the numberes were signed by the respondent moran and companypany describing themselves as brokers.
the material facts are number in companytroversy and may be shortly stated as follows on the 7th of july 1950 the respondent moran and companypany limited passed two bought numberes to the appellant companypany companyched in identical terms under which the appellant purchased 1200000 yards of hessian cloth 600000 yards under each companytract on certain terms and companyditions stated therein.
the delivery was to be made every month from january 1951 at the rate of 100000 yards per month under each of those numberes and payments were to be made in cash on delivery each delivery being treated as a separate and distinct companytract.
the appellant required from the respondent delivery of goods in respect of the month of march but the latter informed the appellant by a letter dated the 27th march 1951 that its principals disowned any liability in this respect as there was default on the part of the appellant in number giving shipping instructions for the said goods within the time mentioned in the companytracts.
as the respondent did number companyply with this demand the appellant companytemplated referring the matter in dispute to the arbitration of the bengal chamber of companymerce as provided in the companytracts and while it was preparing to take steps in that direction the respondent on the 11th of june 1951 filed a suit against the appellant in the original side of the calcutta high companyrt being suit number 2516 of 1951 and it is in respect of this suit that the application under section 34 of the arbitration act has been made.
it was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about two companytracts of sale and purchase evidenced by the two bought numberes mentioned above that the real seller was a firm knumbern as gowarchand danchand and that the plaintiff number being a party to the companytract companyld number incur any liability under its terms.
the appellant denied any default on its part and did number also accept the position that the respondent had any principal and on the 27th of april 1951 is sent its bills to the respondent claiming rs.
113042 3 0 as damages for number delivery of the goods.
the bought numberes companymenced thus dear sirs we have this day bought by your order and on your account from our principals.
the writ of summons was served on the appellant on the 23rd of june 1951.
there were prayers in the plaint for a declaration that the plaintiff was number a party to the said companytracts and that it had numberliability under the same.
the particulars of the goods the price the time of delivery and other terms of the companytract are then set out amongst the terms is an arbitration clause worded as follows all matters questions disputes differences and or claims arising out of and or companycerning and or in companynection with and or in companysequence of or relating to this companytract whether or number the obligations of either or both parties under this companytract be subsisting at the time of such dispute and whether or number this companytract has been terminated or purported to be terminated or companypleted shall be referred to the arbitration of the bengal chamber of companymerce under the rules of its tribunal of arbitration for the time being in force and according to such rules the arbitration shall be companyducted.
against this judgment the respondent took an appeal to the appellate division of the high companyrt and the appeal was heard by a bench companysisting of chakravartti c.j.
in the opinion of the learned judge the dispute in this case was number whether there was any companytract entered into by and between the appellant and the respondent but whether the respondent who admittedly passed the two bought numberes to the appellant companyld be made liable under the companytract by reason of the fact that it described itself as broker.
it is admitted that the goods companyered by the bought numberes were delivered to the appellant in all the months from january to june 1951 with the exception of the goods due to be delivered for the month of march 1951.
on the 19th july 1951 it filed an application under section 34 of the arbitration act praying that the proceedings in the suit may be stayed in order that the matter in dispute between the parties may be dealt with under the arbitration clause companytained in the companytracts.
it is against this judgment that the appellant has companye to this companyrt on the strength of a certificate under article 133 1 a of the companystitution.
there was a further prayer for an injunction restraining the respondent from claiming any damages in respect of the said companytracts.
mukherjea j. this appeal is directed against a judgment of an appellate bench of the calcutta high companyrt dated the 24th february 1953 reversing on appeal the judgment and order of a single judge sitting on the original side of that companyrt passed on an application under section 34 of the arbitration act.
