Judgement

Appeal (No. 7 of 1926) from an order of the Court of the Judicial Commissioner of Sind in its revisional jurisdiction (April 6, 1925) reversing an order of that Court in its District Court jurisdiction.

By a contract in writing dated December 1, 1919, the respondent agreed to purchase from the appellants "600 bales only American old newspapers, each bale of 5 cwts.," at a named price. The contract contained a clause referring all disputes to the arbitration of two arbitrators in Karachi with power to them to nominate an umpire in the event of disagreement.

Differences, which arose owing to the respondent refusing to take delivery of 400 out of the 600 bales contracted for, were referred under the contract to two arbitrators; upon their disagreeing they nominated an umpire.

On November 8, 1920, the umpire issued his award, which recited that the reference was as to certain

4 Law. Rep. 54 Ind. App. 427 ( 1926- 1927) Saleh Mahomed Umer Dossal V. Nathoomal Kessamal

205

disputes arising between the present parties " under a contract made between them, No. 8/06, dated December 1, 1919." The award contained no further reference to the contract or its terms. It provided that the respondent was to pay to the appellant firm a certain sum, and that upon his doing so the appellant firm should deliver to the respondent " 400 bales old newspapers, arrived per s.s. Kandahar under bill of lading No. E. 118 dated June 23, 1920." There were provisions for the event of a failure to take delivery, also for the costs of the arbitration and for filing the award in Court.

The umpire, at the request of the appellants, applied to the Court of the Judicial Commissioner in its District Court jurisdiction praying that the award might be filed in Court under s. 11, cl. 2, of the Indian Arbitration Act, 1899. An order as prayed was made.

Upon an application to the Court in its re visional jurisdiction the order was reversed and the award set aside.

The learned Judicial Commissioner said that by the terms of the contract each bale was to be 5 cwts., whereas it was admitted that the 400 bales in dispute weighed only 500 lbs. each; the buyers were consequently entitled to refuse delivery. As the award directed the buyers to take delivery of goods which they had not ordered, it was bad on its face, and could be set aside. The lower Court, in their view, in making the order for filing acted illegally, and with material irregularity in the exercise of its jurisdiction; its order could therefore be reversed in revisional proceedings.

An application by the present appellants for a review of the judgment was dismissed.

1925. May 5. Sir George Lowndes K.C. and E. B. Raikes for the appellant firm referred to Champsey Bhara 6c Co. v. Jivraj Balloo Spinning and Weaving Co. (( 1923) L. R. 50 I. A. 324.), mentioning also Landauer v. Asser ([ 1905] 2 K. B. 184.) and Hirji Mulji v. Cheong Yue Steamship Co. ([ 1926] A.

C. 497.)

The respondent did not appear.

May 5. The judgment of their Lordships was delivered by

VISCOUNT SUMNER. In this ease, as the respondent did not appear, their Lordships with the very full assistance of counsel for the appellants have examined it with, as they believe, every care to see whether there is any irregularity, or other matter than that which has been fully argued, to which their attention ought to be directed, but they are satisfied that the only question which can reasonably be raised is whether the Court of the Judicial Commissioner, from which the appeal comes, were or were not right in their decision that the award made in the arbitration between the present parties was bad on its face.

Though it was no part of the proceeding now before the Board, it is the case that after the issue was decided, that is now under appeal, the present appellants applied to have it reviewed, and on that occasion one of the members of the Court, whose judgment is under appeal, said, in refusing the application " It may be admitted for the present p