E. D. SASSOON AND COMPANY Vs. RAMDUTT RAMKISSEN DAS

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, in its civil appellate jurisdiction, reversing a decree of the same Court in its ordinary original civil jurisdiction.

(2.) THE appellants and respondents are merchants in Calcutta. By eleven contracts in writing, bearing various dates between September, 1913, and December, 1914, the appellants agreed to buy from the respondents a number of bales of jute of certain specified standards of quality. The contracts were all in a form approved by the Calcutta Baled Jute Trade Association, most of them containing what is called a "home guarantee" (that is to say, a guarantee as to quality, condition and weight on terms contained in the London Jute Association contract), and all of them containing an arbitration clause in the following terms :

(3.) THE jute, when delivered under the contracts, proved not to be of the specified quality, and a considerable part of it was " invoiced back " to the appellants and resold by them at lower prices, with the result that the appellants claimed to have suffered damages to the amount of Rs. 83,623, and demanded payment of this amount from the respondents. The demand having been refused, the appellants in July, 1915, appointed Mr. G.C. Allan to act as their arbitrator in the matter in accordance with the contracts, and the respondents after some delay--namely, in September, 1915--appointed Babu Sarat Chander Gossain to act as arbitrator on their behalf. Mr. Allan endeavoured to arrange a meeting with Babu Gossain with a view to entering on the reference, but without success; and ultimately, on March 7, 1916, Mr. Allan retired from the reference. Thereupon, the appellants appointed Mr. S.H. Singleton to be an arbitrator in his place, but Mr. Singleton was equally unsuccessful in his efforts to get Babu Gossain to meet him; and after many excuses, the latter on June 30, 1916, withdrew from the matter. On July 27, 1916, the appellants wrote to the respondents a letter referring to the retirement of Babu Sarat Chander Gossain and adding :