Mallick, J. - (1.) THIS is an application for leave to revoke a submission. The language of paragraph (a) of the notice of motion is not really happy and Mr. Deb rightly pointed out that the only order that can be passed is granting leave to the petitioner to revoke the submission.
(2.) THE parties hereto entered into a contract whereby the petitioner was to manufacture and supply packing boxes to the respondent at a particular price. THE respondent was under obligation to arrange for the release of timber and from materials required for the fabrication of the packing boxes. THE contract is evidenced by the acceptance of tender as is usual in the case of Government contracts and it contains the usual condition to be found in government contracts in what is known as form No. WSB133. THE obligation of the Government to release and supply timber and iron materials required for the purpose of fabrication of boxes is evidenced by a letter dated September 6, 1944. THE schedule to the acceptance of tender expressly states that the acceptance confirms the said letter dated September 6, 1944. THE contract contains an arbitration clause. Pursuant to the above contract the Government released and supplied' timber and iron materials required for the fabrication of packing boxes and the petitioner manufactured and delivered to the Government the contract goods. The petitioner was fully paid the price of the goods in terms of the contract even though the Government, in its turn, was not paid for the timber and iron materials supplied from the manufacture of the goods. The Government subsequently made a demand on the petitioner to pay the value of the timber and iron materials supplied as aforesaid, A dispute thereupon arose between the parties for non-payment whereupon the Government invoked the arbitration clause in the contract and made a reference. Two arbitrators were appointed one by each party. The petitioner appointed Mr. M.L. Khemka, an experienced attorney of this Court', whereas the Government appointed Mr. Sri Gopal Singh an experienced judicial officer holding the rank of District Judge, in the arbitration proceedings the Government filed its state of facts and the petitioner its counter state of facts. Thereafter, by leave of the arbitrators, the Government filed an additional state of facts supplementing their original case. The petitioner also filed another counter state of facts in answer to the additional state of facts filed.
(3.) TWO points were made out by the Government in the additional state of facts and two paragraphs of this additional state of facts have been referred to by Mr. Deb, learned counsel appearing for the petitioner before me These paragraphs are paragraphs 4 and 8 of the additional state of facts filed by the Government which is annexure D to the petition: "Para. 4 -- At all material times it was understood by and between the parties to the said contract that the respondent would pay the price and the transport charges of the said timber and iron materials the release whereof would be arranged by the claimant from appropriate sources. The issue supply and distribution of the said materials was at all relevant times controlled." "Para. 8. -- In any event, the claimant lawfully delivered the said materials to the respondent not intending to do so gratuitously and the respondent enjoyed the benefit thereof and is now bound to make compensation to the claimant in respect of such deliveries. The claimant assesses such compensation to be Rs. 1,30,844/- on a fair and reasonable basis.";