the delivery was to be made every month from january 1951 at the rate of 100000 yards per month under each of these numberes and payments were to be made in cash on delivery each delivery being treated as a separate and distinct companytract.
it was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts 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.
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.
appeal from the judgment and order dated the 24th february 1953 of the high companyrt of judicature at calcutta in appeal from original order number 19 of 1952 arising out of the order dated the 23rd day of august 1951 of the high companyrt of calcutta in its ordinary original civil jurisdiction matter number 157 of 1951.
there were prayers in the plaint for a declaration that the plaint.
the particulars of the goods the price the time of delivery and other terms of the companytract are then set out and 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 commerce 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.
p. khaitan s. n. mukherjea and rajinder narain with him for the appellant.
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 constitution.
off was number a party to the said contracts and that it had numberliability under the same.
there was a further prayer for an injunction restraining the respondent from claiming any damages in respect of the said contracts the writ of summons was served on the appellant on the 23rd of june 1951.
civil appellate jurisdiction civil appeal number 205 of 1953.
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 it sent its bills to the respondent claiming rs.
the judgment of the companyrt was delivered by 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 court passed on an application under section 34 of the arbitration act.
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 contract by reason of the fact that it described itself as broker.
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 a 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.
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 couched 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.
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.
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.
the numberes were signed by the respondent moran and companypany describing themselves as brokers.
c. setalvad attorney general for india a. n. sen s. sawhney and s. p. varma with him for the respondents.
numberember 1.
the bought numberes companymenced thus dear sirs we have this day bought by your order and on your account from our principals.
