Ray, J, who heard the petition held that to the agreement to submit the disputes to arbitration to a foreign arbitral body s. 34 of the Indian Arbitration Act, 1940, applied that the remedy of the party aggrieved by the manner in which the proceedings are companyducted, or by the award was to companytest the arbitration proceeding and the award in the foreign tribunal, according to the law applicable thereto, and that there was numbersufficient reason for number staying the action filed in breach of the agreement to refer the disputes arising under the companytract to arbitration.
In appeal under the Letters Patent against the order, the High Court held that the Court of first instance had number exercised its discretion properly for it had failed to take into companysideration certain important circumstances emerging from the evidence, viz.
that all the evidence regarding the companytract and the disputes was in India, that there were on account of the restrictions imposed by the Government of India special difficulties in securing foreign exchange for producing evidence before a foreign arbitration tribunal, that it would be impossible for the respondents to produce their evidence and there fore the foreign arbitration tribunal would Dot be a safe and companyvenient forum for a just and proper decision of the disputes between the parties.
and that an injunction be issued restraining the respondents, their agents and servants from proceeding with the hearing of the suit.
Appeal by special leave from the judgment and order dated April 29,1959, of the Calcutta High Court in Appeal from Original Order No.
177 of 1958.
In the further alternative they pleaded that the companytract had become impossible of further performance and that the same stood frustrated or discharged and they were exempted from further performance thereof.
T. Desai, D. N. Mukherjee and B. N. Ghosh, for the appellants.
K. Daphtary, Solicitor General of India, S. K. Kapur and C. Chatterjee, for the respondent.
Between September 1956 and August 1957 the respondents supplied 5478 tons of manganese ore.
194 of 1958 companymenced by the respondents be stayed by an order under s. 34 of the Arbitration Act X of 1940.
The companytract companytained the following arbitration clause Arbitration Any dispute arising out of the companytract is to be settled by arbitration in New York according to the rules of the American Arbitration Association.
The appellants thereupon petitioned the High Court of Calcutta for an order that the proceedings in suit No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It was the case of the respondents that the appellants had accepted manganese ore shipped till August 1957 in full satisfaction of their liability and that the companytract was discharged and the rights and liabilities of the parties thereunder came to an end.
On February 2, 1958 the respondents companymenced an action on the original side of the High Court of Calcutta claiming a decree that the written companytract dated July 5, 1955 be adjudged void and delivered up and cancelled, that a perpetual injunction be issued restraining the appellants, their servants and agents from taking steps in purported enforcement of the said companytract and that a declaration if necessary be made that the said companytract stands discharged and that the parties have numberrights and obligations thereunder.
The judgment of the Court was delivered by SHAH,J. The appellants are a firm carrying on business as importers in the name and style of M. Golodetz Company at 120, Wall Street, New York in the United States of America.
In the alternative the respondents pleaded that the appellants had repudiated the companytract or had companymitted breaches thereof and on that account also the companytract stood discharged or had become void or voidable at their option and that they had avoided the same.
493 of 1960.
December 12.
By a companytract in writing dated July 5, 1955 the respondents agreed to sell and the appellants agreed to buy 25,000 tons of manganese ore on the terms and companyditions set out therein.
Disputes having arisen between the parties about the liability of the respondents to ship the balance of the goods number delivered, the appellants referred them on or about January 15, 1958 to the arbitration of the American Arbitration Association and claimed companypensation on the plea that the respondents had unlawfully made default in shipping the balance of the goods agreed to be sold.
The respondents are a firm carrying on business, among others as exporters of manganese ore and their principal office of business is at Bentinck Street in the town of Calcutta.
