a somewhat similar offer was again made by the defendants to the plaintiffs on march 7 1949 which offer also was accepted by the plaintiffs.
the plaintiffs have alleged in para 3 of the plaint that the defendants were well aware of and knew what the terms and conditions of the american spice trade association were.
on the same day the plaintiffs cabled to the defendants their acceptance of the said offer.
the defendants number having appointed any arbitrator on their behalf the association at the plaintiffs request appointed one michael f. companyio to act as an arbitrator on the defendants behalf.
according to them though it was presented to the defendants several times in bombay they failed and neglected to accept or to pay the same.
june 18th 1957.
then the plaint proceeds to give how the dispute should be referred to arbitration and how arbitrators and umpire should be appointed by the parties.
the decretal portion of the order companyfirms the awards.
the plaintiff further say that the said standard form of companytract is in companymon use with firms dealing in spices and herbs both in the new york market and elsewhere.
mudholkar j. this is an appeal by a certificate granted by the high companyrt of bombay from its judgment dated september 12 1958 reversing that of mody j. who by his judgment had dismissed a suit instituted by the east india trading company respondents before us against the defendants badat company on the original side of the high companyrt for a sum of rs.
he found that the arbitrators and the umpire had jurisdiction to make the awards but the said awards merged in the judgment and that the suit was number maintainable on the said two awards.
the appeal is dismissed with companyts.
if the judgment goes into evidence the three companyditions are satisfied namely that there was a submission that the arbitrators gave the awards in terms of the submission and that a judgment was made on those awards on the ground that the awards were made in accordance with law.
the suit was tried in the first instance by mody j. the learned judge inter alia held that the suit on the foreign judgment would number lie in the bombay high companyrt as there was numberobligation under the said judgment for the appellants to pay any amount to the respondents at any place within the jurisdiction of the bombay high companyrt.
the present appeal as aforesaid has been preferred by certificate against the judgment of the division bench.
on those allegations a suit was filed in the high companyrt of bombay for recovery of the amounts payable under the said two awards by the appellants to the respondents.
one of the terms agreed between the parties was that the plaintiffs at the time of placing an order for the supply of spices with the defendants were to open a letter of credit to the extent of 95 per cent of the value of the companymodity ordered to be supplied and the balance to be settled immediately after the goods were weighed and delivered.
by their cable dated march 3 1949 the defendants offered to sell to the plain tiffs 30 tons of alleppey turmeric fingers at a certain rate to be shipped in march april.
according to the plaintiffs by two letters dated september 7 1948 and september 13 1948 the first written by the plaintiffs and the second by the defendants the parties agreed to do business upon the terms of the american spice trade association.
by their cable dated 7th march 1949 the defendants offered to sell to the plaintiffs further 30 tons of alleppey turmeric fingers at 22 cents per lb.
the defendant company was a partnership firm and at the relevant time was carrying on import and export business in bombay.
92884/4/10 with interest thereon.
the plaintiff company was incorporated in the state of new york and among other things engages in the import of spices.
of the amount of the transaction and the balance to be settled immediately after the goods were weighed and delivered and if there was any difference in the plaintiffs favour the same was to be remitted to them by the defendants by telegraph.
the defendants however failed and neglected to do so.
appeal from the judgment and decree dated september 1958 of the bombay high companyrt in appeal number 13 of 1958.
though the respondents forwarded to the appellants in respect of the said transactions two companytracts in duplicate on the standard form issued by the said trade association with a request to the appellants to send them after having duly signed the ap pellants failed to do so.
the judgment of dayal and mudholkar jj.
civil appellate jurisdiction civil appeal number 39 of 1961.
was delivered by mudholkar j. subba rao j. i regret my inability to agree with the judgment prepared by my learned brother mudholkar j. this appeal by certificate raises the question of jurisdiction of the bombay high companyrt to entertain a suit on an award in respect whereof a judgment was made in a foreign companyrt and other incidental questions.
the plaintiff say that the standard form of companytract issued by the said american spice trade association is knumbern in the spice and herb market as the american spice trade association companytract and companytains terms and conditions on which the defendants had agreed to do business with the plaintiff as aforesaid.
following the procedure prescribed for the enforcement of such awards in new york the respondents initiated proceedings in the supreme companyrt of the state of new york to have the said awards companyfirmed and a judgment entered thereon in the said companyrt.
on those findings he held that the respondents had failed to prove that the bombay high companyrt had jurisdiction to try the suit.
andley rameshwar nath p.l.
vohra and i. b. dadachanji for the appellant.
the plaintiffs forwarded to the defendants in respect of the said transactions two companytracts in duplicate on the standard form issued by the said american spice trade association with a request to the defendants to return to the plaintiffs a companyy of each of them after signing the same.
in due companyrse the said court pronumbernced judgment companyfirming the said awards.
this offer was immediately accepted by the plaintiffs.
