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D.L. Miller and Co. Ltd. Vs. Daluram Goganmull - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberAward Case No. 109 of 1954
Judge
Reported inAIR1956Cal361
ActsArbitration Act, 1940 - Sections 16 and 30; ;Tribunal of Arbitration of Bengal Chamber of Commerce Rules - Rules 10, 11 and 17
AppellantD.L. Miller and Co. Ltd.
RespondentDaluram Goganmull
Appellant AdvocateE.R. Meyer, Adv.
Respondent AdvocateA.C. Bhabra, Adv.
DispositionApplication dismissed
Cases ReferredHusein Ebrahim v. Kesardeo Kanoria
Excerpt:
- orderp.b. mukharji, j.1. this is an application by d.l. miller and co. ltd. to set, aside award no. 11 of 1955 of the bengal chamber of commerce and industry dated 4-1-1955 and to declare it null and void. mr. meyer on behalf of the applicant has, urged only three grounds and no others.2. his first point of objection is that the court of arbitration which has given the award in this case was not a properly constituted court on the ground that it violated' the consent order remitting the previous award. his second point of objection is that on 3-1-1955 the arbitrators received a written statement from the respondent which the applicant was given no opportunity to answer. his third point of objection is that on 3-1-1955 when evidence was being taken, the applicant's representative was.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by D.L. Miller and Co. Ltd. to set, aside Award No. 11 of 1955 of the Bengal Chamber of Commerce and Industry dated 4-1-1955 and to declare it null and void. Mr. Meyer on behalf of the applicant has, urged only three grounds and no others.

2. His first point of objection is that the Court of Arbitration which has given the Award in this case was not a properly constituted Court on the ground that it violated' the consent order remitting the previous Award. His second point of objection is that on 3-1-1955 the Arbitrators received a written statement from the respondent which the applicant was given no opportunity to answer. His third point of objection is that on 3-1-1955 when evidence was being taken, the applicant's representative was denied the right to cross-examine the evidence of the respondent's representative.

3. No other objection has been urged before me.

4. Before discussing these objections and determining them; the facts of the dispute between the parties and the history of the Arbitration in this matter have to be briefly stated. On 10-4-1953 the applicant agreed to purchase a certain quantity of jute to be delivered in April-May, 1953. It is the applicant's case that the respondent delivered only a part of that jute and failed to deliver the balance and that even those goods which were delivered were not of the contracted quality. The applicant thereupon claimed Rs. 7,300/- as damages for inferior quality and Rs. 29.52Q/- as damages for non-delivery.

The respondent claimed Rs. 37,272/- being the price of the goods delivered. Their dispute and differences were referred to the Bengal Chamber of Commerce. On 22-2-1954; an Award was made by the Bengal Chamber of Commerce directing the applicant to pay to the respondent Rs. 37,245/-and the respondent to pay to the petitioner Rs. 18,450/-. An application was then made by the present applicant on 24-5-1954 to set aside that Award. On 33-7-1954, by consent of parties the following order was made by Bachawat J. :

'1. The Award is remitted to the Tribunal of Arbitration Bengal Chamber of Commerce and Industry for reconsideration by a Court to be newly constituted consisting of persons different from those who made the Award.

2. The Award shall be made within five months from the date of receipt of the paper of the Bengal Chamber of Commerce and Industry.'

By consent, the costs of and incidental to that application as. well as of the judgment upon Award were reserved.

5. The papers thereafter reached the Bengal Chamber of Commerce from this Court on 4 or 5-8-1954. On 23-8-1954. a court was appointed by the Registrar of the Bengal Chamber of Commerce. One of the Arbitrators having expressed his inability to serve on the Court, the Court wasre-constituted under Rule 10 of the Bengal Chamber of Commerce by appointing somebody else in his place. The intimation of the re-constituted Court was sent to the parties on 3-9-1954.

On 27-9-1954, statement was filed by respondent Daluram Goganmull, and Rs. 400/- was deposited towards tne fees of the Tribunal. On 6-11-1954, counter-statement was filed by the applicant. The respondent then filed further statement on 19-11-1954. On 23-12-1954 the Bengal Chamber of: Commerce gave notice to the parties for a meeting to be held on 3-1-1955. The Arbitrators held their meeting on that day.

