Bhotica and was as follows: "We have this day sold by your order and on your account to our principals 1,50,000 yards Hessian cloths" of a description and quality therein stated. It was signed by the defendants as "Brokers." Delivery was to be January to March 1918, 50,000 yards monthly. The contract contained a Clause 12, which ran as follows: Any dispute whatsoever arising on or out of this contract shall be referred to arbitration under the rules of the Bengal Chamber of Commerce applicable for the time being for decision, and such decision shall be accepted as final and binding on both parties to the contract.

(2.) In January 1918, the plaintiff asked for a delivery order for 50,000 yards. This request was not complied with, and on the 31st of January 1918, Messrs. Khaitan & Co., on behalf of the defendants, tendered Rs. 8,750 as the value of the goods deliverable under the said contract. The goods not having been delivered, on the 12th of February 1918 the defendants sent a difference bill for Rs. 13,625 and demanded payment of that sum. On the 20th of February 1918, the plaintiff wrote the following letter: I am surprised to receive your letter of the 12th instant delivered me late by post, enclosing your difference bill No. 15,571, dated 5th current, for Rs. 13,625 and in reply beg to point out to you that due date price charged therein is not correct. Please amend the due date price as settled with you on the due date at Rs. 37 per 100 yards, and send me back at your earliest convenience for payment and oblige. Your bill is returned herewith.

(3.) On the 25th of February 1918, the defendants asked the plaintiff for delivery order for further 50,000 yards cloth. After several letters the plaintiff wrote the letter dated the 6th of March 1918. It is as follows: "l am in receipt of your letter of 2nd instant, delivered me late by the post office, and in reply I challenge your right of purchasing the goods against me after due date. I regret I cannot entertain your claim." A difference bill was sent and the plaintiff replied on the 16th of March 1918 as follows: "I have no other alternative but to refer you to my letter of 6th current. I deny my liability in the matter." A similar demand for delivery order was made in respect of the March consignment, and upon a difference bill being submitted by the defendants, the plaintiff on the 11th of April 1918 denied his liability. On the 18th of November 1918 the defendants wrote to the Registrar, Tribunal of Arbitration, the Bengal Chamber of Commerce, submiting their statement and requesting the constitution of a Tribunal of Arbitration upon the matters in dispute between the defendants and the plaintiff. On the 18th of December 1918 the plaint in the suit was filed: in it the plaintiff asked "(a) For a declaration that the defendant firm is not entitled to proceed with the said arbitration or claim any damages under the said contract in which he acted merely as broker; (6) for an injunction to restrain the defendant firm from proceeding with the said arbitration pending before the tribunal of the Bengal Chamber of Commerce." On the same day an application was made by the plaintiff for an interlocutory injunction to restrain the defendants from proceeding with the arbitration. The learned Judge on that day granted a Rule, which, as already stated, was made absolute on the 4th of June 1919.