Salil Kumar Hazra, J. - (1.) TWO petitions filed by Batokristo Roy Company (Private) Limited for setting aside two awards dated May 9, 1969 and July 19, 1969 by the Tribunal of Arbitration of Bengal Chamber of Commerce and Industry were assigned to me by the learned Chief Justice. The first petition was filed on July 30. 1970 for setting aside the award dated July 19, 1969. I shall deal with this petition first. The facts are shortly as follows : Batokristo Roy Company (Private) Ltd. (I shall shortly call Roy Co.) carries on business as importers, exporters and commission agents in jute and jute goods H. Polesy and Co. (Importers) Private Ltd., a Company incorporated in Australia (I shall shortly call Australian Co.) carries on business as importers and dealers in jute and jute goods.
(2.) ON or about March 21, 1968 Roy Co. and Australian Co. entered into a contract whereby Australian Co agreed to buy from Roy Co. and Roy Co. agreed to sell to Australian Co. 200 bales of light wool packs of jute goods of certain specification and description. Under the contract the said goods were to be shipped in 4 monthly instalments of 50 bales each commencing from April 1968 i. e.. 50 bales were to he shipped in each of the months of April, May, June and July, 1968. Pursuant to the said contract in April 1968 50 bales of jute goods were supplied by Roy Co. to Australian Co. There was no dispute between the parties with regard to this supply. ON May 10, 1968 Roy Co. entered into another contract with Ambica Jute Mills Limited (I shall shortly call the Mills) whereby the Mills agreed to sell to Roy Co. 750 bags, i. e. 150 bales of light wool packs of identical specification and description as mentioned in the contract between the Roy Co. and Australian Co. deliverable by Roy Co. to Australian Co. in the months of May. June and July. 1968. ON May 19, 1968 the goods supplied by the Mills were despatched by Roy Co. to Australian Co, Similarly, in June 1968 the goods supplied by the Mills were despatched by Roy Co. to Australian Co. In July 1968 the goods supplied by the Mills were despatched to Australian Co There was no dispute between Aus ralian Co. and Roy Co. with regard to the goods despatched in July 1968. But in October 1968 Australian Co. complained about the weight and quality of the goods shipped in the month of June. 1968. ON November 22, 1968 Australian Co. made similar complaint in respect of the goods supplied in the month of May 1968. ON December 17, 1968 Roy Co. forwarded Australian Co.'s claim with regard to May consignments as to short weight and difference in quality to the Mills. Australian Co. preferred that their claims against Roy Co. and the matters in dispute between them may be decided by Bengal Chamber of Commerce and Industry. ON December 26, 1968 Roy Co. addressed a letter to the Registrar, Tribunal of Arbitration making a claim of Rs. 26,246.69 p. against the Mills and referred the dispute raised by Australian Co. to the arbitration of Bengal Chamber of Commerce and Industry stating that the said amount claimed by Australian Co. should be paid by the Mills. It may be noted here that the contract dated May 10. 1969 between Roy Co. and the Mills contained a clause for arbitration of the dispute between the parties by Bengal Chamber of Commerce and Industry Calcutta, whereas the contract between Roy Co. and Australian Co.. dated May 21, 1968 did not contain any arbitration clause. Bengal Chamber of Commerce and Industry declined to take up the matter in dispute between Roy Co. and Australian Co. unless Roy Co. and Australian Co. consented in writing to such arbitration by Bengal Chamber of Commerce and Industry. ON December 31, 1968 Australian Co. agreed to accept the award of arbitration by Bengal Chamber of Commerce and Industry and stated : "We will accept the award of arbitration pursuant to the claim which you are filing against the supplying mill provided the Chamber will accept the date 22nd November, 1968 i.e. the date of our letter to it when we submitted our claim in respect of 50 bales of wool packs shipped per s. s. State of Travancore-Cochin' as if on that date you had applied for arbitration and provided also that you pass to us for reply all questions which may arise during the arbitration." ON February 27, 1969, an agreement in writing was entered into between Australian Co. and Roy Co. for reference of their dispute to the arbitration of Bengal Chamber of Commerce and Industry. In March, 1969 Roy Co. claimed Rs. 25,796.69 p. against the Mills in Reference Case No. 312 of 1968 and Bengal Chamber of Commerce and Industry accepted November 22. 1968 as the date. The claim of Roy Co. against the Mills was made on the basis of the claim of Australian Co. against Roy Co. up to that date. In March, 1969 Australian Co, referred a statement of case for arbitration of Bengal Chamber of Commerce and Industry claiming Rupees 3,316.32 dollars, against Roy Co. The case was registered as case No. 81 of 1969. Thereafter on May 9, 1969 Award No. 78 of 1969 was passed in Roy Co.'s reference against the Mills whereby Rs. 1333.31 was awarded to Roy Co. against the Mills. ON July 29 1969 an award was made in Case No. 81 of 1969 whereby Roy Co. was directed to pay Rs. 18,862.88 p. to the Australian Co. The first petition of Roy Co. is directed against the award of the Tribunal of Arbitration of Bengal Chamber of Commerce and Industry in favour of Australian Co. The respondent No. 1 to this petition is Australian Co. The respondents Nos. 2 and 3 are two arbitrators who constituted the Tribunal of Arbitration. The difference in amount of damages awarded against Roy Co. by the Tribunal of Arbitration in the matter of their dispute with Australian Co. and the amount which was awarded in favour of Roy Co. in the matter of their dispute with the Mills have given rise to the two petitions for setting aside the two awards.
(3.) THE case of Roy Co is that the goods which the Mills supplied to Roy Co. were despatched by Roy Co. to the Australian Co. THE subject-matter of arbitration case between Roy Co. and the Mills namely. Case No. 312 of 1968 and the subject-matter of the arbitration case between Roy Co. and Australian Co. being case No. 81 of 1969 are in respect of the same goods but the Arbitrators awarded Rs. 18,862.88 p. against Roy Co in Case No. 81 of 1969 being Award No. 104 of 1969, while the arbitrators awarded Rs. 1.333.31 to Roy Co. against the Mills. THE grievance of Roy Co. is why should it be so? Why should Roy Co. get only Rs. 1,333.31 from the Mills while Roy Co. will have to pay Rs. 18.862.88 p. to Australian Co.? THE main grounds for setting aside the award for Rs. 18,862.88 p. in favour of Australian Co. are contained in paragraphs 22, 23 and 27 of the petition. I shall shortly indicate the grounds here.;