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Firm Bhican Chand Charoria Vs. Firm G. and M. Fogt - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in100Ind.Cas.299
AppellantFirm Bhican Chand Charoria
RespondentFirm G. and M. Fogt
Cases ReferredDavid Sasoon v. Karnidass
Excerpt:
arbitration - bengal chamber of commerce rules, rules 13, 14--reference to chamber--arbitrator's duty to afford opportunity to adduce evidence, of market rate. - .....firm did not pay the amount of the bill with the result that the respondent firm applied to the bengal chamber of commerce for arbitration in terms of the arbitration clause contained in the contract. the matter then came before the bengal chamber of commerce and on the 2nd of february, 1925, the tribunal of arbitration of the bengal chamber of commerce made their award, whereby they awarded the whole ,of the amount claimed by the respondent firm, i.e., rs. 35,137 8 to the respondents with interest thereon and costs.4. the appellants thereafter applied to mr. justice buckland for an order for setting aside the award and the contention that was urged before the learned judge,. was that, having regard to the nature of the case, the appellants should have been allowed an opportunity of.....
Judgment:

Charu Chunder Ghose, J.

1. This is an appeal from a judgment of Mr. Justice Buckland whereby he refused to set aside an award of the Bengal Chamber of Commerce.

2. The facts, shortly stated, areas follows: On the 30th of April, 1925, a contract was entered into between the appellant firm and the respondent firm whereby the appellant firm agreed to sell and the respondent firm agreed to buy 15,003 1/2 maunds bales of Kishengunj jute, delivery to be given by August or September 1925. No delivery having been effected by the end of September 1925, the appellant firm asked on the 3rd October, 1925, for an extension of time for delivery up to the 31st October, 1925. The respondent firm, refused to agree to the extension asked for, but they stated that they were prepared to allow an extension of time up to the 10th of October, 1925. The appellant firm did not see their way to accept the extension of time up to the 10th of October, 1925, but it appears that on the 5th of October, 1925, the respondent firm expressed their willingness to grant an extension of time for delivery up to the 31st of October, 1925. The appellant firm, however, stated on the 9th of October, 1925, that in the events which had happened they were not then keen on getting an extension of time.

3. On the 15th of October, the respondents made out their bill and forwarded the same to the appellant firm. That bill was for a sum of Rs. 35,437-8 and it was made on the footing of the difference in the price of the goods contracted for between the contract rate and the market-rate on the 15th of October, 1925. The appellant firm did not pay the amount of the bill with the result that the respondent firm applied to the Bengal Chamber of Commerce for arbitration in terms of the arbitration clause contained in the contract. The matter then came before the Bengal Chamber of Commerce and on the 2nd of February, 1925, the Tribunal of Arbitration of the Bengal Chamber of Commerce made their award, whereby they awarded the Whole ,of the amount claimed by the respondent firm, i.e., Rs. 35,137 8 to the respondents with interest thereon and costs.

4. The appellants thereafter applied to Mr. Justice Buckland for an order for setting aside the award and the contention that was urged before the learned Judge,. was that, having regard to the nature of the case, the appellants should have been allowed an opportunity of adducing evidence before the said Tribunal of Arbitration of the Bengal Chamber of Commerce.

5. In order to appreciate the precise significance of this contention, it is necessary to see, what the appellants put forward before the Bengal Chamber of Commerce in their statement of case. That statement was in reply to statement of case sent in. by the respondents. The respondents in their statement made it, perfectly clear that their, bill had been made out on the footing of the difference in price of the goods between the contract rate and the market rate on 15th of October, 1925, and that in their view the 15th of October, 1925, was the due date for ascertainment of damages in the events which had happened The appellant firm, in their statement of case to the Bengal. Chamber of Commerce by way of reply stated as follows:

We contend that the Buyers have not suffered any damages and we ask for an opportunity; to place evidence on the basis of the 30th September 1925, after the Buyers have submitted a revised statement of their alleged claim The claim for Rs. 35,437-8 propounded on an imaginary and fictitious basis is-wholly untenable and absurd on, the, face of it and the arbitrators, we humbly submit, will find no difficulty in rejecting the claim. For, assuming for a moment that there was an extension up to 31st October, no claim can be put forward on the basis of the 15th October as the alleged due date of delivery of which was never the due date according to the case of both parties.

6. In these circumstances the learned Judge had to consider whether, having regard to the rules of the Bengal Chamber of Commerce, it was incumbent upon the Tribunal for Arbitration of the Bengal Chamber of Commerce to give the appellants, an opportunity of adducing oral evidence.

7. No doubt, from time to time there have been cases where it has been held that there must arise occasions when having regard to the facts involved it is incumbent on the Bengal Chamber of Commerce to give parties suitable opportunities of adducing evidence. (See, for instance, the case of David Sasoon v. Karnidass, dated it he 9th August, 1921). But, as indicated above, each case must depend on its own facts and in this case the appellants had, in my opinion, abundant opportunities of stating in their case to the Bengal Chamber of Commerce what the market rate was on the 15th of October or on any other date and also the evidence in support of such, rate and also of showing that the rate claimed by the respondents was a rate which, having regard to the state of the market on the date mentioned above, could not be allowed. This opportunity the appellants failed to seize and, in these circumstances, bearing in mind the nature of the case and holding as I do that this was not one of those cases where it would be incumbent on the Bengal Chamber of Commerce to hold a formal trial, I think the learned Judge was entirely right in holding that there had been no misconduct whatsoever on the part of the arbitrators and that there were no circumstances which would justify the Court to set aside the award.

8. The appeal is dismissed with costs.

Rankin, C.J.

9. I agree.

10. It appears to me that the nature of the arbitration before the Bengal Chamber of Commerce is such that one is quite safe in saying that prima facie it is not necessary for the arbitrators to hear oral evidence about market rates, which are as a rule well within their own knowledge and within the special experience for which arbitrators are selected. That proposition in sufficient, in my judgment, too decide the question.

11. I agree that this appeal must be dismissed with costs.


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