9911796707
TMI Blog1969 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is set out hereunder : "Arbitration - Bengal Chamber of Commerce and Industry, Claims, if any, are to be lodged within 3 days of the arrival of the parcel at the mills". 2. The respondents delivered the contracted goods to the petitioners' said Shree Hanuman Jute Mills. Thereafter disputes and differences arose between the parties. The said disputes were referred to the arbitration of Bengal Chamber of Commerce and Industry. The said Arbitrator having heard the parties and considered the evidence led by the parties before it, made and published an award on June 4, 1968. A copy of the said award has been annexed to the petition and is Annexure "D". Notice under Section 14 (2) of the Arbitration Act 1940 was served upon the parties. The petitioner was served with the said notice on September 21, 1968. 3. Disputes and differences cropped up between the petitioner and its employees since about April, 1967. The employees of the petitioner according to the petitioner, grew violent and disobedient and started violent activities even inside the petitioner's office at No. 8, Dalhousie Square East. The petitioner terminated the services of all employees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner were restrained from preventing or obstructing egress from and ingress to the office rooms of the petitioner. Thereupon, pursuant to the direction of the learned Chief Presidency Magistrate, the police made a report. Upon perusing the said report, the learned Magistrate made an order under Section 144 of the Indian Penal Code on December 13, 1968 upon the employees of the petitioner. Notwithstanding the said order, the petitioner alleges that its partners or employees could not go in or come out of the office premises of the petitioner. Thereupon, the petitioner made an application on December 20, 1968 before the learned Chief Presidency Magistrate for a direction upon the Officer-in-Charge. Section "G" Town to assist and help the petitioner and his men to take out books of account, documents and other papers from the office premises of the petitioner. Pursuant to the order made in the said application, the petitioner under the protection of the police brought out certain books of account and records from its office on December 22, 1968. Even then the petitioner could not bring out all the books and documents. Thereafter, another application was made by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award in the circumstances specified in the said section. Such a decree may be pronounced in the absence of parties; even then it cannot be said that the decree has been passed ex parte (see Subramanian v. Vasudevan, (1950) 1 Mad LJ 237 : A.I.R. 1950 Madras 488; Prafulla v. Panchanan, 50 Cal WN 287 : A.I.R. 1946 Calcutta 427. Motandas Torumal v. Wadhumal, A.I.R. 1948 Sind 74). 11. In the instant case notice under Section 14 (2) was duly served. No application for setting aside the award was made or pending when the judgment and decree was passed. As a matter of fact, time to make such application expired. Therefore, there was no irregularity in passing the said judgment and decree nor can it be said that the said judgment and decree was passed without jurisdiction. 12. In Ganeshmal's case, 55 Cal WN 349 : A.I.R. 1952 Calcutta 10 the ex parte decree was set aside only because the decree was passed irregularly. Notice under Section 14 (2) was not served upon Ganeshmal. The Court in the said case set aside such a decree in its inherent jurisdiction to set right an injustice done by the Court on a party. Such is not the case here. 13. In the case of A.I.R. 1951 Madras 658 (1) j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the contemplation of Section 5 must be a cause which is beyond the control of the party invoking the aid of the section (See Ashutosh Bhadra v. Jatindra Mohan, A.I.R. 1954 Calcutta 238 at p. 239). The cause for delay in making the application which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of Section 5 of the Limitation Act. (See Ramlal v. Rewa Coalfields Ltd., A.I.R. 1962 Supreme Court 361). Where no negligence nor inaction nor want of bona fides can be imputed to the applicant, a liberal construction of the section has to be made in order to advance substantial justice. The applicant has to show sufficient cause for not filing the application on the last day of limitation and must explain the delay made thereafter day by day till the actual date of filing of the application: See A.I.R. 1962 Supreme Court 361 at p. 364 and in particular the following observations made by their Lordships of the Supreme Court: "...............In our opinion it would be immaterial and even irrelevant to invoke general considerations and diligence in construing the words of Section 5. The context seems to suggest that 'within su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to 2nd January, 1969. The applicant has stated as grounds for setting aside of the award that the arbitrators misconducted themselves in refusing to allow the applicant his counterclaim for the sum of ₹ 8301.61. The applicant's case for this counter-claim is that the import duty in respect of the goods was withdrawn at the time when the contracted goods were imported into India. The price in the contract included the import duty and thus the import duty in respect of the said goods for the said sum of ₹ 8301.61 was repayable to the applicant by the respondent. According to the applicant, the respondent pleaded an agreement before the arbitrators, namely, that the respondent was not liable to refund this import duty although it was refundable under the terms of the contract in view of an agreement between A. K. Sarkar of the respondent and M. P. Jalan of the applicant. The said agreement according to the petitioner will also appear from a letter written by the respondent to the applicant, copy whereof has been annexed to the petition and a copy of which letter appears at page 25 of the Annexure. The relevant portion of the said letter appears at page 26 of the Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at does not, in my opinion, entitle the buyer, that is, the applicant to the refund of any part of the price of the goods as stipulated under the contract. There was no such term in the said contract. The contract stipulated that increase or decrease of Import duty would be on buyer's account. That merely states, in my opinion, that if the Import duty was paid by the buyer, the buyer would be entitled to the refund if the Import duty was decreased; if the Import duty was increased, the buyer would be liable to pay the increased part of the Import duty also. The arbitrators merely construed the contract, especially in view of the admitted case that the buyers in the instant case did not pay any part of the Import duty. In my opinion, no agreement, as alleged by the applicant was pleaded either in the statement of claim or urged before the arbitrators by the respondents. In my opinion, in the instant case, the arbitrators were not called upon to take evidence as to the entering into any agreement in order to enable them to come to the finding arrived at by them. The cases of Khusiram Benarasilal v. Mathuradas Goverdhandass reported in 52 Cal WN 826 and Bijoy Singh v. Bilashroy an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
