Weston, C.J. - (1.) THESE are two appeals under Clause 10 of the Letters Patent against a judgment of Falshaw J., given on 14-9-1948 in appeals preferred by the Governor General in Council against orders of a Subordinate Judge at Delhi making two awards rules of the Court and passing decrees in accordance therewith.
(2.) A preliminary point has been taken that these appeals are not competent. The argument is based upon Clause (2) of Section 39, Arbitration Act. Clause (1) provides that an appeal shall lie from certain orders passed under the Act. There is no dispute that the appeals before the learned single Judge were competent. Clause (2), Section 39, is as follows : "(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." It is claimed that although these are appeals under the Letters Patent, they are nevertheless second appeals and therefore are not competent. This point had arisen before in the Lahore High Court in --'Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hira Nand', reported in AIR 1948 Lah 84 (A) when a Bench of that Court held that an appeal of the same nature as the present is competent. The opinion expressed by Mahajan J., was in these words : "The expression 'second appeal' has seldom been used in respect to appeals which arise within this Court and which are very commonly described as 'inter-Court appeals'. I am, therefore, of the opinion that Sub-section (2) of section 39 does not take away the right that has been conferred on a litigant under Clause 10 of the Letters Patent of tnis Court. It seems to me that this sub-section only refers to two kinds of appeals that are mentioned in the Code of Civil Procedure, namely those a right to which is conferred by Section 100, Civil Procedure Code, and those the right to which is given by Sections 109 and 110 of the Code." This view, however, has not been followed by other High Courts. The most recent pronouncement is of the Bombay High Court in --'Madhavdas Devidas v. Vithaldas Vasudeodas', reported in AIR 1952 Bom 229 (B). The learned Judges there referred to the decision in -- 'Harmman Chamber of Commerce v. Jassa Ram (A)', which was followed by this High Court in --'Banwari Lal v. Hindu College, Delhi', AIR 1949 EP 165 (C), and expressly dissented from that opinion. The learned Judges also referred to the view expressed by the Madras High Court in -' Radhakrishnamurthy v. Ethirajulu Chetty and Co.', AIR 1945 Mad 184 (D) also contrary to that given in -- 'Hanuman Chamber of Commerce (A)' and --'Banwari Lal's cases (C)'. It is very desirable that there should be a concurrence of judicial opinion on an important point such as this. I do not mean to say that this High Court must follow other High Courts' opinion against its conscience, but in the present state of the authorites, I think it is proper that the question should be reexamined by this Court and finally decided and I consider, therefore, that this matter should go to a Full Bench. The decision seems to turn upon whether the expression "second appeal" appearing in Section 39(2), Arbitration Act, is to be given a technical meaning as an appeal covered by Section 100, Civil P. C. I myself do not understand the necessity for giving to the expression "second appeal" such technical meaning. The words "second appeal" do not in fact appear in Section 100 at all although they form a marginal note to the section. The words "second appeal" do appear in S, 101 and certain following sections. There can be no doubt that the Letters Patent of this High Court is to be regarded as general law as contrasted with the special law of Section 39, Arbitration Act, and the general right of appeal given by Clause 10, Letters Patent, must give way if by Section 39 it is provided that no such appeal lies. The purpose of Section 39 is very obvious. It is consistent with the general scheme of the Arbitration Act, namely to minimize the amount of proceedings in Court and facilitate quick settlement of disputes, which is the primary justification for arbitration procedure. It is not necessary, however, for me to attempt any further opinion on the matter. It will be dealt with in due course by a Full Bench.
(3.) AS the case has been argued before us exhaustively on its merits, I think we should give our decision. In my opinion, if the appeals are competent, they should be allowed. If the Pull Bench decides that the appeals are not competent, then, of course, they will have to be dismissed. I proceed now to give my reasons why the appeals, if, competent, should be allowed. The facts of the matters are as follows. One award was in favour of the Sunshine Metal Works of Delhi and was for an amount of Rs. 54,000/-and the other was in favour of Mohindra Supply Company for an amount of Rs. 47,250/-. The awards arose out of claims for damages preferred by the two firms in respect of contracts entered into by them with the Supply Department of the Government of India for supplying what is called solidified fuel. In the case of the Mohindra Supply Company the contract also provided for the supply of Tommy Cookers but no dispute in regard to this item of supply arose. The contract in the case of the Sunshine Metal Works was executed on 3-5-1943 and in the ease of Mohindra Supply Company on 14-8-1943, and in each instance 1,00,000 lb3. of solidified fuel were contracted to be supplied by the firm. Each contract was in writing and was made subject to what is called the General Conditions of Contract contained in W.S.B. 133. The contracts themselves, however, contained a number of clauses. Taking that of Sunshine Metal Works, it is headed by description of the commodity described as solidified fuel, units of one pound, quantity to be supplied being 1,00,000 lbs., and the price to be paid is given as RSection 1/2/-per pound. Then follows a paragraph numbered 1 which reads as follows: "1. Particulars governing supply: (a) Specification: Conforming to specification No. R.I.A.S.C. 85, copy already with you. (b) Maker's name or brand:-- Own make. (c) Country of origin:-- India." Then follows paragraph 2 headed "Delivery Sche dule and Despatch Instructions' and under this line appears the Roman figure II: "II. Date of Delivery:-- (Date to be tendered) Item No. Unit Quantity Day Month year 2 lb. 1,00,000 30 6 43 "(one lakh) or earlier if possible." Then follows Roman figure III: III. Packing and marking: "The Store is required to be packed in new or well-cleaned hermetically sealed four gallon tins of the Kerosene oil type and each tin shall contain 30 lbs. nett. Two such tins shall be repacked in a strong, trade wooden case iron-hooped, steel strapped or wired. The packing shall be sufficiently strong to withstand rough handling during transit by road, rail or sea, and shall conform to the requirements of the Railway and pamphlet No. 14." Then follows Roman figure IV headed "Place of Delivery" with certain terms of delivery which are not material. Then follows Roman figure V headed "Inspection" and then Roman figure VI dealing with payment. Then follow certain other conditions which also are not material. This document signed "for the Chief Controller of purchase (Supply)" is on a typed sheet of paper. On a similar typed sheet of paper is the contract of Mohindra Supply Company and the only difference which need be noticed between the two is that in paragraph 2 again headed "Delivery Schedule and Despatch Instructions", the Roman figure under this paragraph begins with "I" and the words "Packing and Marking appear under the figure "II". ;