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Krishan Chander Rameshchander and Bros. Vs. Sohan Lal - Court Judgment

LegalCrystal Citation
SubjectCriminal;Arbitration
CourtDelhi High Court
Decided On
Case NumberSuit No. 134A of 1980, Interim Application No. 2725 and 2809 of 1982 and Criminal Original Appeal No
Judge
Reported in23(1983)DLT9
ActsArbitration Act, 1940 - Sections 2
AppellantKrishan Chander Rameshchander and Bros.
RespondentSohan Lal
Advocates: O.N. Vohra and; Vijay Panjwani, Advs
Cases ReferredT. W. Thomas & Co. Ltd. v. Portsea Steamship Company Limited
Excerpt:
arbitration act, 1940--section 2(a)--sale goods--bills issued by seller contained a clause for reference of disputes to delhi mercantile association--whether bills constitute arbitration agreement in writing within the meaning of section 2(a) of arbitration act even though bills are not signed by purchaser ? whether principle of incorporation applies ? ; the respondent purchased cloth from the petitioner on credit. in the bills in respect of the sale of goods, it was stipulated that the purchase was subject to the rules of delhi hindustani mercantile association delhi. rule 36(5) of the aforesaid rules and regulations provided that the association shall determine disputes arising between members inter se or between a member and a non-member or with any other person. rule 47 provided that.....g.r. luthra, j.(1) m/s. krishan chander ramesh chander & bros., 571, katra asharfi, chandni chowk, delhi (hereinafter referred to as the petitioner) brought the present petition, registered as suit no. 134-a/80, under section 20 of the arbitration act for referring the disputes between the said firm and sohan lal (hereinafter referred to as the respondent) to the arbitration of an arbitrator to be appointed by the delhi hindustani mercantile associate (registered), chandni chowk, delhi (hereinafter referred to as the association).(2) the petitioner is a partnership firm and krishan chander is one of the partners. according to the petitioner, the respondent is a sole proprietor of m/s. r. k. traders as well as m/s. amir chand sohan lal. it is alleged by the petitioner that the respondent.....
Judgment:

G.R. Luthra, J.

(1) M/S. Krishan Chander Ramesh Chander & Bros., 571, Katra Asharfi, Chandni Chowk, Delhi (hereinafter referred to as the petitioner) brought the present petition, registered as Suit No. 134-A/80, under Section 20 of the Arbitration Act for referring the disputes between the Said firm and Sohan Lal (hereinafter referred to as the respondent) to the arbitration of an arbitrator to be appointed by the Delhi Hindustani Mercantile Associate (registered), Chandni Chowk, Delhi (hereinafter referred to as the Association).

(2) The petitioner is a partnership firm and Krishan Chander is one of the partners. According to the petitioner, the respondent is a sole proprietor of M/s. R. K. Traders as well as M/s. Amir Chand Sohan Lal. It is alleged by the petitioner that the respondent had been carrying on business of cloth merchant at Bazaza Bazar, Meerut city and as proprietor of M/s. R. K. Traders purchased cloth on credit and that huge amounts (as mentioned in the petition) was still due from the respondent. It is further alleged that in the bills, on the basis of which the respondent purchased goods, it was stipulated that the purchase was subject to the rules of the Association which, inter alia, require that in case of disputes, the same shall be decided by a person appointed by the Association as arbitrator, and that, thereforee, as the respondent was disputing his liability, this dispute between the parties should be referred to the arbitration of the Association.

(3) Respondent contested the petition. He denied that he was carrying on -business under the name M[s. R. K. Traders. According to him, the said .business belonged to Harish Kumar son of Parma Nand. He also denied that there was any agreement between the parties to refer the disputes to the Association. He further denied that the petitioner firm was a partnership firm or was registered under the Indian Partnership Act.

(4) Following issues were framed on 16th September, 1980 : 1. Is the petitioner a registered partnership firm and has the petition been brought by an authorised person OPP. 2. Was there an agreement to refer .the disputes to arbitration as alleged by the petitioner Opp 3. Is- the respondent Sohan Lal not the proprietor of R. K. Traders? Opr 4. Relief.