On the following day, 4-1-1955, the Award was made by the Bengal Chamber of Commerce. Thereafter on the 18th March, 1955 the present Notice of Motion was taken out to set aside thia Award. By a process which I have not been able to understand, thia matter was kept pending for one whole year allegedly for the purpose of using affidavits which, in my view, should not have taken more than three weeks at the outside.

6. I shall take up Mr. Meyer's first objection about the invalidity of the Court of Arbitration. His submission was that by the consent order of 13-7-1954, a new type of Arbitration was contemplated. It could only be an Arbitration by one Court. According to Mr. Meyer, it could not be by different Courts, and the Bengal Chamber of Commerce was wrong in re-constituting a Court even though one of the Arbitrators at first mentioned was unwilling to act. In other words, Mr. Meyer's submission was that Arbitration under this consent order was not an Arbitration according to the rules and regulations of the Bengal Chamber of Commerce.

7. I am afraid this objection has no substance whatever & can be dismissed on three broad grounds. It is true that there was a consent order remitting the Award to the Arbitrators. But an order remitting an Award is made always under Section 16 of the Arbitration Act which says expressly that the Court in such a case remits the Award 'to the Arbitrators' or umpire for reconsideration upon such terms as it thinks fit. Therefore, this consent order remitting the Award must be construed as remitting it to the Arbitration of the Bengal Chamber of Commerce according to the contract of the parties. That is the first ground.

Then the second ground is that the Arbitration Agreement between the parties still remains operative even where an order to remit the Award has been made by the Court under Section 16 of the Arbitration Act, for what that section says is that the Court remits the Award or 'any matter referred to arbitration'. In other words, the reference to arbitration still exists. 'By Clause 13 pf the contract in this case between the parties it was distinctly and expressly stipulated:

'All matters, questions, disputes, differences & /or claims arising out of and/or concerning and /or in connection with and/or in consequence of or relating to this contract including matters relating to insurance and demurrage whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce and Industry under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted and any Award made by the said Tribunal under this clause shall be final, binding and conclusive on the parties.'

8. Therefore, it is plain to my mind that this order remitting the Award must be construed as an order remitting the Award to the Bengal Chamber of Commerce, but with this limitation that it should be by a Court 'to be newly constituted consisting of persons different from those who made the Award.' In fact the Court by consent of parties directed that it should be by persons different from those who constituted the Court of Tribunal who made the previous Award.

But when the consent order used the expression 'newly constituted', it meant constituted according to the rules of the Bengal Chamber of Commerce arbitration. There was this further direction in the consent order that the Award had to be made within five months from the date of the receipt of the papers by the Bengal Chamber of Commerce.

Except these two terms and conditions, there were no other terms and conditions imposed by that consent order of the Court. Therefore, it follows that this consent order does not impose any term saying that the rules of the Bengal Chamber of Commerce and Industry will not be applicable at all or that the conduct of such Arbitration will not be according to such rules of the Tribunal. As the rules of the Tribunal permit re-constitution or a Court, there was nothing wrong, illegal or invalid when the Bengal Chamber of Commerce re-constituted its Court on the ground that one of the Arbitrators at first selected was unwilling to act. That is the third ground. I, therefore, overrule the first objection.

9. The second point of Mr. Meyer is that the respondent was allowed to file a written statement before the Arbitrators on 3-1-1955, but the applicant was not given any opportunity to file a reply to such written statement. This in face I find is a misconception in the sense that this was not a written statement at all. In fact it was not signed by the respondent or by anyone else. What it purports to be is a typed list of points of argument in one page. That is how also it is described in the minutes of the Arbitrators and I entirely agree with such description. It certainly is not, to my mind, a written statement of the case of the plaintiff.

Rule 11 of the Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce makes it quite clear that:

'Parties within such time as may be directed by the Court shall prepare and submit to the Registrar in duplicate a written statement of their respective cases with copies of all relevant documents and other evidence on which they rely. A copy of each party's case shall be given to the other party who shall respectively be entitled to put in a rejoinder thereto within such time as may be directed. Normally 110 more than one rejoinder shall be filed, but the Court shall have discretion if it thinks fit to allow, more than one rejoinder on such terms as it, may impose.'

This rule makes it quite clear that it is only a 'written statement of the respective casas' that is contemplated For the exchange between the parties. In fact the rule expressly says that a copy of 'each party's case' shall be given to the other party. Now this list of typed points is not the respondent's case at all. I have carefully scanned this typed list of points and I find that each one of these points is taken from the statements and counter-statements already on record before the Arbitrators.

