Chakravartti, C.J. - (1.) TWO points have been urged in this appeal on behalf of the Appellant, while the Respondent has urged a point of its own. The Appellant has contended that the award sought to be enforced is void, (a) because it was given after proceedings under Section 33 of the Indian Arbitration Act had been commenced by the Appellant and notice of such proceedings had been given to the arbitrators, and (b) because the award allows damages in contravention of the Indian Contract Act. The Respondent has contended that no appeal lies.
(2.) THE facts are as follows: On June 18, 1946, the Appellant company, as the seller, entered into a contract for the sale of a quantity of jute to the Respondent as the buyer, the goods to be shipped to Rio de Janeiro. The contract provided that the shipment was to be "when freight available". There was a default clause which provided that in the event of default of tender or delivery, the seller would pay to the buyer "as and "for liquidated damages 10 s. per ton plus the excess, if any, "of the market value over the contract price". The contract proceeded to provide that the market price to be taken into consideration would be the price prevailing in London on the date following the date of default and it provided further that the contract would he deemed to be performed in London and would be governed by the English Law. It is not disputed that the Appellant delivered only thirty -nine of the five hundred bales contracted to be sold and did not deliver the balance on the plea that the contract had lapsed. On July 14, 1949, the Respondent referred the dispute between the parties to the arbitration of the London Jute Association, as provided for in the contract, and notice of the reference was served on the Appellant on July 27, 1949. It appears that on August 10, 1949, the Appellant retaliated by commencing a proceeding under Section 33 of the Arbitration Act in this Court and gave notice of that proceeding to the arbitrators in London, first, by a telegram on August 13, 1949, and, secondly, by a letter on August 17 following. In spite of the notice of the proceeding under Section 33 having been given, the arbitration proceeded and an ex parte award was made on October 17, 1949. The application under Section 33, after having been adjourned from time to time, was finally adjourned sine die on November 23, 1949. It will be noticed that before the application under Section 33 was finally adjourned, the award had already been made. The award is one to which the Arbitration (Protocol and Convention) Act, 1937, applies. On November 30, 1951, the Respondent made an application to this Court under Section 5 of the Act, praying that the award be filed in this Court, that notice be issued to the Appellant to show cause why the award should not be filed and that judgment be pronounced in accordance with the award and a decree be passed accordingly. The notice of motion served in connection with that application, however, stated merely that the Appellant was to show cause why the. award should not be filed.
(3.) BEFORE the learned Judge who had occasion to consider the application, the same two points as urged before us were taken. He overruled them both and by his judgment, dated January 14, 1952, made an order that the award should be filed and that there should be a judgment in terms of the award. The decree, as drawn up, however, omitted the direction regarding the filing of the award, but at the same time provided for the costs of filing it. It is from that judgment that the present appeal has been preferred.5. It was contended on behalf of the Respondent that no appeal lay at all, inasmuch as the learned Judge had not made any. order for filing the award which had been incorporated in the decree. It was also contended that a decree having already been passed in terms of the award no appeal could lie any longer at all, except to the extent provided for in Section 6(2) of the Arbitration (Protocol and Convention) Act, which was not the case here. In my opinion, this contention is not correct. The present case is not governed by the Arbitration Act and, therefore, strictly speaking, the question as to whether an order directing the award to be filed had been specifically passed or not is not very material. It is not as if a right of appeal is given by the statute only from an order filing or refusing to file an award, and no such order was passed. But I might observe that in cases arising under the Second Schedule to the Code of Civil Procedure before its repeal, it had been held that a mere omission to make a specific order directing the award to be filed would not defeat a right of appeal from such an order when, in fact, a judgment had been passed on the award. The reasoning of those decisions is that a judgment having been passed in accordance with the award, it could have been passed only upon the footing that the learned Judge held that the award ought to be filed and that being so, the omission to give a specific direction to that effect would be only an accidental one which could not affect the right of appeal which a party had under the statute. Those decisions will not in terms apply to the present case, inasmuch as Section 39 of the Indian Arbitration Act which provides for appeals from certain orders made under that Act has no application here. The present appeal can be defended, if at all, under Clause 15 of the Letters Patent, which gives a right of appeal from a judgment of a Judge, sitting singly, on the Original Side of this Court. There can be no doubt whatever that there has been a judgment in this case Mr. Sanyal contended that although a judgment had been delivered, something else had been done, namely, a decree had been passed and since a judgment could not be dissociated from a decree and since no appeal could lie from the decree itself, in the circumstances of the present case by reason of Section 6(2) of the Arbitration (Protocol and Convention) Act, 1937, there could be no independent right of appeal from the judgment. He also contended that by a mere order directing the award to be filed, assuming that such an order could be read into the terms of the decree and its existence in the judgment could be recognised, no rights of the parties had been finally determined and consequently such an order could not be treated as a judgment. I am unable to accept either of those contentions.;