(5) Afterwards the respondent filed an application to the effect that onus of proof of issue No. 3 was wrongly placed on him and that, thereforee, the onus of proving that he was the sole proprietor of M]s. R. K. Traders should be on the petitioner. By order dated 11th February, 1982 that application of the respondent was accepted and issue No. 3 was re-framed as under :

'WASthe respondent Shri Sohan Lal at the relevant time proprietor of M[s. R. K. Traders ?'

ISSUE NO. 1

(6) The petitioner has placed on record a certified copy ' of an entry in the Register of Firms maintained under Section 69 of the Indian Partnership Act. That shows that on 29th October, 1979 the petitioner was registered as partnership firm consisting of 7 partners out of whom one was Krishan Chander. thereforee, the present petition is maintainable on behalf of the firm and Krishan Chander who brought the petition was competent to do so. The issue is thereforee, decided in favor of the petitioner. Issue NO. 3

(7) Vide order dated September 8, 1981 it was directed that in the first instance, subject to proviso to section 33 of the Arbitration Act, the evidence of the parties in the present petition would be taken on affidavits and that in case it was found necessary, further evidence could also be taken. As will be clear from what is being discussed hereinafter it stands conclusively proved that Sohan Lal, at the relevant time, was the proprietor of the business known as M/s. R. K. Traders, Krishan Chander has filed affidavits dated 28th September, 1981 and 8th January, 1982 supporting the entire case of the petitioner. He also relied upon the account books of the petitioner, copies of which have been placed on record. According to him. the account books were kept in the regular course of business. That affidavit is supported by an affidavit dated 4th December, 1981 of Daya Nand who stated that he was working with the petitioner firm as Munim since 1969 and that Sohan Lal, respondent used to purchase cloth from the petitioner in the name of M/s. R. K. Traders and that the prepared the bills of some purchases. He has given particulars of the bills in the affidavit. He added that Sohan Lal also used to purchase cloth in the name of M/s. Amirchand Sohan Lal, that initially he got some bills of such purchases changed from M/s. Amirchand Sohan Lal to M/s. R. K. Traders. Particulars of those bills are also mentioned in his affidavit. He also gave particulars of some bills which were originally prepared in the name. of M/s. R. K. Traders but thereafter were changed in the name of M/s. Amirchand Sohan Lal.

(8) The case of the petitioner in this respect also finds support from the affidavit of Pawan Kumar Mittal who is a partner of M/s. Vastralaya, Abu Lane. Meerut. He deposed that he had business dealings with M/s. R.K. Traders, Bazaza Bazar, Meerut, that his firm purchased some cloth from M/s. R. K. Traders, vide bills, photo copies whereof were K-l and K-2, that he paid the amounts of those bills against receipts to Sohan Lal. He also placed photo copy of the receipt Ex. K-3.

(9) Laxmi Narain in his affidavit has stated that he is working with M/s. Vijay Laxmi Transport Co. 4112, Naya Bazar, Delhi. He deposed that some goods were sent by the petitioner through the said Transport Company to the respondent and that the said goods were delivered to the respondent of M/s. R. K. Traders through cartman Sudarshan. He has given particulars of the 9 goods receipts vide which goods were booked for delivery to Sohan Lal. His statement also indicates that Sohan Lal was carrying on the business under the name M]s. R. K. Traders.

(10) S. K. Sharma, in his affidavit dated 2nd December, 1981, deposed that he had been working with M/s. Jagatjit Cotton Textile Mills Ltd., Phagwara since 1965, that Sohan Lal of Meerut used to come to the said mills for the purchase of cloth on behalf of M/s. R. K. Traders, as sole proprietor and that on one occasion he selected some goods (described in the affidavit) and that the said goods were actually dispatched to Meerut through Amritsar Transport Co. vide Bill No. Tc 957 dated 29-3-1979 as, per his instructions.