10. It is not the case of the applicant that they had no opportunity to see this typed list ofpoints when it was submitted before the Arbitrators. What they complain is that they wanted to submit a written reply to that typed list. To that they were told by the Arbitrators that such a written reply was 'not necessary'. Anyone looking at this typed list would certainly say that no written reply was necessary because of the simple fact that all the points there mentioned had already appeared in the much, fuller statements and counter-statements of the parties and had been duly agitated in such statements and counter-statements.

In such circumstances I am bound to hold that there was no misconduct on the part of the Arbitrators in saying that no written reply was necessary, nor do I think that there was the slightest misconduct in their reception of the typed list. Unless there was legal misconduct the applicant cannot succeed in setting aside the award.

Both on construction of Rule 11 as above as well as on the merits of this point I hold that this typed list is not a written statement of a party's case at all that it contained nothing new whatever and that whatever was contained there was fully stated in the respondent's different statements filed before the Arbitrators which the applicant had ample opportunities to answer and which in fact he did answer in full in his different statements before the Arbitrators. And finally I hold that the Arbitrators were right in saving that it was not necessary to file any written reply to such typed list of points. I hold, therefore, that there was no misconduct of the Arbitrators on this point. For these reasons I also overrule the second point of objection.

11. The third point of objection taken by Mr. Meyer is that on 3-1-1955 the applicant's representative Mr. P. Bhattacharjee was denied the right to cross-examine the respondent's representative. What happened on that day was that the applicant's representative wanted to cross-examine the respondent's representative. The Arbitrator wanted to know on what points he wished to cross-examine and wanted to sec the nature of points or questions that the applicant's representative wanted to put.

Thereupon the applicant's representative placed before the 'Arbitrators seven pages of typed questions with which he had come prepared beginning with such questions as, 'What is your name?' and ending with the 52nd question as 'I put it to you that your entire claims are absolutely false.' These typed sheets although bearing no date on the top bear the date at the end of the last question which is the 52nd question and such date is 2-1-55.

The Arbitrators looked at those questions and said according to the petitioner that 'some of these questions were irrelevant and the majority of those questions were covered by the written submissions of the parties.' On 4-1-1954 when the applicant's attorneys were recording this fact) it was only said that the Arbitrators expressed their unwillingness to allow an opportunity to cross-examine the respondent's representative, but it was not said there that they did so on the ground that the questions were irrelevant or that they were covered by their written submissions already made by the parties.

12. On this fact Mr. Meyer has argued that the 'Arbitrators had violated the rules and principles of natural justice.

13. The doctrine of Arbitrators' legal misconduct has been so over-worked in recent years that across the whole branch of case law on thispoint one finds the blazing trial of principles of natural justice. They are discussed and agitated in an atmosphere of complete unreality and divorced from the facts of each case.

Somehow the obvious point is missed in most of such cases that when, the parties agree to go to arbitration they stipulate not so much for vague principles of natural justice as for concrete principles of contractual justice according to the contracts of the parties and their specific stipulations. Where the contract of arbitration itself prescribes a private procedure of its own, then so long as such agreed private procedure is not against the laws and the statutes of the land, then such agreed procedure must prevail over the notions, and principles of natural justice.

If the origin of the application of the principles of natural justice to arbitration procedure ia remembered then this confusion is easily avoided. When a contract or agreement for arbitration itself does not lay down any particular procedure for the conduct of the arbitration, the Courts have said that the arbitrators must follow the principles of natural justice which are no other than common sense standards of fairness and impartiality such as no party should be condemned unheard or without representation. It was necessary to do that because the arbitrators are not strict courts of law guided by the Civil Procedure Code and Evidence Act laying down massive details of procedure.

In the absence of any procedure, prescribed either by statute or by contract, the arbitrators must follow the principles of natural justice, or else there is nothing for the arbitrators to fall back upon to ensure fair adjudication. It will therefore be contrary to its origin and raison detre to apply natural justice where an available procedure is prescribed by contract or Statute. Parties are forced to depart from, natural justice by Statute and similarly parties can agree to depart from natural justice. In fact they very often do for avoiding delay', expense and formality. In the case before me they have done so in unmistakable terms.

14. For example here what the parties expressly agreed was not only to go to the arbitration of the Tribunal of Arbitrators of the Bengal Chamber of Commerce but also to have such arbitration according to the published and well-known Rules of arbitration of such Chamber of Commerce. Those Rules certainly are not models of natural justice nor were they intended to be so. Now the rules of arbitration here provide, for instance, 'that no Party shall without the permission of the Court be entitled to appear bv counsel, attorney or other advocate or adviser'.

