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Hurmukhroy Ram Chunder Vs. the Japan Cotton Trading Co., Ld. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in66Ind.Cas.342
AppellantHurmukhroy Ram Chunder
RespondentThe Japan Cotton Trading Co., Ld.
Cases ReferredThorp v. Cole
Excerpt:
arbitration - jurisdiction--award based on grounds some of which not justifiable, effect of. - .....the date of arrival, payment casb, 2 months' late shipment accepted.'2. the contract contained an arbitration clause in these terms: 'any dispute as to damage, difference, inferiority, short quantity or measure or defeat or amount of allowance to be referred, at seller's option, to the bengal chamber of commerce or other arbitration tribunal as specified thereunder.' the question of the true scope of this clause came up for consideration by this court in the case of chandmull goneshmull v. nippon munkwa kabushiki kaisha 64 ind. cas. 798 : 33 c. l. j. 545. we were then disposed to hold that mr. justice greaves had plated an unduly narrow construction upon the arbitration clause, especially as to the meaning of the words 'difference' and 'inferiority.' in that case, however, it transpired.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal from a judgment of Mr. Justice Greaves, in which he has held, on an application by the respondents, that the award made against them by the Bengal Chamber of Commerce Arbitration Tribunal on the 18th July 1919, at the instance of the appellant, is null and void. The contract between the parties was made on the 1st August 1918 for the sale of '19 bales of sheeting No. 3841, 36 inches by 38 yards at Rs. 19-12-0 per piece; shipment November and December 1918, delivery within 60 days from the date of arrival, payment casb, 2 months' late shipment accepted.'

2. The contract contained an arbitration clause in these terms: 'Any dispute as to damage, difference, inferiority, short quantity or measure or defeat or amount of allowance to be referred, at seller's option, to the Bengal Chamber of Commerce or other Arbitration Tribunal as specified thereunder.' The question of the true scope of this clause came up for consideration by this Court in the case of Chandmull Goneshmull v. Nippon Munkwa Kabushiki Kaisha 64 Ind. Cas. 798 : 33 C. L. J. 545. We were then disposed to hold that Mr. Justice Greaves had plated an unduly narrow construction upon the arbitration clause, especially as to the meaning of the words 'difference' and 'inferiority.' In that case, however, it transpired that there had been no dispute between the parties such as would entitle one of them to invoke the aid of the arbitration clause. In the case before as, the buyer appellant had the matter referred to arbitration and his grounds of complaint were stated in these terms: 'That the goods are not in terms of the contract and are not covered thereby. All these good and similar goods were originally sold by the importing firm to Sukdeo Ramprosad (their banians' firm): after such sale, how can the importing firm sell these goods to other parties, treating such goods as the property of the importing firm? Correct shipments are not proved and it is not proved that the quantity of goods sold here, had been purchased and provided for in Japan, others are in the statement hereunder.' It is plain that some of these grounds of complaint do fall within the scope of the arbitration clause; but ft is equally clear that the other grounds are beyond the scope of the arbitration clause. Consequently, the true position is that the appellant invoked the aid of the arbitrators on grounds some of which did, while the others did not, justify the exercise of theirs jurisdiction. When the matter went before the arbitrators, they delivered an award, which set out the grounds of complaint (as mentioned above) and then proceeded to formulate the decision: 'We have carefully examined all evidence put before us and a ward concealment of contract. Messrs, the Japan Cotton Trading Co., Ltd., sellers, shall pay to Messrs. Hurmukhroy Ram Chander, buyers, the costs of this arbitration amounting to Rs. 125' it will be observed that the award does not state either the fasts found by the arbitrators or the grounds for their decision. It is, consequently, impossible for us to hold that the award proceeded solely on those grounds which entitled the arbitrators to exercise their jurisdiction under the arbitration clause, and not on any of the grounds which did not afford a basis for the exercise of that jurisdiction. Indeed, the fact that the complaints, as summarised by the appellant, are all set out as a prefase to the award, indicates, prima facie, that the award is based on all the grounds. In these circumstances, when we cannot hold with certainty that the arbitrators acted exclusively on grounds within their jurisdiction, we must apply the principle that if the bad is not separable from the good, the whole is bad, and pronounce the award null and void: Skipworth v. Skipworth (1846) 9 Beav. 135 : 50 E. R. 294, Storke v. De Smeth (1738) Willes 66 : 12 E. R. 1059, Buccleuch v. Metropolitan Board of Works (1870) 5 Ex. 221 affirmed on Appeal (1871) 5 H. L. 418 : 41 L. J. Ex. 187 : 27 L. T. 1., Thorp v. Cole (1835) 2 C. M. & R. 367 : 4 Dowl. 457 : 5 L. J. (n. s.) Ex. 24 : 5 Tyr. 1047, 41 R. R 733 : 150 E. R. 158.

3. The result is, that the decree made by Mr. Justice Greaves is affirmed and this appeal dismissed with costs.

Fletcher, J.

4. I agree.


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