(11) The statements of Pawan Kumar, Laxmi Narain and S. K. Sharma, who were obviously independent and natural witnesses are very important. They deposed on the basis of dealings with Sohan Lal. It is very important to note that Sohan Lal never stated in his affidavits that he did not have any dealing with them. In paras 28 to 32 of a reply dated February 26, 1982 (supported by an affidavit of an even date) he merely described the documents relied upon by S. K. Sharma and Laxmi Narain as fabricated. In para 32 of the said reply he stated that he would file separate replies to affidavits of Pawan Kumar, Daya Nand, S. K. Sharma and M. L. Wahi. But he never filed any such affidavit.

(12) Further, Sohan Lal has been making payments of the dues of M/s. R. K. Traders through bank drafts. Shri M. L. Wahi, Manager, Punjab National Bank, Kaisar Ganj, Meerut in his affidavit dated 5th January, 1982 stated that he was working with Punjab National Bank, Kaisar Ganj, Meerut with effect from March, 1981 as manager and that the drafts, details of which were given in his affidavit, were purchased by Sohan Lal from Punjab National Bank, Kaisar Ganj, Meerut. The particulars of the drafts which are given in the affidavit of Shri M. L. Wahi are such as show that Sohan Lal was working for M[s. R. K. Traders and that the said payments were made to M[s. Krishan Chander Ramesh Chander & Bros., the petitioner. There are as many as 7 bank drafts.

(13) The conduct of Sohan Lal and Harish Chander who, according to the former, is the proprietor of M/s. R. K. Traders, before a Commissioner appointed by this court is very important. Shri H. C. Sukhija, Advocate was appointed as Commissioner. As the report of Shri Sukhija shows, he went to Meerut on 15th March. 1980 accompanied by two partners of the petitioner firm. That report reads that the shop of M/s. R. K. Traders was identified by a partner and an employee of the petitioner firm, that when they reached the shop, one youngman who disclosed his name as Harish and later on as Harish Kumar was present at the spot, that he immediately went away for bringing Sohan Lal but came back and stated that Sohan Lal had not met him. The repart further says that at about 4.30 p.m. preparation of the inventory was commenced with the help of the partners and employee of the petitioner firm, that Sohan Lal respondent along with some other persons reached the spot, that Sohan Lal showed one rent receipt in respect of the shop which was in his personal name and that the inventory of the goods, as per the orders of the court, was completed at 7 p.m. It is apparent from the above proceedings that Harish Kumar had no concern with the shop or any business being carried in the same. .Otherwise, he would have told immediately that he was owner and that Sohan Lal had no concern with the same. Further, the conduct of Sohan Lal shows that he had all interest in the business of the shop and that is why he came up accompanied by other persons. Further he also showed rent receipt regarding the shoo. The report of the local commissioner further shows that Sohan Lal was represented by an advocate Shri Charanjit Anand who raised certain objections in respect of the proceedings and gave a letter on behalf of Sohan Lal. Had Sohan Lal no concern, he would not have taken so such interest. Further, had Harish Kumar any interest in M/s. R. K. Traders, he would not have been so casual as to take no part. in the proceedings. He merely informed Sohan Lal. This much interest of informing. Sohan Lal and his presence at the shop of Sohan Lal can be on account of the fact that he admittedly happens to be a relation of the former.