Denial of legal representation to a party does not savour of natural justice. Then again for instance the right to cross-examine which is a statutory right under the Indian Evidence Act in proceedings before a Court of law is not available in arbitration proceedings because of its express exclusion by Section 1 of that Statute. To found, therefore, a right to cross-examine on some vague principles of natural justice in such a context is to seek something which is not there. In fact Rule 17 of the Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce deals with evidence, and one looks there in vain for any right to cross-examine given to any party.

In fact Sub-rule (a) of Rule 17 by saying that 'the parties to the reference and any wit-ness on their behalf shall submit to be examined by the Court on oath or affirmation in relation to the matters in dispute' appears to indicate that it is the Court which can put questions and what is known as the formal examination-in-chief, cross-examination and re-examination in a Court of law are conspicuous by their absence in such arbitrations. In fact Rule 15 provides that

'the dispute will normally be decided by the Court on the written statements of the parties and oral evidence will not be taken, nor will the parses be entitled to appear or any formal hearing be held.'

This again is not a model of natural justice. In fact such Rule violates all principles of natural justice. To say that ''oral evidence will not be taken' or even to say that 'the parties will not be entitled to appear' is not natural justice and yet this is the artificial justice which the parties by voluntary agreement have chosen and therefore must be given effect to.

In such a case with such explicit rules to invoke natural justice to override solemn contracts of parties is to do plain injustice. Towards the latter part of Rule 15 it is further provided that 'the Court shall have power however if it thinks fit to appoint a time and place for the hearing of the reference and to hear the oral evidence'. Even then it is not said that any party wiil have or can claim any right to cross-examine such evidence.

Of course the Court or Tribunal can always permit a cross-examination if it so desires, because that is exactly what is provided by Rule 17 (d) when it says that the parties to the reference and any witness on their behalf 'shall generally do all other things which during the proceedings and reference the Court may require'. On an analysis of these Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce, I do not find, they give to a party any unqualified and unfettered legal right to cross-examine. If the arbitrators allow and require such cross-examination they can always permit a party to cross-examine under the ample powers contained in Rule 17(d).

15. Time has come to insist that enthusiasm for natural justice must always be tempered with due and proper regard for contractual justice to which the parties agree. Parties have the right by contract to provide for their own private forum of arbitration and also to provide for their private procedure. Where private procedure speaks in clear terms the voice of natural justice remains silent.

16. In this connection Mr. Meyer relied on a decision of the Supreme Court in -- 'Vengam-ma v. Kesanna', : [1953]4SCR119 (A), Mr. Meyer particularly relied on the observations of Ehagwati J. appearing at page 22 of that Report where the learned Judge said:

'There is thus no doubt that the Arbitrator heard defendant 1 in the absence of the plain, tiff. No notice of this hearing was given by the Arbitrator to the plaintiff nor had she an opportunity of having the evidence of defendant 1 taken in her presence so that she could suggest cross-examination or herself cross-examine defendant 1 and also be able to find evidence, if she could, that would meet and answer the evidence given by defendant 1, as was observed by Lord Langdale M.R. in -- 'Harvey v. 'Shelton', (1844) 7 Beav 455 (B), at page 462:

'It is so ordinary a principle in the administration of justice that no party to a cause can. be allowed to use any means whatsoever to influence the mind of the Judge, which means are not, known to and capable of being met and resisted by the other party, that it is impossible for a moment not to see that this was an extremely indiscreet mode of proceeding, to say the very least of it.

It is contrary to every principle to allow of such a thing and I wholly deny the difference which is alleged to exist between mercantile arbitrations and legal arbitrations, The first principles of justice must be equally applied in every case. Except in the few cases where exceptions are unavoidable, both sides must be heard and each in the presence of the other.

In every case in which matters are litigated you must attend to the representations made on both sides and you must not in the administration of justice, in whatever form whether in the regularly constituted Courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decision of the judge which means are not known to the other side.'

'This case of -- 'Harvey v. Shelton', (B), is the leading case on this point and it has been followed not only in England but in India (See-- 'Ganesh Narayan Singh v. Malida Koer', 13 Cal L.J. 399 (401 & 402) CO'.