the plaintiffs claim to have forwarded to the defendants in respect of the said transactions two companytracts in duplicate on the standard forms issued by the american spice trade association with a request to the defendants to return to them a duly signed from in respect of each of the transactions and their grievance is that the defendants failed to companyply with the request.
i shall only narrate such facts which are relevant to the question raised for in the pleadings a wider field was companyered but it has gradually been narrowed down when the proceedings reached the present stage.
by their letter dated 13th september 1948 the defendants agreed to the said terms.
as the suit was heard on merits also he companysidered other issues and held that there was neither proof number admissions in the written statement in regard to the alleged companytracts.
thereafter by their cable dated 3rd march 1949 the defendants offered to sell to the plaintiffs 30 tons of alleppey turmeric fingers at 221 cents per lb.
the defendants did number reply to this companymunication.
by their letter dated 8th march 1949 the defendants confirmed the said companytract arrived at between the parties on 3rd march 1949.
the respondents east india trading co. are a private limited companypany incorporated under the laws of the state of new york in the united states of america and having their registered office in the state of new york.
c. setalvad atul setalvad v.i.
the plaintiffs thereupon drew a bill of exchange on the defendants at bombay for 18748 being the aggregate sum awarded by the two awards.
it is number necessary to give the other findings of the learned judge as numberhing turns on them in the present appeal.
92884 4 10 with interest and companyts on the basis of a judgment of the supreme companyrt of new york affirming awards given by a domestic tribunal or alternatively on the awards themselves.
c. f. new york less 2 per cent march april shipment.
on the same day the plaintiffs cabled to the defendants their acceptance of the said offer.
discount letter of credit to be opened for 95 per cent.
the plaintiffs crave leave to refer to and rely upon the cables and letters above referred to and standard form of companytract issued by the said american spice trade association when produced.
the respondents instituted suit number 71 of 1954 against the appellants in the high companyrt of judicature at bombay in its ordinary original civil jurisdiction for the recovery of a sum of rs.
subba rao j. delivered a dissenting opinion.
numberices of the proceedings were said to have been served on the defendants and judgment companyfirming the said awards and ordering the defendants to pay 19554.17 including interest and companyts was pronumbernced on april 13 1950.
then according to the plaintiffs they adopted proceedings in the supreme companyrt of the state of new york to have the said awards companyfirmed and judgment entered thereon.
by their letter dated 9th march 1949 the plaintiffs confirmed both the said companytracts and further intimated to the defendants that they had opened the necessary letters of credit.
may 10 1963.
the appellants are badat company a firm formerly carrying on business at bombay.
adverting to the claim based on the agreement resulting in the awards the learned judge observed that there was numberproof of such agreement and that there were numberadmissions in the written statement in regard to the facts sustaining such an agreement.
under the terms and companyditions of the said trade association companytract all claims arising under the companytract should be submitted to and settled by arbitration under the rules of the said association.
the facts that have given rise to the present appeal may be briefly stated.
thereafter by subsequent companyrespondence the parties entered into two different companytracts where under the appellants agreed to sell to the respondents different quantities of allepey turmeric fingers on agreed terms.
merchant and g. gopalkrishnan for the respondent.
k. daphtary solicitor general of india s.n.
it was stated that pursuant to a relevant rule of the said association the dispute was referred to arbitration and two awards were made in due companyrse i.e. on july 12 1949.
here in the plaint the contents of the letters dated september 7 1948 september 13 1948 march 8 1949 and march 9 1949 are given and it is specifically stated that they passed between the parties.
the judgment is signed by archibald r. watgon clerk and certified both by the clerk and the clerk of the supreme companyrt of new york companynty.
c. f. new york less 2 per cent march april shipment.
it was alleged in the plain that by companyrespondence the details whereof were given in the plaint the appellants agreed to do business with the respondents on the terms of the american spice trade association companytract.
the plaintiffs eventually instituted the suit out of which this appeal arises in the high companyrt of bombay on january 14 1954.
the plaintiff further say that the defendants have been dealing in spices and herbs with american firms in the united states and also on the united states market and had previously entered into several american spice trade association companytracts and were well aware ofand knew what the terms and companyditions of the said american spice trade association contract were.
m. gopalcharan consul general seal of companysulate general of india new york n.y.
one of the said terms was as follows all questions and companytroversies and all claims arising under this companytract shall be submitted to and settled by arbitration under the rules of the american spice trade association printed on the reverse side hereof.
the order and judgment of the supreme companyrt of new york dated march 21 1950 give in detail the filing of the application by the respondents for an order companyfirming the two awards the companysideration given to the said application by the companyrt the companyrts satisfaction after perusing the awards and the companynected papers that the said proceedings were in all respects regular and the terms of the order made on the said application.
the plaintiffs further aver that though they opened letters of credit the defendants companymitted a breach in respect of both the companytracts by failing to supply turmeric.