(14) In para 16 of his reply dated 26th February, 1982 (which is supported by an affidavit), Sohan Lal gave an Explanationn as to how he might have got certain bank drafts prepared on behalf of M!s. R. K. Traders from Punjab National Bank, Kaisar Ganj, Meerut or Laxmi Commercial Bank, Khair Nagar, Meerut or Allahabad Bank, Khair Nagar. Meerut. He states that Harish Kumar is his relation, that it is a normal practice that because of convenience sometime money is given to some one to get such bank drafts prepared, that the former has his own work in the bank for which purpose former is to go there, that some times Harish Kumar gave money to get the bank drafts prepared in the name of M/s. R. K. Traders and that it was because of the convenience and facility that the former took money from the latter and got the bank drafts prepared. It may be recalled, that as mentioned already, Shri M. L. Wahi manager of Punjab National Bank, Kaisar Ganj. Meerut stated in his affidavit dated 5th January, 1982 that seven bank drafts, details of which have given by him, were purchased by Sohan Lal on behalf of M/s. R. K. Traders. It is on account of the aforesaid affidavit as well as getting of bank drafts prepared on behalf of M/s. R. K. Traders from other banks that the aforesaid Explanationn was given by Sohan Lal but obviously the Explanationn is not convincing. It can be that sometimes a person may get prepared a bank draft for the convenience and facility of another, but there cannot be any continuous practice in that respect. No doubt, Harish Kumar is relation of Sohan Lal and the latter could have worked for the former in respect of getting the bank drafts prepared, yet that can be only on some stray occasions and not that he was doing So with respect to different banks continuously on behalf of M/s. R. K. Traders. The irresistible conclusion, specially coupled with the circumstances and evidence already mentioned, is that Sohan Lal is, was and still remains, to be proprietor of M/s. R. K. Traders.

(15) In his reply dated 26th February, 1982 Sohan Lal stated that Harish Kumar filed income-tax returns before the Income-tax Officer, Meerut as sole proprietor of M/s. R. K. Traders, that the latter also obtained a certificate from the authorities under the Shops & Establishments Registration Act to the effect that the latter was proprietor of M/s. R. K. Traders that the aforesaid documentary dence was in possession .and power of Harish Kumar, that if the former were allowed to lead oral evidence he could produce and examine the latter as a witness with reference to the afor.esaid documents.Shri Ram Panjwani, counsel for Sohan Lal, laid great stress that the present case could be disposed of on the basis of oral evidence only and that Sohan Lal should be given opportunity to produce the same.

(16) To my mind, it is with a desire to drag on and prolong the litigation that Sohan Lal wants to produce oral evidence. Admittedly, Harish Kumar is related to him. Further, as he says, Harish Kumar handed over 8 goods receipts in respect of transporting, through Vijay Laxmi Transport Company, Naya Bazar, Delhi, cloth sent by the petitioner firm. The photostate copies of those goods receipts have been placed on record and the same are being mentioned hereinafter. If Harish Kumar as a good relation could hand over those 8 goods receipts, he could have very well handed over copies of the returns filed in the income-tax department and the certificates issued by the Shops & Establishment authorities. He could even oblige Sohan Lal by way of filing his affidavit that actually he is the owner of the business known as M/s. R. K. Traders.

(17) Now I take up the matter of 8 photostat copies of the goods receipts mentioned above. On the back of those photostat copies there is a photo copy of an endorsement reading 'please deliver to Sudarshan. For R. K. Traders. Harish Kumar Proprietor'. The intention is to show that it was Harish Kumar who was the proprietor of M[s. R. K. Traders and who had made endorsement for receiving the goods sent by the petitioner firm.

(18) It is obvious that the aforesaid photo copies of the goods receipts are fabricated. It is hardly understandable as to how the said goods receipts still remained with Harish Kumar when he had taken delivery of the goods from Vijay Laxmi Transport Company. It is a matter of common knowledge that the goods receipt m respect of which the delivery of the goods is taken, remains with the transport company concerned. There is no Explanationn in the affidavit of Sohan Lal as to how those goods receipts came into possession of Harish Kumar. thereforee, the photostat copies of the endorsement aforesaid are of no value.

(19) In view of the foregoing reasons I decide the issue in favor of the petitioner. Issue NO. 2

(20) Reliance of the petitioner is on the photostat copies of 34 bills in respect of dispatch of cloth by the petitioner to M/s. R. K. Traders. There .is a writing in print under every one of these bills that the goods by the petitioner firm were being sent under the rules and regulations of the Delhi Hindusitani Mercantile Association. A printed book containing the rules and regulations of the said Association (1973 edition) has been placed on record as Annexure G by the petitioner while a cyclostyled amendment of the same has been marked as Annexure G. Relying upon the Annexures F and G and the clause aforesaid printed in Hindi on every one of the bills, counsel for the petitioner stated that as the rules and regulations of the Association provided for arbitration in case of disputes arising between the parties, the present dispute be referred to the said Association.

