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Jnanendra Krishna Bose Vs. Sinclair Murray Co. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal255,66Ind.Cas.741
AppellantJnanendra Krishna Bose
RespondentSinclair Murray Co.
Cases ReferredIves v. Willans
Excerpt:
arbitration act (ix of 1899), section 19 - stay of suit--action, not relating to matters submitted to arbitration. - .....the end of january 1919, sinclair murray & co. took steps to refer their claim against j. k. bose to arbitration, and that thereupon, on the 22nd february, the present suit was instituted by j. k. bose against sinclair murray & co. this, apparently, was a mistake. at the time when the suit res instituted by j. k. boss against sinclair murray & co. no reference had been made by the latter to the bengal chamber of commerce arbitration tribunal in terms of the arbitration clause contained in the contrast between them. that clause was in these terms: 'any dispute arising on or out of this contrast shall be referred to the arbitration of the bengal chamber of commerce under its rules applicable for the time being for decision, and such decision shall be accepted as final and binding on.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal from the judgment of Mr. Justice Buckland on an application under Section 19 of the Indian Arbitration Act, 1899, for stay of a suit.

2. It appears that on the 3rd July 1919, the appellant, J. K. Base, gold certain goods to the respondents, Sinclair Murray & Co. On the same date, there was a sale of the identical goods by Sinclair Murray, & Co. to D. L. Millar & Co. Subsequently, disputes arose between Sinclair Murray & Co. and D. L. Millar & Co., with the result that there was a reference to arbitration in terms of the arbitration clause contained in the contrast between those parties. This reference resulted in an award for a large sum of money in favour of D. L. Millar & Co. against Sinclair Murray & Co. Sinclair Murray & Co. thereupon claimed to recover from J. K. Bose the sum whish they had been made liable to pay to D. L. Millar & Co. On this J. K. Base instituted the present suit for recovery of a sum of Rs. 1,530 from Sinclair Murray & Co. Sinclair Murray & Co. then applied under Section 19 of the Arbitration Act to stay the suit.

3. Mr. Justice Buckland states in his judgment that towards the end of January 1919, Sinclair Murray & Co. took steps to refer their claim against J. K. Bose to arbitration, and that thereupon, on the 22nd February, the present suit was instituted by J. K. Bose against Sinclair Murray & Co. This, apparently, was a mistake. At the time when the suit res instituted by J. K. Boss against Sinclair Murray & Co. no reference had been made by the latter to the Bengal Chamber of Commerce Arbitration Tribunal in terms of the arbitration clause contained in the contrast between them. That clause was in these terms: 'Any dispute arising on or out of this contrast shall be referred to the arbitration of the Bengal Chamber of Commerce under its rules applicable for the time being for decision, and such decision shall be accepted as final and binding on both the parties, to this contrast.' The object apparently is to force J, K. Bose to have recourse to the arbitration clause. Mr. Justice Buckland has held that under the circumstances of the case the suit should be stayed. We are of opinion that this order cannot be supported.

4. Section 19 of the Indian Arbiration Act provides that 'where any party to a submission to whish this Act applies, or any parson claiming under him, commences any legal proceedings against any other party to the submission, or any person claiming under him, in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings.... ' Consequently, before an order san be made under Section 19, it must be established that the suit has been instituted in respect of a matter agreed to be referred. We have read the plaint in the suit instituted by J. K. Bose: and, in view of the order whish we propose to make, we shall not discuss its terms. We need only observe at the present stage that from the plaint it is by no means clear that the claim of Rs. 1,500 relates to a matter agreed to be referred. That it is essential that the claim should relate to a matter agreed to be referred, is established by the decision of the House of Lords in Thomas & Co. Limited v. Portsea Steamship Company Limited (1912) App. Cas. 1 : 105 L. T. 257, 55 S. J. 6155 12 Asp. M. C. 23 : 49 Sc. L. R. 628. It is wall settled by along series of cases that the Court will refuse a stay, where the action commenced relates to matters outside the submission; Smith v. Allen (1862) 8 F. & F. 156, Daunt v. hazard (1858) 27 L. J. Ex. 399 : 114 R. R. 1055, Lawson v. Wallasey Local Board (1883) 11 Q. B. D. 229 : 52 L. J. Q. B. 302 : 47 L. T. 625, Swiney v. Ballymena (1888) 23 L. R. Jr. 122, Workman v. Belfast Harbour Commissioners (6). We further find that Sinclair Murray & Co. did not apply to the Court to compel J. K. Bose to give farther particulars, be that it might be ascertained what was the real basis of the cause of action alleged by J. E. Bose against them. They did not do so, it is said, because they apprehended that such attempt on their part might be treated as equivalent to taking a step in the proceedings and might thereby disqualify them from having the benefit of Section 19. The appellants have argued that the apprehension was really ground-less and that mere request to be further informed of the matter alleged against the respondents could not constitute a step in the proceedings. But we need not discuss whether such apprehension was or was not well founded in view of the observations in Ives v. Willans (1899) 2 Jr. R. 234 : 4 Jr. L. R. 738 (1894) 2 Oh. 478 : 63 L. J. Ch. 521 : 7 R. 243 : 70 L. T. 674 : 42 W. R. 483 and whether the respon dent would have been affected by the decision in Parker Gaines & Co. Turpin (1918) 1 K.B. 358 : 87 L. J. K. B. 357 : 118 L. 346 : 62 S.J. 331. This much is clear that there is no reason why, for the purposes of Section 19, the Court should cot compel J. K. Bose to give further particulars, so as to enable the Court to determine, whether the claim of Rs. 1,500 can be treated as a matter agreed to be referred under the contract between J. K. Bose and Sinclair Murray & Co. In these circumstances, it is impossible for us to uphold the order of Mr. Justice Buckland.

5. The result is that the appeal is allowed, the order made by Mr. Justice Buckland set aside and the matter remitted to him in order that he may reconsider it and determine, after taking such steps as he may consider necessary to ascertain from the plaintiff the basis of his claim against Sinclair Murray & Co., whether an order should or should not he made under Section 19 of the Indian Arbitration Act

6. The costs of this appeal will be costs in the proceedings.

7. The hearing of this matter will be expedited as far as practicable.

Ernest Fletcher, J.

8. I agree.


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