Chakravartti, CJ. - (1.) THIS is an appeal from an order of P. B. Mukharji J., dated the 14th June, 1957, dismissing the appellant's application for setting aside an award made against it by the Bengal Chamber of Commerce and Industry. The learned Judge delivered no judgment, but it appears from the minutes that he relied upon an earlier judgment of his own, delivered in Award Case No. 27 of 1956. We have had that judgment brought up before us and have acquainted ourselves with the reasons which influenced the learned Judge in coming to the decision arrived at by him.
(2.) THE appellant was the seller under a contract dated the 7th of September, 1955, entered into with the respondent for the sale of 750 bales of jute cuttings or Pakistan. Jute cuttings are raw jute. THE delivery of the goods was spread out over three months, 250 bales being deliverable in October, 1955 and equal quantities in November and December following. THE appellant did not deliver any goods and pleaded as an excuse for the nonperformance of the contract that interference by the Government of East Pakistan bad made performance impossible. THE respondent would not listen to that plea and in due course it submitted the dispute to the arbitration of the Bengal Chamber of Commerce and Industry in accordance with the arbitration agreement contained in the contract. THE appellant took part in the proceedings before the arbitrators and the only case it set up was a case on the merits. Its defence did not succeed and the Chamber made an award against it for a sum of Rs. 41,250/- which was the very sum claimed by the respondent, together with interest at a certain rate. After the appellant had been served with a notice under Section 14(2) of the Arbitration Act that the award had been filed in this Court, it made the application out of which the present appeal arises,. The principal ground on which it attacked the award was that the contract in question was wholly void in view of the provisions of the Forward Contracts (Regulation) Act of 1952. The illegality of the contract was said to have been discovered after the proceedings before the arbitrators had been over.
(3.) THE case for the appellant, more particularly put, was that the Forward Contracts (Regulation) Act of 1952 had been made applicable to raw jute before the contract in question had been entered into and the contract being a transferable specific delivery contract, as defined in that Act, it was wholly void, THE respondent's reply was that the contract was not hit by the Act, because it was a non-transferable specific delivery contract and that, in any event, the appellant, having entered into the contract and participated in the proceedings before the arbitrators with full knowledge of the provisions of the Act, but without raising any contentions thereunder, could not now be heard to say that the contract was unenforceable in law. THE learned Judge appears to have accepted the latter contention of the respondent. THE only part of the judgment in the earlier case which applies to the present case proceeds on the footing that, prima facie, the contract in the present case was a non-transferable one and that if it was really transferable, the point ought to have been taken before the arbitrators and if it was taken, the relevant facts could have been investigated and properly ascertained. THE prima facie appearance of the contract being that it was non-transferable and that appearance not having been removed by evidence led before the forum which might have investigated the matter, no basis had, according to the learned judge, been laid for impugning the contract on the ground that it offended against the Forward Contracts (Regulation) Act. THE question raised by the appellant was regarded by the learned Judge was a mixed question of law and fact and therefore, not a question which could be taken for the first time in an application for setting aside the award.;