(21) Rule 36(5) of the aforesaid rules and regulations of the Association (Annexures F and G) provides that the Association shall herein determine disputes arising between members inter se or between a member and nonmember or any other person. Rule 47 provides that disputes shall be settled by an arbitrator to be appointed by the Association and the decision of the arbitrator shall be binding on the parties. In a similar, case, between these very parties in Suit No. 123-A/80, Avadh Behari, J. of this Court held that the disputes must be referred to an arbitrator to be appointed by the Association. That judgment is reported as Mjs. Krishan Chander Ramesh Chander and Bros. v. Sohan Lal, : AIR1982Delhi122 . Following observations were made in para 11 of the judgment :

'ASboth the sale contract and the rules of the Association are in writing, there exists a valid arbitration agreement in terms of S. 2(a.). The parties notwithstanding the fact that the buyer is a non-member, have by their voluntary act of making their contract subject to the rules and regulations of the Association incorporated the arbitration clause into their contract and thereby entered into an arbitration agreement. It is by reason of such voluntary act of the parties and not by independent force of the rules and regulations that the agreement has come into being and is thereforee binding on the parties'. (See Arthur and Co. v. S. K. and Co., : AIR1972Bom345 (2) per Mody and Kamat JJ).'

(22) The net result was that in that case the matter was referred to the Association for arbitration and award. The aforesaid authority is binding and is exactly applicable to the facts of the present case.

(23) The learned counsel for the respondent. Sohan Lal. however, contended that the view taken by Avadh Behari. J. was wrong, perhaps for want of proper arguments and that, thereforee, a reference be made for constituting a larger Bench for going into the matter. He relied upon (1971) All E. R. 394(3). In that case a vessel was let out under a voyage charterparty for transportation of maize. Clause 39 of the charterparty provided that

'ALLdisputes from time to time arising out of this contract should be referred to arbitration in London and that any claim must be made within 3 months of the final dispatch.'

The cargo having been shipped on board the vessel by the shippers, the masters on behalf of the ship owners, signed and issued to the shippers 4 bills of lading covering the cargo. Each bill was in the form required by the charter- party and stated that, 'all the terms and conditions and exceptions of Charter Party, including the negligence clause are incorporated herewith.' The buyers paid for the maize and took up the bills of lading. They then sold part of the cargo to a French Company and endorsed some of the bills to them. Disputes arose. The buyers as charters and the French company as holders of bill of lading claimed arbitration. It was held that disputes could not be referred to arbitration because although it was stated in the bills of lading that all the conditions in the charter party stood incorporated into the bills of lading, yet the arbitration clause could not be said to have been incorporated in the bills of lading by general words of incorporation because the arbitration clause contained in the charter party made obligatory for reference of such disputes to arbitration as referred to charter party itself and not to the bills of lading. The aforesaid incorporation was taken from the words 'this charter party contract' which did not include the bill of lading contract. Counsel for the respondent contended that as in the aforesaid case despite the words in the bills of lading that all the conditions of the charter party would stand included, the arbitration clause did not stand incorporated in the bill of lading, in the similar manner, the arbitration clause in the rules and regulations of the Association could not stand incorporated in the alleged contract of sale of cloth by the petitioner to the respondent. Learned counsel also relied upon a judgment of Privy Council in T. W. Thomas & Co. Ltd. v. Portsea Steamship Company Limited, (1912) Ac 1. The facts in that case were similar to the facts of the case cited above, The same was the view expressed and it was held that the dispute on the basis of bill of lading could not be referred to arbitration because the arbitration clause of charter party dad not stand incorporated in the bill of lading.

(24) Counsel for the respondent contended that as the clause in the charter party could not be deemed to have been incorporated into the bill of lading, similarly the principle of incorporation could not be extended to the rules and regulations of the Association.

