- (1.) THESE two appeals are by the plaintiff and are against one and same judgment dated 30th September, 1967 passed by the learned Subordinate Judge, 3rd Court, Alipore in Misc. Case Nos.93 and 95 of 1964.
(2.) THE facts giving rise to the present appeals are, briefly, as follows: On the 20th June, 1959 the plaintiff V. K. Murti obtained an Import Licence from the Joint Chief Controller of Imports and Exports for the import of machinery from the United States of America for the manufacture of Salted Peanuts. THE plaintiff did not have the necessary finance with him and he was looking for a financer. THE defendant No.1 C. V. Rama Ayar, agreed to finance the plaintiff and an agreement was entered into between the plaintiff and the defendant No.1 on the 29th March, 1960 by which it was agreed, inter alia that a private limited company would be incorporated with the object of establishing a factory for the manufacture of Salted Peanuts by the said machinery to be imported under the plaintiff's import licence. In pursuance of the agreement a private Limited company was incorporated under the name and style of ?Bharat Kennels Private Limited? (hereinafter referred to as the 'company') on the 11th May, 1960. Disputes arose between the plaintiff and the defendant No.1 in January, 1961 and various correspondence went on between the parties for some time and ultimately the plaintiff instituted a suit, being Title Suit No.78 of 1962, in the 3rd Court of the Subordinate Judge, Alipore against defendant No.1 and several other persons, of whom the company was the defendant No.6, and the plaintiff's wife was the defendant No.12. In the said suit the plaintiff, inter alia, prayed for: (a) A decree declaring that the plaintiff is the owner and he has title over the machinery described in Schedule A to the plaint and for recovery of possession thereof, (b) In the alternative if the said machinery were not available then a decree for Rs.3,29,364.00 with interest at 6 percent per annum. After the said suit was instituted by the plaintiff, a petition was filed by the defendant No.1 under section 34 of the Arbitration Act praying for a stay of the suit pending reference to arbitration under the Arbitration Clause contained in the Deed of Agreement dated 29th March, 1960 between the plaintiff and the defendant No.1. A similar application was also filed on behalf of the defendant No.6, the company, which had been incorporated in the mean time. The said prayer of the defendants for stay was opposed by the plaintiff but the learned Subordinate Judge by his order dated 7th March, 1963, stayed the hearing of the suit under section 34 of the Arbitration Act. Thereafter arbitration proceedings went on before the Bengal Chamber of Commerce and Industry in terms of the Arbitration Clause contained in the Deed of Agreement dated 29th March, 1960. On the 9th October, 1964 the Bengal Chamber of Commerce and Industry made an award in favour of the plaintiff. On the 15th December, 1964 and 16th December, 1964, two petitions were filed by the defendant. Nos.1 and 6 respectively for setting aside the award under section 33 read with sections 30, 15 and 16 of the Arbitration Act. The said two applications were registered as Miscellaneous Cases Nos.93 of 1964 and 95 of 1964 respectively. By an order dated 30th September, 1967, the learned Subordinate Judge upheld the defendants' objection and allowed the two Miscellaneous cases. The plaintiff has preferred the present appeals against the order allowing the two Miscellaneous Cases.
(3.) MR. Banerjee appearing on behalf of the plaintiff has argued in the first place, that the learned Subordinate Judge was wrong inasmuch as the import licence is not per se non-transferable but it is transferable with the consent of the Licensing Authority. MR. Banerjee has referred to Clause 90(2) at page 61 of the Handbook of Rules and Procedures on Import Trade Control (1967 Edition), (hereinafter referred to as 1967 Handbook). But Clause 90(2) has no application in the present case because that clause is headed 'change in the name, constitution. Or ownership of actual user's licence?. In the present case there is no question of change in the name, constitution or ownership of the actual user's licence, MR. Banerjee has also referred to paragraph 5(3)(i) of the Government of India, Ministry of Commerce and Industry, order No.17/55 dated 7th December, 1955, issued under the Imports and Exports Control Order, 1967 Handbook). The said paragraph runs as follows: ?No person shall transfer and no person shall acquire by transfer any licence issued by the Licencing Authority except under and in accordance with the written permission of the authority which granted the licence or of any other person empowered in this behalf by such authority?.;