ABDUR RAHIM AFROZE Vs. B. C. AGA AND CO. LTD.

JUDGEMENT

(1.) This appeal by special leave is from a judgment of the erstwhile High Court of East Pakistan in First Appeal No. 132 of 1965 affirming the judgment and decree passed by the Subordinate Judge, First Court, Chittagong in other suit No. 17 of 1958 in terms of an award.

(2.) The circumstances leading to the aforesaid suit are as follows B. C. Aga & Co. (hereinafter called the respondent) while carrying on business under the name and style L. D. Seymore & Co. (Pak) Ltd. was requested by the appellant who was at the relevant time carrying on business under the name and style Rahim Afroze & Co. to import two consignments of cotton piece goods from Singapore. Accordingly the respondent who were acting as agent of Messrs Choonilal & Co. of Singapore ordered for import of cotton piece goods under Import Order Nos. 12 and 13 , dated 15-11-51 and 31.11.51 respectively for the appellant. The latter was, therefore, asked to open a letter of Credit. After arrival of the aforesaid goods at Chittagong Port, Sight draft was presented by the respondent to the appellant for payment of the price of the goods but the price having gone down, the appellant refused to honour the sight draft. As a result of their refusal to honour the sight draft the respondent was forced to send the goods to Karachi sold them there on behalf of the appellant. The respondent claimed that they had suffer loss of Taka 26,693/ and demanded of appellant to make up the loss. The appellant having failed to make good the loss, the respondent proposed for arbitration as provided in the contracts signed by them. Thereafter respondent and appellant nominated arbitrators on 12.7.54 and 20.7.54 respectively. The arbitrators having failed to come to an unanimous decision even within a extended time appointed an umpire on 6.8.56. The umpire, on the disagreement of the arbitrators, gave an award favour of the respondent for a sum of Tk. 19,565/8/-. This award was filed in court at the respondent's request for having made it a rule of the court. The appellant contested the award and sought to have it set but a decree was ultimately passed in to of the award. On appeal, a Division Bench of the High Court affirmed the decree passed by the trial court.

(3.) Special leave to appeal was granted to consider as to whether the appointment of the umpire made beyond one month from the latest date of the appointment of the arbitrators was illegal in view of Para 2 of the First Schedule to the Arbitration Act when reference was to an even number of arbitrators and whether the award made by the said umpire was wholly without jurisdiction and void.