1. This is an appeal from a judgment of my learned brother Mr. Justice Page who has set aside an award made by the Committee of the Baled Jute Association upon an appeal, as the proceeding is called, under the rules of that body. Putting the matter quite shortly, it was a dispute between the buyers and sellers of jute. The buyers said that although the original time ended at the end of September and an extension had been granted till the 15th of October 1920 there was a further extension till the 30th of October. The sellers denied that the extension bad been given and accordingly they refused the claim of the buyers that they were in default for not delivering at the end of October.
2. What happened was in effect this : There was first of all an abortive arbitration before a Mr. Holzman and that was followed by proceedings which set it aside and there was another arbitration before two arbitrators, a Mr. Holzman and a Mr. Singleton, These arbitrators disagreed and the matter was dealt with by Mr. Connew as umpire. Mr. Connew, on the 20th of May 1921, awarded damages to the buyers, the firm of Chandmull Moolchand, against the sellers, the firm of Surajmull Askaran. He ordered Messrs. Surajmull Askaran to pay Rupees 6,000 by way of damages for their failure to deliver at the end of October. There can be no doubt that that was the view taken by him because, as a matter of fact, he stated in his award that the damages were the difference between the contract-rate and the market-rate on the 30th of October 1920. Thereupon the sellers Messrs. Surajmull Askaran, who are now the appellants before us, appealed to the Committee of the Baled Jute Association and both sides took the view that the question to be decided was whether or not there had been an extension from the 15th of October to the 30th and what was the market-rate at the end of October.
3. The appellants before the Committee, if one may so call them, were Messrs. Surajmull Askaran. In their grounds of appeal they alleged that ' the letter of Messrs. Massey & Co. was written on the information of some Babu ' who, as a matter of fact, did not put through the alleged extension. They went on to say:
Under the circumstances the arbitrators cannot possibly decide the case without taking oral evidence of the 'Babu' and of our representative Ful Chand Serowgee who is supposed to have consented to an extension and which he emphatically denies that he consented to the alleged extension.
We pray that the arbitrators should fix a time to enable us to give evidence on our behalf and no justice can be done to the merits of the case without allowing us to submit our evidence. Apart from the question of extension we have a very strong case on the question of the rate of the alleged damages as the figure claimed is absolutely fictitious and wholly exaggerated, We beg to reserve our submissions on this point viz., as to the amount of the grossly exaggerated claim which has no relation to prevailing market-rate.
We shall submit our evidence on being asked by the learned arbitrators to do so.
4. That was the view of the sellers before the Committee.
5. The view of the buyers who had succeeded before Mr. Connew was this. They said:
With, reference to the alleged grounds of appeal submitted by Messrs. Surajmull Askaran we respectfully submit to call for the umpire's fair doings of the matters referred to as he took evidence of Babu Ful Chand and others concerned of the market-rate.
It will not be out of place to mention here that Babu Ful Chand of Messrs. Surajmull Askaran admitted the extension before Mr. Connew, the umpire, and he further admitted that the arrangement of the extension was previous to the unpleasantness between Babu Ful Chand and the Moolchand. Babu Moolohand and Messrs. Massey & Co. must be called on the question of the arrangement.
6. That was the case of the two parties.
7. The rules which this Association has made to control appeals to the Committee do not anywhere state that the committee shall be entitled to restrict themselves to the materials which were before the umpire or the arbitrators. They nowhere make a provision restricting the right of a party to insist that his evidence upon a question of fact relevant to the case shall be taken. It is not clear what the Committee's duties are from the rules themselves, but in cases where the quality or the condition of the jute is the subject-matter in dispute, it appears that the Chairman can appoint at his discretion an expert to examine the jute and report to the Committee, so that in those cases, at all events, the Committee does not appear to act like a Court of Appeal or to bind itself prima facie to the materials to be taken before the tribunal whose order is under question.
8. There is another piece of evidence which seems to show the same thing and I will refer to the letter, dated the 13th of June 1921, which the Secretary wrote to Mr. Connew. At the same time he was writing to the parties fixing the date of the hearing of this appeal. The Secretary wrote to Mr. Connew:
The Committee will hear the appeal to-morrow.... They will be glad if you will kindly attend to give evidence.
9. It appears, therefore, that this Committee, in hearing appeals, takes evidence, but it is not at all clear because there was no proper record of the proceedings, so far as this Court knows, either before Mr. Connew or before the Committee. It looks as if there was some oral evidence taken before Mr. Connew, although it does not appear to have been reduced to writing, and it looks as if the Committee, too, might have taken evidence from Mr. Connew himself. It has to be remembered that, according to the case of the plaintiffs, Mr. Connew was a person who could give evidence of an actual admission made on the part of the present appellants that they had consented to an extension. I am not, therefore, prepared to dispose of this case on the basis that this Committee treated themselves as a Court of Appeal in the ordinary sense. I am not prepared to hold that the Committee's functions were such as to entitle them to restrict themselves to the materials recorded before the umpire. I think they purported to deal with the case de novo and they were entirely unable to deal with the case de novo without taking evidence. Further, if they took evidence from Mr. Connew as to whether an admission was made in his hearing or not and did not afford an opportunity to the parties to be present at the hearing or to give rebutting evidence if they desired, they; were guilty of very clear misconduct. It seems to me, therefore, that on the question whether the Committee's award reversing the decision of the umpire can stand, the learned Judge is right.
10. It does not seem to me to be reasonable to say that the aggrieved person who has, without his evidence being taken, had an award in his favour reversed, is bound to go on and show the exact reasons which motived the tribunal to reverse the previous award. If the proceedings taken by the Committee are not such as they should have taken, then the duty of finding out exactly where the ultimate harm has been produced is not upon the plaintiffs at all. We are not to support an award of that character by guessing as to whether or not the misconduct may have been in the end entirely innocuous. I have, therefore, no hesitation in refusing to accede to the argument that it is conceivable that this Committee may have held that there were no damages although there was an extension in point of fact. Indeed, on the facts of this case, as far as one cant tell them, and in view of the agreement, as to the amount of damages made between the parties in the end, there seems to be no reason at all for such an extravagant supposition as that no award was made because there was no damage. I think, therefore, that the learned Judge's judgment should be supported.
11. One more point was pressed upon us by Mr. Sircar and that was this. He said : Assuming that the award of the Committee is bad, why should the effect of that be to leave the matter to be decided in a Court of law? Is not the result really this : that Mr. Connew's award is left standing subject to any right that Messrs. Surajmull Askran may have to appeal to the Committee and get it set aside? With regard to that matter it has to be observed that any such appeal has to go back to the same Committee. There is only one Committee here that discharges the duty of dealing with such appeals. The learned Judge has held quite properly that he does not want this matter sent back to that Committee because he does not think it would be fair to the parties. That being 50, it is quite clear that the contractual forum which the parties intended to erect for the purpose of settling their disputes has failed to operate and it would be entirely unreasonable to hold either party bound by the award of Mr. Connew, which was never intended to be absolutely final, because of the circumstance that the further right of appeal has failed owing to the conduct of the Committee. I think the position is that the matter is at large and this Court of law is entitled to deal with it on the award being set aside. In my judgment, therefore, the question resolves itself into the question of how much, damages the plaintiff shall have if he proved the extensive to the satisfaction of the Court. The learned Judge's judgment has not been challenged before us as regards that part of the case, nor has Mr. Sircar for the appellants taken any point as to the case being incompetently brought by way of suit rather than by way of petition under the Indian Arbitration Act.
12. In these circumstances, I think the appeal fails and must be dismissed with costs.
C.C. Ghose, J.
13. I agree.