17. That case and the principles discussed there are not in my view attracted where parties have by their own choice agreed to a certain particular procedure and method of arbitration including a specific procedure and method of hearing the reference to arbitration. The decision of the Supreme Court did not relate to an arbitration of the Bengal Chamber of Commerce and the specific rules of arbitration, that are found in the Rules, of the Tribunal of Arbitration of the Bengal Chamber of Commerce which are, expressly and specifically incorporated in the arbitration contract between the parties as in the present case before me.

18. To my mind it is always unwise to assume that there is only one kind of arbitration. The procedure and method of arbitration subject of course to the Arbitration Act vary according to the contract of the parties. The contract of the parties in this case before me follow a well-known pattern of arbitration. It is not a case of a private arbitrator whether mercantile or non-mercantile with no prescribed procedure for arbitration such as that which the Supreme Court was discussing.

It was plain that in the case before the Supreme Court it was a private Arbitrator with no rules of arbitration applying at all, and therefore the doctrine and the principles of natural justice applied. Indeed that is just the case where principles of natural justice must apply. There it was a case where a plaintiff filed a suit for arrears of maintenance and residence which was ultimately referred to a private individual 05 the sole arbitrator. No special procedure was there available according to agreed contract of parties to guide the arbitration procedure.

19. Realising that difficulty Mr. Meyer then fell back upon another decision of this Court in-- 'Husein Ebrahim v. Kesardeo Kanoria', : AIR1954Cal111 (D). Here Mr. Meyer had the advantage of the fact that it was an award of the Bengal Chamber of Commerce which was successfully impeached. But then there what happened was something entirely different from the point for decision in this case before me. Indeed there the Arbitrators followed a procedure not permitted by the Rules of the Bengal Chamber of Commerce arbitration and therefore the principles of natural justice were applied. S.R. Das Gupta J. who delivered judgment in that case observed at page 113:

'The Arbitrators obtained informations from Gunny Traders Association without requiring any of the parties to call evidence on the points on which they wanted such informations, if the Arbitrators were so minded they could have asked the parties to call some person from the Gunny Traders Association to give evidence on the points on which informations were asked for or the Arbitrators might have themselves called such evidence.

But to allow certain informations to go in without calling evidence on those points and thereby depriving the parties of their right to cross-examine cannot, in my opinion, be justified.

I am conscious of the fact that the strict rules of evidence are not applicable to arbitration proceedings, but there is a thing known as natural justice and it would be repugnant to the fundamental conception of natural justice that evidence should be allowed to go in without calling the person whose evidence is admitted, and' without allowing the parties to test such evidence by cross-examination. In the premises as aforesaid I am of the opinion that the Arbitrators have been, guilty of misconduct.'

20. Now in that case the Arbitrators acted on certain informations from a third party without allowing any evidence by the parties themselves on those points on which the informations were obtained. The case here is different. Here no information was obtained from a third party. Here the respondent's representative gave evidence before the Arbitrators in the presence of the applicant's representative.

Secondly that case did not decide at all the particular point which is before me, namely, whether natural justice can operate to override the terms of contractual justice. Nobody for a moment disputes the proposition that where there are no rules or no agreed procedure for conduct of the arbitration, principles and doctrines of natural justice must apply. In fact I have carefully gone through the report of that decision and I do not find that there was any reference or even argument on the specific rules of the Bengal Chamber of Commerce on this point of right to cross-examine.

The only rule there considered was Rule 7 which has nothing to do with this particular point raised in the present application. The arbitrators in that case in fact did something: wholly illegal, because they wrote a letter calling for information from the Gunny Traders Association and there informations were asked for without any reference to the parties. The Rules of the Bengal Chamber of Commerce did not permit such procedure.

The learned Judge, therefore, 'at page 113 says, 'In my opinion the Arbitrators were not justified in behaving in this manner'. What was worse in that case was that the Arbitrators did not even disclose that letter. Here again Rules of the Bengal Chamber of Commerce do not permit secret evidence behind the back of parties and therefore principles of natural justic intervene to prevent such miscarriage of justice.

In fact the parties did not even know the points on which the Arbitrators wanted the information, and that is why the learned Judge in the same page again says: 'It was the duty of the Arbitrators, if they wanted to act fairly in the matter to disclose the said letter dated 5-11-1951 as well.' The facts of the present case before me cannot only be distinguished from the facts of that case but they are also so entirely different.

