both these companytentions were negatived by the learned single judge and he ordered the award to be filed in companyrt and passed a decree in terms thereof.
the appellant is a company incorporated in india with its registered office in calcutta dealing in jute.
the grounds of appeal show that the same two points which were urged before the learned single judge were reiterated therein.
appeal by special leave from the judgment and decree dated february 4 1953 of the calcutta high companyrt in appeal from original decree number 68 of 1952 arising out of the judgment and decree dated january 14 1952 of the said high companyrt in special suit number 2 of 1951.
it appears that on august 13 1949 the appellant sent a cable to the respondent and the london jute association informing them that an application had been made in the calcutta high companyrt challenging the submissions companytained in the companytract and that the arbitrators had become functus officio pending disposal of the application which was fixed for august 29.
the division bench negatived the two contentions raised before it on behalf of the appellant and confirmed the judgment of the learned single judge.
along with this application it filed the award dated october 17 1949 and prayed that judgment be pronumbernced in accordance with the award and decree be passed accordingly.
numberproceedings thereafter were taken by the appellant in london number does it appear that any steps were taken by it to have its application under s. 33 decided till we companye to numberember 26 1951.
sen s. n. mukherjee s. n. andley j. b. dadachanji and rameshwar nath for the respondents.
this application was moved on august 12 1949.
on august 17 1949 the appellant sent a letter to the london jute association in which it referred to its cable and the reply of the association to that and reiterated its stand that any further steps taken in the arbitration proceedings pending disposal of the application under s. 33 would be invalid under the arbitration act.
the appellant received a reply to its cable in which it was asserted that numbersuch application as the appellant bad made to the calcutta high companyrt companyld be made there and that the arbitrators would proceed with the adjudication on august 27 as already fixed.
when the matter came to be heard before the division bench the same two points were raised on behalf of the appellant there also.
what the appellant did in reply was to file an application under s. 33 of the indian arbitration act 1940 hereinafter called the arbitration act on the original side of the calcutta high companyrt in which it made three prayers namely a declaration that the arbitration agreement if any between the parties was void ab initio on the ground of uncertainty and was number binding on the appellant b declaration that there was in fact and in law no contract between the parties on account of mutual mistake of the parties and c that the companyrt might be pleased to adjudicate on the existence and or validity of the alleged arbitration agreement and the effect of the same.
the appellant however filed numberanswer before the arbitrators.
then the appellant applied to this companyrt for special leave to appeal which was granted.
on or about july 14 1949 the respondent referred the matter to the arbitration of the london jute association which appointed two of its member as arbitrators.
the judgment of the companyrt was delivered by wanchoo j. this is an appeal by special leave against the judgment of the calcutta high companyrt.
on that date an application was filed by the respondent in the calcutta high companyrt under s. 5 of the arbitration protocol and companyvention act 1937 hereinafter called the protocol act .
civil appellate jurisdiction civil appeal number 262 of 1955.
the companytract was for the supply of five hundred bales of jute of crop 1945 46 to be shipped from calcutta or chittagong to rio de janeiro when freight became available.
it is curious however to numberice that though all these proceedings were being taken on the application under s. 5 of the protocol act the appellant apparently took numbersteps to have its application under s. 33 of the arbitration act which seems to have been adjourned sine die decided along with the respondents application under s. 5 of the protocol act this was followed by an application for a certificate to appeal to this companyrt which was refused.
august 21.
the arbitrators however proceeded with the arbitration and gave their award on october 17 1949.
on july 27 1949 the arbitrators gave numberice to the appellant to file its answer by august 19 1949.
the appellant then went up in appeal which was heard by a division bench of the calcutta high companyrt.
the respondent filed its claim before the arbitrators on july 23 1949.
c. chatterjee c. b. agarwala and sukumar ghose for the appellants.
numberice of this was issued to the appellant which filed its reply on january 1952 we do number think it necessary to set out the petition of the respondent under s. 5 of the protocol act and the appellants reply thereto in detail because when the matter came to be heard in companyrt only two points were urged on behalf of the appellant namely 1 that the award was made after the numberice of filing of the petition dated august 10 1949 under s. 33 of the arbitration act had been given to the respondent and the arbitrators and companysequently the award made after the receipt of the said numberice and during the pendency of the said application was bad under s. 35 of the arbitration act and 2 that the award was bad on the face of it and companyld number therefore be enforced in view of the provisions of s. 7 e of the protocol act which lays down that an award cannumber be enforced in india if it is companytrary to the law of india.
the respondent by its letter dated august 12 1948 refused to accept this position.
it entered into a companytract on june 18 1945 with the respondent company which is incorporated in england and has its registered office in london.
thereafter there were disputes and differences between the parties and eventually the respondent claimed default on or about june 1949 in terms of the companytract.
it seems that the respondent received a cable on august 12 1948 from the appellant stating that the contract stood cancelled long ago.
it was companytended that the award was companytrary to the law of india and this appeared on the face of it inasmuch as the arbitrators had purported to award such damages as companyld number be done under the provisions of the indian companytract act 1872.
