Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Nabin Chandra Saha vs Sinclair Murray And Co. on 28 May, 1914
Equivalent citations: 25 Ind Cas 951
Author: Chaudhuri
Bench: Chaudhuri


Chaudhuri, J.

1. This is an application by one Nabin Chandra Saha, a merchant, that the award purported to have been made by the Bengal Chamber of Commerce or arbitrators appointed by them, dated the 25th, March 1914, and filed on. the 27th March 1914, should be set aside and that Messrs. Sinclair Murray and Co., respondents, should be restrained from enforcing the same. The petition mentions the award in the singular number, although there are two. This was pointed out to the learned Counsel appearing on behalf of Messrs. Sinclair Murray and Co. and the petitioner asked for leave to put in a second petition. Such application has been filed subject to the objection of the other side. There were two contracts entered into between the petitioner and Messrs. Sinclair Murray and Co., dated the 3rd April 1913. The contracts contained an arbitration clause in these terms: Any dispute arising out of these contracts shall be referred to the arbitration of the Bengal Chamber of Commerce, whose decision should be accepted as final and binding on both the parties,” Disputes regarding delivery arose in September 1913. The respondents submitted their difference bills on the 9th September 1913 and the petitioner having refused to pay, the respondent, wrote to the Registrar of the tribunal of the Bengal Chamber of Commerce on the 16th January, 1914. In their letter they asked that the Chamber was to fix the market rates of the 31st August and the 30th September and to award the difference due to them for the breach. The Registrar wrote to the petitioner on the 20th January 1914 about the submission made which elicited no reply from the petitioner. The Registrar wrote again informing the petitioner that he had been directed by the Court constituted to adjudicate that unless he (the petitioner) sent in his case before the 12th of February, the arbitration would be proceeded with without any further reference. This also elicited no reply. On the 14th February the Registrar wrote to the petitioner in these terms: “I am directed to state that the arbitration will now proceed.”

2. The petitioner stated that between the 6th and the 14th February he was seeking legal advice and that he had done nothing His objections were: (1) that the names of the arbitrators were not disclosed; (2) that no time or place for the hearing was fixed; (3) that no opportunity was given to him to prove his case; (4) that the arbitrators should not have proceeded with the reference ex parte; (5) that the rule’s were ultra vires and illegal; and (6) lastly that the award was in excess of the claim, that was: to say that the arbitrators had allowed a larger sum and at higher rates than the claim of the respondents, which they submitted in their difference bills. In this application the petitioner did not say that he did not know the rules, but apparently on receipt of the letter from the Registrar he went to his legal advisers and sought their help. He could then, if he chose, if he had sufficient grounds have repudiated the authority of the Bengal Chamber to arbitrate or required the other party to state as to under what rules, if any, or under what manner the Chamber was going to proceed. From paragraph 12 of the petition it can be inferred that he had some knowledge of the rules. Of course, it is difficult to come to any conclusion from that paragraph as to when he came to know of the rules, but it is clear that although he was repeatedly written to, he did nothing in the matter and he allowed the persons or the Court appointed to adjudicate to proceed with the reference. It has been held by Mr. Justice Harington in Ganges Manufacturing Co. v. Indra Chand 33 C. 1169 that a person who had submitted to an arbitration of this nature Must be deemed to have known the rules wider which the Chamber was going to proceed and that he could not be heard to say that he was not bound by the procedure followed by the Chamber. I am not prepared to agree with that judgment in its entirety. There was no allegation at all that the procedure which was followed was not a regular procedure. So far as the proceedings being ex parte there is no ground of complaint. The petitioner deliberately refused to do anything and there was no duty cast upon the arbitrators to further give him an opportunity of being heard.

3. The serious question in this case, however, is as regards the award being in excess of the claim. It is clear that the award exceeds the amount mentioned in the difference bills and that the rates allowed by the arbitrators are in excess of the rates demanded by the respondents. On this point I think that the arbitrators have gone in excess of their jurisdiction. I accordingly remit the award to the arbitrators for re-consideration. With regard to the costs of this application, taking all the circumstances into consideration I think that justice will be met by directing each party to bear his own costs.

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