KAJARIA TRADERS INDIA LTD Vs. FOREIGN IMPORT AND EXPORT ASSOCIATION

JUDGEMENT

(1.) THIS matter has come up before me under Clause 36 of the Letters Patent for the determination of the questions following:--"whether in view of the provisions contained in Section 69 of the Indian Partnership Act, 1932, the present petition is maintainable and what provisions should be made for the costs of the parties to the Petition. " there has been a difference of opinion between Mr. Justice Mudholkar and Mr. Justice Naik as regards the answers to be given to the aforesaid questions.

(2.) I shall briefly state the facts giving rise to the aforesaid questions. The Petitioners are a Company registered under the Indian Companies Act, VII of 1913. The Petitioners carry on business as dealers in Manganese Ore. In or about July 1955, the Petitioners agreed to sell to Messrs. Phillip Brothers India Ltd. , an American Company, 10,000 tons of manganese ore of 16/48 grade for shipment abroad during the period January to June 1956. The terms of shipment provided that 5,000 tons of manganese ore was to be shipped between January to March 1956 and the balance of 5,000 tons of manganese ore was to be shipped before 30th June 1956. In connection with the supply of these goods a contract was entered into between the petitioners and one Jagdish Chandra Gupta, who carried on business in the firm name and style of Messrs. Foreign Import and Export Association, the respondents before me. The terms of the agreement between them have been reduced to writing. The said writing is annexed as Ex. A to the Petition. Clauses 1, 2, 3, and 4 of the said agreement provide as under:-

(3.) TWO questions arise for determination; (1) whether the petition is one to enforce a right arising from a contract and (2) if so whether the petition is a proceeding referred to in Section 69 (3 ).