(25) But the aforesaid authorities are distinguishable on facts. In that case, the arbitration clause in the charter party referred to the disputes arising out of the same. The disputes relating to a charter party cannot be called as disputes relating to bill of lading. thereforee, the arbitration clause in charter party could not be deemed to have been incorporated in the bill of lading and it was so held in both the aforesaid authorities. Here the bills regarding purchase of cloth by the respondent state that the purchase was subject to the rules and regulations of the Association which clearly mean that disputes regarding these bills will be referred to the arbitration as mentioned in the rules and regulations of the Association. Obviously, there was incorporation of the arbitration clause in the bills and it was rightly held so by my brother Avadh Behari, J. in the case between the parties referred to already.

(26) Reliance of the counsel for the respondent was also on a judgment of Court of Appeal in London Sack & Png, Co. Ltd., v. Dixen & Lugton Ltd., (1943) 2 All. E. R. 763. The dispute was in respect of quality of goods. There was no arbitration clause in the written contract Nevertheless, the provisions, of Arbitration Act, 1889 were invoked, on the ground that both the parties were members of United Kingdom Jute Goods Association Limited, the rules of which were binding on both the parties, that there was a provision that all the disputes arising out of transactions connected with the trade shall be referred to arbitration, that. as the transaction beween the parties in that case related to jute trade, in view of the aforesaid rule, disputes could be got decided by way of submission to arbitration. It was, however, held that there was no arbitration agreement even by incorporation and that, thereforee, reference could not be made to arbitration. Learned counsel for the respondent in the present case, contended that inspire of the fact that the parties in that case were members of the United Kingdom Jute Goods Association Limited and were thus bound by the rules of that company, the arbitration clause contained in the rules of that company was held to be not applicable, that in the present case, thereforee, the rules of the Association with regard to arbitration clause obviously cannot be held to be applicable to the parties in the present case.

(27) The aforesaid authority is also distinguishable. It was held that the rules of that company, in that case, could relate only to their rights as members of the company and could not relate to their rights, in an ordinary business contract having nothing to do with the company, that as in that case it were the rights in an ordinary business contract which were sought to be enforced, the arbitration clause contained in the rule of the company was not applicable. Here the parties are not coming by virture of being members of Association. The reliance of the petitioner is on an express agreement in the bills that the rules and regulations of the Association will apply. Further, the Association in the present case is formed for the smooth running of the business of the members and for resolving their disputes, without much expense, by way of arbitration. So, in the present case, qua the members of the Association, the arbitration clause is applicable.

(28) Learned counsel for the respondent laid great stress on the fact that none of the bills bear the signature of the respondent and, thereforee, it cannot be said that any valid contract come into existence. He explains that the bill is merely unilateral document sent by the seller to the buyer, that unilateral document cannot bring into existence any agreement that an agreement is part of a bilateral action and that, thereforee, there is no agreement in writing within the meaning of section 2(a) of the Arbitration Act.

(29) The atoresaid argument has no force in view of the judgment of Avadh Behari, J. mentioned already. In that case also, which was on the basis of the bills, it was held that there was an arbitration agreement between the parties by way of principle of incorporation. The relevant observations have already been reproduced. The same are binding. The issue is, thereforee, decided in favor of the petitioner,

(30) Before I conclude, it is necessary to decide two application. One is I.A. 2725/82 under Order 13 Rule 2 (wrongly labelled as under Order 41 Rule 27 Civil Procedure Code ) and section 151 Civil Procedure Code . Along with that application, a printed book of the rules 'of the Association has been attached. It is stated in the application that that boo'k contains the latest rules and that, thereforee, the same be allowed to be produced on record so that proper justice may be done between the parties. The said book is of 1979 edition. The petitioner has placed on record 1973 edition along with amendments in cyclostyled which are F and G respectively. It was argued by the counsel for the petitioner at the time of arguments that the book sought to be produced is nothing more than the consolidation of the documents F and G which are already on record and that there is hardly any necessity of allowing this printed book to be placed on record. Learned counsel for the respondent replied that it will be beneficial to have consolidated rules and regulations of the Association in printed form rather than having them in two parts F and G. But that is hardly any ground for placing any additional evidence on record specially when the arguments have already closed and the orders were reserved. I, thereforee, reject this application. 1.A. 2725182 stands disposed of.

