Salil K.Roy Chowdhury, J. - (1.) THIS is an application under Section 33 of the Arbitration Act, 1940, inter alia for determination of the existence, validity and scope of the arbitration agreement and a declaration that no arbitration agreement has been entered into between the parties and injunction restraining the respondent and his agents and servants from proceeding with the arbitration proceedings before Indo-Ger-man Chamber of Commerce on the basis of the claim contained in the letter dated the 29th of November, 1979, and for other incidental reliefs.
(2.) THE petitioner moved the application on the 22nd of April, 1980, and obtained an interim injunction restraining the respondent and his agents, servants and assigns from proceeding with the arbitration proceedings before the Indo German Chamber of Commerce on the basis of the claim contained in the letter dated the 29th of November, 1979. being annexure 'D' to the petition. Returnable date was fixed on the 16th day of April, 1930. On the returnable date directions were given for filing affidavit-in-opposition by 3rd day of May, 1980 and affida-vit-in-reply by 13th day of May, 1980, and the matter was adjourned till 14th of May, 1980. THEn again on the 14th of May, 1980, extension of time to file affidavits was asked for and time was granted for filing affidavit-in-opposition by 2nd of June, 1980, and affidavit-in-reply by 9th of June, 1980, and it was adjourned till 10th June, 1980. THEreafter, the matter was heard. The relevant facts for the purpose of this application which are not disputed are that there were negotiations and discussions between one Mr. Warner Bock of the respondent and one Mr. M.L. Deora of the petitioner (sic). Mr. Bock visited India held at Calcutta at the office of petitioner. In or about April, 1979, when the said petitioner (sic) and art agreement was arrived at by which the Respondent offered to purchase 1,20,000 pairs of cow hide spilt leather working gloves at the rate of D.M. 1.17 per pair of gloves of the aggregate C.I.F. value of D.M. 1,40,000. Pursuant to the said agreement a pro forma invoice of the petitioner dated 19th of April, 1979, confirmed the said business transaction and a copy of which is annexed to the petition being annexure 'A' at page 10, The said pro-forma invoice contained the terms of the said contract regarding shipment, payment by irrevocable letter of credit. Thereafter, the Respondent by his letter dated 7th of May, 1979, two orders both dated 7th of May, 1979, being J.E. 2556 and 2557 for 60,000 pairs of gloves each were sent to the petitioner, A copy of the said covering letter and a copy of one of the contracts/orders for 60,000 pairs of gloves is set out hereunder:-- JUDGEMENT_18_AIR(CAL)_1981Html1.htm
(3.) THEREAFTER, the petitioner acknowledged the receipts of the said two orders and the covering letter dated the 7th of May, 1979, from the Respondent and by their letter dated the 31st of May, 3979, suggested certain modifications particularly as to the price and specifically affirmed the arbitration clause. The said letter is annexed to the petition and is at page 15 and the confirmation of the arbitration clause is in Clause 5, Sub-clause (d) in the following terms:-- "Specially in view of the arbitration clause stated in your contracts, we feel that the inspection certificate by any third party is not necessary. Now in view of all above factors we wish to suggest as under for your kind perusal and acceptance; (i) Price: Although according to the present raw materials prices are lowest possible price works out to D.M. 1.33 per pair C.I.F. However, after giving due consideration to keep the business relation on sound basis, we request you to kindly bear with all our difficulties and raise the price to D.M. 1.25 per pair C.I.F....... .................. We are confident that our above requests shall be given due consideration and look forward for your confirmation with amended contract sheets on receipt of which needful shall be done.";