9911796707
TMI Blog1950 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of 5,000 maunds of jute, which was evidenced by a sold note (Exhibit A), which is in the form of a letter addressed to the respondents, commencing with these words : We have this day sold by your order and for your account to the undersigned, etc. The word undersigned admittedly refers to the appellants, and, at the end of the contract, below their signature, the word brokers is written. On the same day, a brought note (Exhibit B) was addressed by the appellants to the Bengal Jute Mill Company, with the following statement : We have this day bought by your order and for your account from the undersigned, etc. In this note also, the word undersigned refers to the appellants, and, underneath their signature, the word brok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/or in connection and/or in consequence of or relating to this Contract whether or not obligations of either or both parties under this contract be subsisting at the time of such disputes and whether or not this contract has been terminated or purported to be terminated or completed 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 conducted. 4. It is common ground that the respondents, delivered 2,256 maunds of jute under the contract, but the balance of 2,744 maunds could not be delivered within the stipulated period, and, by mutual agreement, time has extended up to the 30th June, 1946 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by the respondents on account of costs. Nearly a year later, on the 19th February, 1949, a petition was presented by the respondents under the Indian Arbitration Act, 1940, to the High Court at Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside. The main point raised by the respondents in the petition was that it was not open to the appellants to invoke the arbitration clause, as the Bengal Jute Mill Company and not the appellants were the real party to the contract and the appellants had acted as mere brokers. The appellants asserted in reply that the allegation made by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al had no jurisdiction to make an award at the instance of a person who was not a principal party to the contract. The appellants thereafter having obtained a certificate from the High Court under section 109(c) of the Code of Civil Procedure, preferred this appeal. 7. It seems to us that this appeal can be disposed of on a short ground. We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not parties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to enforce the contract by virtue of the custom or usage of the trade. In our opinion, the position which was taken up by them may be summed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of or concerning the contract. In a passage quoted in Heyman v. Drawins Ltd. [1942] A.C. 356, Lord Dunedin propounds the test thus : - If a party has to have recourse to the contract, that dispute is a dispute under the contract . Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause. The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract every having been entered into. 9. If, therefore, we come to the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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