Ramesndra Mohan Datta, J. - (1.) THIS is an application under Section 34 of the Arbitration Act 1940 for stay of the suit filed by the respondent Bangur Brothers Limited against the petitioner Shree Luchminarain Jute Manufacturing Co. Ltd.
(2.) THE facts are that by exchange of a bought and a corresponding sold note by the broker a contract was entered into being contract dated February 2, 1967 whereby Bangur Brothers Limited purchased from the petitioner 40,000 bags of Heavy cees of the size, weight and description fully mentioned in the said contract. THE said contract inter alia provided the following arbitration clause :-- "(a) All matters, questions, disputes, differences and/or claims arising out of and/ or concerning and/or in connection with and/or in consequence of or relating to Transferable Specific Delivery Contracts, including the validity thereof whether or not the obligation of either or both parties under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to arbitration as provided for in the said bye-laws. (b) Arbitration of any claims and disputes whether admitted or not arising out of or relating to all Transferable Specific Delivery Contracts in raw jute and/or jute goods between members or between members and non-members, under the provisions of the said bye laws, shall be referred to the Tribunal of Arbitration of the Bengal Chamber of Commerce and Industry or of the Indian Chamber of Commerce, Calcutta, in accordance with the rules framed by the said Chamber, for the purpose of arbitration by its Tribunal from time to time." On or about February 3, 1967 the respondent asked the petitioner to mark the goods as "Cal/JP-2/6516-B/BB/102 Heavy Cees Bags 40" x 28" hd. 21/4 lbs. Director of Supply and Transport, N.E.F.A., Jorhat Airfield Rly. Station, Howrah KGS/GRMS-39233/39332." The goods were accordingly marked. The petition issued a Lorry Delivery Order being No. 67/95 dated 15th February. 1967 in respect of a lot of 100 bales of the said goods to the respondent. The said delivery order was issued on the Works Manager of the petitioner and is an admitted document. The said document contains full particulars of the markings of the goods as aforesaid. The respondent made full payment to the extent of Rs. 76,355.40 P., and a bill was issued by the petitioner showing such full payment of the price and the excise duty payable thereon. The goods were appropriated towards the contract and the property in the goods passed on to the respondent. The relative cheque was duly encashed by the petitioner.
(3.) ON the very same day, the said goods were inspected by the Officer-in-charge T.S.I.D. Hastings, Calcutta on behalf of the Director of Supply and Transport, NEFA. Jorhat Airfield (Assam), at the mill premises of the petitioner.;