(31) There is another application which is 1.A. 2809182 under Order 6 Rule 17 and Section 151 Civil Procedure Code By way of this applica' ion. the respondent wants to amend his reply dated 3-4-1980 and add the following after paragraph 23 : (i) In any even according to the allegations and pleadings of the petitioner there was an oral agreement for settlement of the disputes by the Delhi Hindustani Mercentile Association. Thus there is no written statement or a contract for arbitration under Section on 2A of the Arbitration Act. (ii) The alleged unsigned hills do not constitute a contract. The bill has been judicially interpreted as a memo containing an account showing a sum as due for the goods sold. (iii) The respondent at no time surrendered his common law right to approach the civil court. (iv) The alleged Arbitration clause contained in Rule 47 (10) of 1973 does not embrace within its sweep and ambit the alleged dispute raised by the petitioner. (v) Each bill constitutes a separate and different and distinct transaction and, thereforee, all the alleged bills cannot be joined together to form one transaction. (vi) The rule 47(10) is uncertain, vague and general and thereforee no effect could be given to it.

(32) The aforesaid application is contested by the petitioner and I have heard the learned counsel for the parties.

(33) It is apparent from the above that the additions which the respondent wants by way of amendment of the reply are merely arguments almost all of which have been considered already. The only thing now put forward is that such bill constituted a separate and distinct transaction and that, thereforee, they cannot be joined together. Further, it has been stated that Rule 47 of the Association is vague and uncertain. Both these are argumentative. These arguments have no force. All the bills form part of a dealing or the same transaction of purchase of cloth on credit from the petitioner. thereforee, they can be taken up together. Especially so when same question of law and fact as to the reference to arbitration arise. It was held by Avadh Behari, J. : AIR1982Delhi122 that Rule 47 (10) of the Rules of the Association is not vague and uncertain. In fact, there is no uncertainty at all.

(34) Hence there is hardly any justification for allowing amendment and this application is also rejected.

(35) CRL. Original No. 727180. The present application is under Section 340 Criminal Procedure Code . for instituting a criminal complaint against the respondents, namely, Kirori Mal, Nand Kishore, Krishan Chander, Ramesh Chander, Kailash Chander, Satish Chander and Naresh Chander. The application was filed by Solian Lal. According to him the respondents alleged in Suit No. 134- A/80 that notices dated 19-1-1980 and 18-2-1980 were sent. to the former under postal certificates, that actually no notice was ever sent, that the copies of the same had been forged and that, thereforee, the respondents are liable to be prosecuted for the offence of forgery. Sohan Lal also alleges that the respondents filed false affidavits knowing them to be false and that, thereforee, they have committed offences punishable under section 193 Indian Penal Code . According to him, the respondents should be prosecuted for having committed offences punishable under Sections 465, 471 and 193 Indian Penal Code .

(36) The application is contested by the respondents and I have heard the learned counsel for the parties.

(37) I have already held above that the affidavit of Krishan Chander filed in the main suit (Suit No. 134-A of 1980) are correct. thereforee, there is no question of prosecuting the respondents for swearing any false affidavit.

(38) Sending of notices is not very important evidence for enabling the petitioner to get the disputes between the parties referred to arbitration. In fact, that evidence has not been relied upon at all in the judgment. thereforee, it is hardly expedient in the interest of justice to prosecute the respondents even if it is taken for granted (although it is not shown by any evidence) that the respondents had fabricated copies of the notice alleged to have been sent to Sohan Lal. Under these circumstances, the aforesaid application is also rejected.

(39) In view of the aforesaid findings I accept the petiticrn under Section 20 of the Arbitration Act of the petitioner and direct that Delhi Hindustani Mercentile Association shall nominate an Arbitrator who shall proceed with the arbitration and give an award. A direction be sent to the Association immediately.

(40) Suit No. 134-A/80, I.As. No. 2725182, 2809182 and Crl. Original No.727/80 stand disposed of. No order as to costs.


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