21. Now what are the facts of the present case? A glance at the list of questions which were intended to be asked for in cross-examination will shew that in this case at any rate there can be no question of misconduct. I shall show by an analysis of those questions that what are described as questions for cross-examination are nothing more than arguments. Arguments converted in question forms do not become cross-examination.

Mr. Meyer in this connection relied on a few questions to show that it was material that his client's representative should have been allowed to put those questions. He relied on questions 6 and 7, questions 10 and 11, questions 13 to 18, questions 21 to 25, question 28 and questions 42 to 44. It is, therefore, necessary to analyse these questions to see either their materiality or their relevance, for if they were either material or relevant, it is then only that the refusal to allow those questions to be put would amount to misconduct.

I need only reiterate that the terms of the Arbitration Clause in this case are so wide that the Arbitrators had full jurisdiction to determine even the question of materiality or relevance or to allow or disallow questions in cross-examination, even if there was any right to cross-examine.

21a. Now questions 6 and 7 are as follows:

Q. 6 You have stated in the Statements of Claim that it was duty of Messrs. D.L. Miller & Co. Ltd., to open the Letter of Credit?

Q. 7 Look at the contract and please find out whether there is any term in the contract to the effect that it was the duty of Messrs. D.L. Miller & Co. Ltd. to open the letter of credit?'

22. In my view, these are only matters for argument. Question 6 only quotes what is in the Statement of Claim which, is already before the Arbitrators. Question 7 refers to the contract which was also before the Arbitrators. Therefore these questions whether D.L. Miller & Co. Ltd., had the duty to open letter of credit under the contract or not or the question whether there was any contradiction between the Statement of Claim and the terms of the contract on the question of whose duty it was to open the letter of credit, are only matters of argument and comment before the Arbitrators.

Such argument would have been that although in the Statement of Claim it was alleged that the duty was cast on D.L. Miller & Co. Ltd. to open the letter of credit, that allegation, was not supported by the terms of the contract which were before the Arbitrators. The refusal, therefore, by the Arbitrators to allow these questions to be put to the witness was not and could not be misconduct. In fact the arbitrators in my view drew the line correctly and rightly between argument and cross-examination.

22a. Questions 10 and II are as follows:

'Q. 10 You will also find that Clause 2, Sub-clause 3 in terms of which the Buyersare to open a letter of credit has been struck out? On the other hand., it is written in place of Clause 3 to the effect that 'cash on delivery'?

Q. 11 Thus you will agree that as the Clause under which the Buyers were to open a letter of Credit has been struck out and it clearly provides that the payment will be made cash against delivery. It was not duty of the Buyers in the present case to open any letter of credit?'

23. These, again, are arguments. The Terms of the contract were before the Arbitrators, and the effect of striking out Clause 2, Sub-clause (3), was a matter of argument. So was the expression, 'cash, on delivery'. It was, therefore, quite unnecessary to put any questions because they would not elicit any more facts than what the documents before the Arbitrators had already done. Therefore, there was or could be no misconduct on the part of the Arbitrators in refusing to allow these questions to be put in cross-examination. Here again the arbitrator drew the line rightly between argument and cross-examination.

24. Questions 13 to 18 refer to letters relating to extension of the time for delivery and the fact whether such letters contained any protest that because the Buyers had not opened a letter of credit, therefore, the extension of time had to be granted. All these letters referred to in these questions from 13 to 18 were before the Arbitrators and were fully discussed in the different statements and counter-statements before them.

The questions intended to be asked were not really questions for cross-examination, but matters for argument. There can be and could be no prejudice, therefore, on the ground that such irrelevant and unnecessary questions were not allowed to be asked by the Arbitrators. Therefore, in my view there was no misconduct on the part of the Arbitrators in refusing to allow que&tions; 13 to 18 to be put in cross-examination.

25. The next group of questions on which Mr. Meyer relied was from question 22 to question 25. They relate, first, to the admitted payment of Rs. 4,600/-. That fact already clearly appeared in the correspondence and in the different statements before the Arbitrators. The question that if it was the duty of the Buyers to open the letter of credit then why such payment was made to the Buyers is, therefore, a question of argument which the applicant was free to make on the record already before the Arbitrators. These questions also intend to show that the respondent had no goods in Pakistan and had no means to perform the contract and, therefore, it was he who committed the breach of the contract.

Now each one of those facts was already there in the different statements and counter-statements filed before the Arbitrators, and that charge had already been made and denied. It is, therefore, plain that questions 22 to 25 'Were irrelevant and wholly unnecessary questions, and I hold that the Arbitrators were right in refusing the applicant to put them in cross-examination, and in so refusing the Arbitrators were not and could not have been held to have been guilty of any legal misconduct at all.

