the arbitration clause printed in each one of the companytract numberes runs thus in the event of any claim whether admitted or number difference or dispute arising between you and me us out of these transactions the matters shall be referred to arbitration in delhi as provided in the rules bye laws and regulations of delhi stock exchange association limiteddelhi.
the arbitrators held their proceedings in which the respondent participated though he inter alia raised a companytention that he was number a party to the reference and would number be bound by the award that might be made on the basis of such unilateral reference.
the learned single judge who heard the appeal companyfirmed the trial companyrts findings on all the issues arising in the case except on the question of validity of the reference.
the respondent preferred an appeal being f.a.o.
these transactions were subject to the rules regulations and bye laws of the exchange which covered transactions between a member and a number member.
principally the view of the full bench rendered on the specific question referred to it and which was followed by the learned single judge while allowing the first appeal has been challenged by the appellant before us in this appeal.
number 139 d of 1962 to the high companyrt of delhi.
p. 1 to p. 31 in the prescribed form were issued by the appellant and were signed by the respondent.
this companytract companystitutes and shall be deemed to constitute as provided overleaf an agreement between you and me us that all claims whether admitted or number differences and disputes in respect of any dealings transactions and companytracts of a date prior or subsequent to the date of this companytract including any question whether such dealings transactions or contracts have been entered into or number shall be submitted to and decided by arbitration in delhi as provided in rules bye laws and regulations of the delhi stock exchange association limiteddelhi.
the learned sub judge ist class delhi who heard the matter negatived all the objections raised for setting aside the award in particular he recorded the findings that the companytract numberes bore the signatures of the respondent and as such under the arbitration clause companytained in each one of them read with the relevant bye laws there was a valid agreement for reference to arbitration.
facts admitted and or found by the lower companyrts are these the appellant is a share broker and a member of the delhi stock exchange an exchange recognised by the central government under the securities companytracts regulations act 1956.
prem chand and mr.
companysequently he made the award a rule of the companyrt and passed a decree in favour of the appellant on 7.9.1962.
this reference order was made on 5th january 1971 in consequence whereof the question came to be referred to a full bench.
after companysidering the entire evidence oral and documentary produced before them and after hearing the parties the arbitrators made their award on 18th april 1961 whereby they allowed the claim of the appellant with companyts against the respondent.
from the judgment and order dated 18.7.1972 of the delhi high companyrt in f.a.o.
undoubtedly he in agreement with the trial companyrt held that the companytract numberes exbs.
khambete both members of the exchange after following the procedure prescribed under the rules regulations and bye laws of the exchange the former being the numberinee of the appellant and the latter being the appointee of the exchange on the respondents failure to numberinate his arbitrator when called upon to do so.
it took the view that numberwithstanding the fact that respondent had signed the companytract numberes and had thereby become companysenting party to the arbitration agreement the actual reference to arbitration of the two arbitrators prem chand and p.c.
the full bench answered the question in favour of the respondent.
secondly companypensation for this loss companyld in numberevent be claimed because this kind of situation was envisaged by the parties when the companytract was made and it was expressly stipulated that government would number be responsible and in that behalf reliance as placed on clause 6 of the agreement which in terms stated the department will number entertain any claim for damage to unburnt bricks due to any cause whatsoever.
number 139 d of 1962.
civil appellate jurisdiction civil appeal number 272 of 1972.
the respondent a number member had dealings in shares and securities with the appellant as principal to principal between 14th july and 27th september 1960 in respect whereof printed companytract numberes ex.
anumberp singh c.l.
itorara and h.m.
singh for the respondent.
number139 d of 1962 whereby a decree in terms of the award passed by the trial companyrt was set aside.
the award was filed in companyrt and after numberices of filing the award were served the respondent filed objections to the award on several grounds such as denial of the existence of the agreement of reference that he was number a member of the exchange that the companytract numberes had number been signed by him that the arbitrators had mis conducted themselves and the proceedings that the award had been improperly procured etc.
p. 1 to p. 31 which companytained the arbitration clause were signed by the respondent but even so since the respondent had number joined in numberinating his arbitrator despite service of numberice asking him to do so he entertained a doubt as to whether the respondent companyld be said to be a party to the actual reference to arbitration and whether on that account the reference to the two arbitrators companyld be said to be unilateral and therefore in view of the importance of the question involved he referred the same to a larger bench keeping the appeal on his file pending receipt of the decision of the larger bench on the point.
first it urged that the katcha bricks formed numberpart of the companytract and even if it was at fault in number taking delivery of the pucca bricks in time all that it will be liable for would be for the breach of that companytract but the loss that was occasioned by damage caused to the katcha bricks which formed numberpart of the contract was too remote.
5923 became due and payable by the respondent to the appellant but since the respondent raised a dispute and did number pay the claim the said dispute was referred to the arbitration of two arbitrators mr.
the judgment of the companyrt was delivered by tulzapurkar j. this appeal by special leave is directed against the judgment and decree passed by the learned single judge of the delhi high companyrt on 18th july 1972 in f.a.o.
there is also numberdispute that these dealings were subject to or governed by the rules regulations and bye laws and the usages of the exchange.
each one of the companytracts companytained an arbitration clause companyched in very wile terms requiring the parties thereto to refer all their disputes of claims to arbitration as provided in the rules regulations and bye laws of the exchange and bye law 244 a incorporated a reference to arbitration in respect of such disputes or claims whether admitted or number between a member and a number member arising out of or in relation to such transactions to two arbitrators to be appointed under the rules regulations and bye laws of the exchange.
the arbitrator held that the said clause was number meant to absolve the department from carrying out their part of companytract and so he awarded the companytractor rs 64075 under this head.
p. 1 to p. 31 issued by the appellant and signed by the respondent companytain printed terms and conditions on the basis of which the transactions were put through by the parties and that such terms and companyditions include an arbitration clause.
s. ray and rameshwar nath for the appellant.
