Bachawat, J. - (1.) THIS is an application to set aside an award made by the Bengal Chamber of Commerce.
(2.) BY a contract dated 10-8-1950 the petitioner . Juggilal Kamlapat agreed to sell and the respondent a Dutch Company agreed to buy 500 bales of certain jute goods at Rs. 209/- per 100 bags C. and F. Jawa Main Ports, draft drawn at sight under an irrevocable letter of credit, shipment November/December 1950 equally, subject to export licence and subject to the terms and conditions of the Calcutta Jute Fabrics Shippers Association contract form in use for the time being. That contract form amongst other clauses contains an arbitration clause, a clause providing that the Letter of Credit must be despatched to the sellers within 7 days of the contract and a clause providing that each monthly shipment would be deemed to be a separate contract. Under the contract all increases in freight and duty were on the buyer's account. The letter of credit was despatched to the sellers after great delay in the first week of December 1950, but nevertheless the buyers accepted and acted upon it. Meanwhile the export duty was enhanced. On 20-11-1950 the parties agreed that the buyer would accept a Bank guarantee for payment of the increased duty pending amendment of the Letter of Credit and letters dated the 14th, 18th and 19th December 1950 were passed in this connection. The amendment was received soon thereafter on or about 29-12-1950. The petitioner shipped 200 bales under the contract in the 3rd week of January 1951 and by letter dated 20-1-1951 informed the respondent that they were then unable to ship the balance goods on account of the default of their sellers and would arrange for their shipment as soon as they were ready. The price control legislation then in force was repealed in March 1951 and soon thereafter on 3-4-1951 the respondent's agents pressed the petitoner for delivery of the goods. On the same day the petitioner requested the respondent's agents to extend the time of shipment until July 1951. The respondent's agents by their letter dated 13-4-1951 refused to extend the time and pressed for immediate shipment of the balance goods by S. S. Hoegh Silver Spray expected to sale from Calcutta on 24-4-1951. The petitioner by their letter dated 13-4-1951 stated that as desired by the respondent they were ready to ship the goods per S. S. Hoegh Silver Spray and were arranging accordingly. Shipping instructions were given by the respondent on 16-4-1951. In the meantime the freight had been increased and by their letter dated 24-4-1951 the respondent's agents requested the petitioner to send a separate debit note for the amount of the increase in freight and not to include it in the draft.
(3.) THE petitioners did not ship the goods and by their letter dated 1-5-1951 wrote to the respondent's agents stating that the goods could not be loaded alongside the steamer as their May/December 1950 quota had expired and that under the circumstances the goods should be treated as lapsed. THE respondent's agents by their letter of the same date asserted that the fact that the quota had expired could not be a reason for annulment of the contract because the petitioners had ample opportunity to ship before the end of March 1951 and also because they should have received a new quota for January/June shipment. THE respondent's agents requested the petitioner to hand over delivery orders in respect of the balance goods in case they could not obtain a new quota. THE petitioners by their letter dated 4-5-1951 informed the respondent's agents that they had not been allotted any new quota for January/June 1951 and that they could not keep the contract pending and the same should be treated as cancelled. THEy further stated that they were unable to agree to hand over delivery orders as the contract was on the basis of C and F Indonesian Ports THE respondent agents by their letter dated 7-5 1951 informed the petitioner that they could not under any circumstances agree to the cancellation of the contract and that they would start buying against the petitioner as from the next day and would bill the petitioner for the difference in price and at the same time would submit the matter to the Bengal Chamber of Commerce for arbitration.;