- (1.) INTERESTING questions of some importance fall for determination in this appeal which arises out of the judgment passed by Ghosh, j. on the 18th of August, 1970 in a special case stated in the form of an award by the Arbitrators under the arbitration Act for the opinion of the court on the questions of law raised therein. The questions of law referred to this Court by the Tribunal of Arbitration are: " (1) Whether on a true construction of the contract dated the 29th June, 1965, and in the facts and circumstances of this cage bunge and Co. Ltd. , the Seller, is liable to pay the Anglo India Jute mills Co. Ltd. , the Buyer, compensation for non-delivery of the goods under the contract ? and (2) Whether on a true constructions of the case Bunge and Co. Ltd. , the Seller, is liable to refund to Anglo India Jute Mills Co Ltd. the Buyer, the sum of Rs. 92,640. 13 p. being the value of the goods under the contract ?" The relevant facts found by the arbitrators and on the basis of which the questions of law have been referred to this Court for its opinion have been set out in the award in the form of a special case dated the 31st of August, 1967 submitted by the Arbitrators. The facts found and stated by the Tribunal of Arbitration in its award are binding on this Court in this proceeding. The facts material for the purpose of the appeal including the facts recorded by the Tribunal in its award may be stated. By a contract in writing No J-21265/r dated June 1965 and entered into through the Brokers M/s g. Das (Jute and Gunny Ltd.) between Anglo India Jute Mills Co. Ltd. (hereinafter referred to as the Buyer), and Bunge and Co. Ltd. (hereinafter referred to as the Seller), the Buyer agreed to buy and the Seller agreed to sell 500 bales of "pakistan Cuttings NC" at the rate of Rs. 187/- per bale, each of 400 lbs. or 181. 44 Kgs. subject to the following terms and more fully specified in the said contract: (i) Delivery-Anglo India Jute mills (Lower Mills) ; (ii) Shipment or despatch during july, 1965, (iii) Payment-Cash on presentation in Calcutta of a full bet of shipping document and insurance cover. (iv) Transit Insurance - to be cared for by the Seller at contract rate plus 5% through buyers agency with M/s home Insurance do. Ltd. and premium to be deducted from seller's invoice. (v) Weight guaranteed at Buyers mills. The terms and conditions mentioned in the contract form as well as other terms and conditions applicable to the said contract are as per the terms and conditions of the Transferable Specific delivery Contract for Raw Jute of the east India Jute and Hessian Exchange limited, Calcutta and are subject to the bye-laws of the said Exchange for trading in Transferable Specific Delivery contract for Raw Jute in force for the time being.
(2.) THE Buyer forwarded to the seller a letter of Authority dated 28th of June, 1965 issued in favour of the seller by the Licensing authorities to enable them to import the said 500 bales against the buyer's import licence no. P/au/1271304. The letter of authority is in the following terms -"office of the Joint Chief Controller of Imports and Exports Calcutta. Letter of Authority subject to the conditions prescribed below. M/s Anglo India Jute Mills Co. Ltd. Calcutta holders of Licence No. P/au/1271304 dated 21. 6. 65, (hereinafter referred to as the said licence)are hereby authorised to permit M/s bunge and Co. Ltd. Calcutta (Indent or commission Agent/dealers) on their behalf to import goods and to open letter or letters of credit and make remittance of foreign exchange against the said licence to the extent of (value 500 bales), quantity five hundred bales only of the goods (description) (In bales of 180 Kgs. in each) Jute/mesta Cuttings/tangles/habijabi/mesta grade 'c' from Thiland as per the said licence. This letter of authority is issued subject to the following conditions :- (a) The person or concern in whose favour the letter of authority is issued will act only as an agent of the Licensee and the goods imported shall be the property of of the Licensee both at the time of clearance through the Customs and subsequent thereto. The Licensee will have to ensure that the goods on importation will be delivered to him and shall not be disposed of otherwise. The Licensee shall not cause or permit the holder of the letter of authority to dispose of the goods. (b) The holder of the letter of authority shall clearly indicate on all the relevant Customs documents including the triplicate copy of the customs Bill of entry, that the goods have been imported by him on behalf of the Licensee. The end, some it will be duly attested by the Customs Authorities. (c) The holder of the letter of authority shall not under any circumstances be entitled to any quota licence or quota certificate on the basis of such imports. The letters of authority is valid from the date of issue. Assistant Controller for Jt. Chief Controller of Imports and Exports" 28. 6. 65. SD/-
(3.) THE Seller established a letter of credit No. CAL/jute/65/128 dated the 23rd July, 1965 through the State bank of India and the Seller effected shipment of the 500 bales from Narayanganj per Pakistan River Steamer Ltd' s flat 'taplow with the stipulated time of shipment and obtained their bill of Leading No. NYJ/10 dated 29th july, 1965. The Buyer also arranged for the Transit Insurance through the buyer's Insurance Agents with the home Insurance Company Ltd.;