26. The next question on which Mr. Meyer relied was question 28. That question is:

'Q. 28 By your, letter dated 9th June, 1953, you requested the Buyers to extend the-time of delivery for one month. Up to that date you had no complaint against your buyers about the non-payment of the price of the portion of the goods already delivered by 5011?'

27. That, again, is a matter of argument because the letter of 9-6-1953 had already been placed before trie Arbitrators and had been referred to in the different statements and counter-statements filed, and the fact clearly appeared that up to that date there war, no complaint. It was therefore, wholly unnecessary and irrelevant to put that question. Therefore, I hold that the Arbitrators were fully justified in refusing the applicant to put that question, and in so refusing, they cannot be held to have been guilty of any misconduct at all.

28. The last group of questions on which Mr. Meyer relied was from question 42 to question 44. These questions only refer to the Weight Notes and the different deliveries of different quantities of bales as shown therein. That, again, is a matter for argument because all these Weight Notes and the number of bales delivered were already placed before the Arbitrators in the different statements and counter-statements made by the parties. The applicant, therefore, could easily make his arguments on the basis of those Weight Notes, and these questions were not questions for cross-examination taut matters for argument.

I, therefore, hold that questions 42 to 44 were entirely irrelevant and unnecessary, and the Arbitrators were right in refusing to allow the applicant to put those questions in cross-examination, and. in refusing to allow these questions to be put the Arbitrators, in my opinion, did not commit any legal misconduct.

29. There are no other questions on which Mr. Meyer relied and which could have possibly created any prejudice to the applicant.

30. Those being the facts in this case & those being the specific questions, it is clear that the facts in the case of ' : AIR1954Cal111 (D)' were entirely different from the facts in this case. This case is not concerned at all with the case ofan Arbitrator trying to get informations behind the back of parties, a situation which was obvious and clear legal misconduct.

I hold on the facts of this case that there was no legal misconduct on the part of the Arbirators in refusing to allow 'those specific questions to be put in cross-examination. Each one of them, in my opinion, was wholly unnecessary. I repeat what was necessary or unnecessary was a matter for the Arbitrators to decide in this case and they were competent so to decide within the terms of the Arbitration Clause in this case, and it so happens that their decision, appears to agree with mine.

31. For these reasons, I overrule Mr. Meyer'S last point of objection to the Award.

32. in conclusion, it is necessary to refer to one other fact in this connection. It will be recalled that the order remitting the Award limited the time to five months from the recent of the papers by the Bengal Chamber of Commerce within which they had to make this present Award and that such papers reached the Bengal Chamber of Commerce on 4th or 5th, August. 1954. The period of five months, therefore was about to expire on 4th or 5th of January, 1955.

The appearance of the applicant's representative at the meeting of 3-1-1955, armed with seven typed pages of questions to be put in the cross-examination, was commented by Mr. Bhabra for the respondent as nothing else but an attempt somehow to make the time for making the Award expire, so that the Award could not be made any more and thus render the whole of this Arbitration infructuous.

Mr. Bhabra, therefore, says that all these high-sounding complaints of denial of justice and the denial of the right to cross-examine are really nothing but a cover for that motive because in fact all the questions for cross-examination when analysed show that they were wholly uncalled for on merits and were entirely unnecessary. Mr. Meyer in defending his client from, this imputation said that after all it was the Arbitrators who had fixed this meeting on 3rd January, so close to the date of expiry, and it was no fault of his client

Mr. Meyer is certainly justified in making that defence. But it is difficult to get away from the feeling that if all the questions that his client intended to put in cross-examination arose on the different statements and counter-statements already filed before the Arbitrators as early as 3-12-1954, then his client could easily have written to say that he would take a little longer time for cross-examination and other purposes in which event I have no doubt the Arbitrators would have given still earlier dates for hearing.

Having regard to my conclusions on the merits of the points of objection raised by Mr. Meyer, I do not think it is necessary for me to hold whether the applicant' had the motive which, the respondent's counsel stated and shall leave the question of motive undetermined by recording the fact that such a charge was made in argument by the respondent.

33. Per the reasons stated above, I hold that the Award is not invalid or void, and I dismiss the applicant's prayer to set aside the Award. The applicant will pay the costs of this application, including all reserved costs.


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