Judgement

BACHAWAT, J. : The appellant and the respondent entered into three contracts whereby the appellant agreed to buy and the respondent agreed to sell 352 bales of cloth. Originally the contracts provided for delivery of the goods in May/June, 1948. The parties subsequently agreed that part of the goods would be delivered in June, 1948 and the balance goods would be delivered in July, 1948. The dispute between the parties concerns an item of 176 bales and another item of 461/2 bales. The respondent claimed from the appellant a sum of Rs. 1,72,856 made up, of (1) Rs. 84,006-2-0 for loss in respect of 176 bales resold by the respondent with the consent of the appellant, and (2) Rupees 88,849-14-0 for the balance of the price of 461/2 bales bargained and sold but not taken delivery of by the appellant. On February 6, 1950, the respondent instituted against the appellant Civil Suit No. 10-A of 1950 in the Court of the District Judge Indore, claiming the aforesaid sum of Rs. 1,72,856, interest thereon from July 1, 1948 up to January 30, 1950, godown rent, interest from the date of the institution of the suit and costs. On or about May 15, 1950, the disputes in the suit were referred to the sole arbitration of Sri S. N. Samvatsar, Advocate. Before the arbitrator, the respondent did not press its claim for godown rent and for interest prior to the institution of the suit, but pressed its claim for the aforesaid sum of Rs. 1,72,856 and for interest from the date of the institution of the suit till recovery of the amount and costs. One of the submissions of the appellant before the arbitrator was that in view of a certain control order it could not take delivery of 461/2 bales, and in case it was held liable for the contract price, it should be allowed a rebate for the current market price on its giving up its claim to the bales. After hearing the parties, the arbitrator made his award on November 30, 1961. The award recited the disputes between the parties and their respective contentions and submissions and then directed that

"the defendant should pay Rupees 1,17,108-7-9 in all to the plaintiff and to give up claim to 461/2 bales. The defendant should pay interest on the above sum to the plaintiff at the rate of six annas per cent per month from this day till the day of payment. Both the parties to bear their own costs. The plaintiff to deposit arbitration fees which amount to Rs. 1,740 and to recover half of its amount, Rs. 870 from the defendant."

The award was filed in Court. The appellant filed an application to set aside the award. By its order, dated December 22, 1952, the District Judge, Indore, dismissed the application, and passed a decree on the award. An appeal from this order preferred by the appellant was dismissed by the High Court of Madhya Pradesh, Jabalpur. The correctness of the judgment of the High Court is challenged in this appeal by special leave.

2. Counsel for the appellant submitted that the award should be set aside for three reasons. He submitted, firstly, that there were errors of law apparent on the face of the award. Now, the claim of the respondent consisted of two items. The first item of claim was Rs. 84,006-2-0 for loss on resale of 176 bales. The respondent s case was that 176 bales were resold with the consent of the appellant and under the authority given by it in a letter, dated July 10, 1948. The appellant s case was that no authority for the resale of all the 176 bales was given by the letter and the resale was not made with its consent. The second item of claim was for Rs. 88,849-14-0 on account of the price of 461/2 bales. The respondent s case was that 461/2 bales were sold and the property in the goods had passed to the appellant on June 30, 1948 and yet the appellant had not taken delivery of the bales. The appellant s case was that the contract in respect of 461/2 bales remained executory and it stood cancelled on the passing of the freezing order, dated July 30, 1948 by the Textile Com