- (1.) This appeal is directed against a judgment of an appellate Bench of the Calcutta High Court, dated the 24th February 1953, reversing, on appeal, the judgment and order of a single Judge sittting on the Original Side of that Court, passed on an application under section 34 of the Arbitration Act. The material facts are not in controversy and may be shortly stated as follows:
(2.) On the 7th of July 1950 the respondent Moran and Company Limited passed two Bought Notes to the appellant company, couched in identical terms, under which the appellant purchased 12,00,000 yards of hessian cloth, 6,00,000 yards under each contract, on certain terms and conditions stated therein. The delivery was to be made every month from January, 1951 at the rate of 1,00,000 yards per month under each of these notes and payments were to be made in cash on delivery, each delivery being treated as a separate and distinct contract The Bought Notes commenced thus : "Dear Sirs, We have this day Bought by your order and on your account from our Principals".The particulars of the goods, the price, the time of delivery and other terms of the contract are then set out and amongst the terms is an arbitration clause worded as follows: "All matters, questions, disputes, differences and/or claims arising out of and for concerning and/or in connection with and/or in consequence of or relating to this Contract, whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbiratration for the rules the arbitration shall be conducted". The notes were signed by the respondent Moran and Company describing themselves as brokers.
(3.) It is admitted that the goods covered by the Bought Notes were delivered to the appellant in all the months from January to June 1951 with the exception of the goods due to be delivered for the month of March 1951. The appellant required from the respondent delivery of goods in inspect of the month of March but the latter informed the appellant, by a letter dated the 27th March, 1951 that its principals disowned any liability in, this respect as there was default on the part of the appellant in not giving shipping instructions for the said goods within the time mentioned in the contracts. The appellant denied any default on its part and did not also accept the position that the respondent had any principal, and on the 27th of April, 1951 it sent its bills to the respondent claiming Rs. 1,13,042-3-0 as damages for non-delivery of the goods. As the respondent did not comply with this demand, the appellant contemplated referring the matter in dispute to the arbitration of the Bengal Chamber of Commerce as provided in the contracts and while it was preparing to take steps in that direction, the respondent on the 11th of June 1951, filed a suit against the appellant in the Original Side of the Calcutta High Court (being Suit No. 2516 of 1951) and it is in respect of this suit that the application under Section 34 of the Arbitration Act has been made. It was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts of sale and purchase evidenced by the two Bought Notes mentioned above, that the real seller was a firm known as Gowarchand Danchand, and that the plainfiff not being a party to the contract could not incur any liability under its terms. There were prayers in the plaint for a declaration that the plaintiff was not a party to the said contracts and that it had no liability under the same. There was a further prayer for an injunction restraining the respondent from claiming any damages in respect of the said contracts. ;