GOKAL CHAND GIAN CHAND Vs. ISHAR DASS DURGA DASS
HIGH COURT OF PUNJAB AND HARYANA
Gokal Chand Gian Chand
Ishar Dass Durga Dass
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Kapur, J. -
(1.) THIS order will dispose of two petns. for leave to appeal to the S.C. filed by M/s. Gokal Chand -Gian Chand against two parties and directed against two orders of this Ct.
(2.) THE facts are given in our order dated 28.12.1949. It may perhaps be necessary briefly to state them here again. On 16 -1 -1947 the resps. entered into a contract with M/s. Gokal Chand -Gian Chand of Amritsar for the purchase of some goods. There was in this contract a clause providing for arbitration in the following terms:
Any dispute or claim of whatever nature relating to or arising out of this contract, shall be referred to arbitration of two European merchants engaged in the piece goods trade at Karachi, one to be appointed by each party and in accordance with the provisions of the Arbitration Act X  of 1940.
In pursuance of this agreement, M/s. Gokal Chand -Gian Chand served a notice on the resp. on various dates informing them that as a breach of contract had occurred because of their default, they, the petnrs. had appointed an arbitrator in Karachi and called upon the buyers to nominate their arbitrator. The resps on 26 -10 -1948 filed an appln. under Section 33, Arbitration Act praying that the arbitration agreement should be declared ineffectual and unenforceable and be set aside and that the resps. be ordered to refrain from acting thereon or be restrained from acting on arbitration proceedings. Their plea, in other words was that there was an implied agreement in the contract that the arbitration will only be carried out if the same circumstances as existed at the date of the contract continued to exist at the date of the arbitration, and as Karachi had now become part of Pakistan Dominion the contract with regard to arbitration had been frustrated. The original petnrs. failed in the Subordinate Judge's Ct., but in this Ct. it was held that there was such an implied condition. It is against this order that the firm Gokal Chand -Gian Chand have asked for leave to appeal to the S.C.
Several objections were taken to the grant of such leave by Mr. Mahajan on behalf of M/s Ishar Das Durga Das and by Mr. Grover on behalf of M/s. Rama Nand -Vijay Parkash. It was submitted that the present case was one for leave to appeal to the S.C. under under Section 109(c) Civil P.C. leave should be given sparingly under that section Reliance was placed on several cases which have discussed in Batala Engineering Co. Ltd. v. Castodian of Evacuee Property Civil Mis No. 21 -C of 1950 and for reasons given there I agree with this contention.
(3.) THE second contention was that a matter must be of importance to both parties. This also I have discussed in the other case mentioned above and I need not repeat what I have said there;
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