Arbitrators are not required to give prior notice of their intention to proceed ex parte on the first date of hearing, as per Rule 20 of the Bengal Chamber of Commerce Rules. Additionally, arbitrators are not bound to give notice if they are satisfied that a particular party does not intend to appear and is deliberately keeping away.

CHAKRAVARTTI, C. J.

( 1 ) THIS is an appeal from a judgment and order of P. B. Mukharji, J. dated the 27th of June, 1956, whereby the learned Judge dismissed the appellant's application for setting aside the award made against it by the Bengal Chamber of Commerce.

( 2 ) THE appellant was the seller of a certain quantity of jute under a contract dated the 3rd of September, 1954, and the respondent was the purchaser. Shipment or despatch by rail of the goods was to be between the 3rd of September and October 1954. The appellant's case is that there was a fire and that it was unable to despatch the jute within the stipulated time and that although it appealed to the respondent for some extension of the time within which the contract might be performed, no extension was granted. The respondent then made a claim for Rs. 24,500/- as the difference between the market price and the contract price of the jute concerned on the date of the breach, but the appellant refused to pay the same. A dispute having thus arisen, the respondent referred it to the arbitration of the Bengal Chamber of Commerce in accordance with the agreement contained in the contract. In due course, the Chamber appointed an arbitral tribunal and the tribunal fixed the 26th of July, 1955, as the date for holding the arbitration. The usual notices were issued to the parties including the appellant. On the 25th of July, the petitioner asked for an adjournment by a letter on the ground that its representative, one Mr. Jethmal Nahata, had fallen ill and that, therefore, it would not be possible for it to appear or produce evidence at the meeting fixed for the next day. No adjournment was granted and the arbitrators having proceeded to arbitration on that day, closed the proceedings. They made their award on the 8th of August, 1955.

( 3 ) THE application for setting aside the award was made principally on two grounds. It was alleged that the contract for the sale of jute was void, inasmuch as it was a contract in contravention of the Forward Contracts (Regulation) Act, 1952 and consequently the arbitration agreement contained in the contract was also void. According to the appellant, the whole proceedings of arbitration was thus illegal and the award was liable to be adjudged null and void. The second ground which was spread over Clauses (e) and (f) of the petition was that the arbitrators had misconducted themselves by not granting an adjournment on the 26th of July, 1955, and that they having proceeded ex parte without giving any peremptory notice to the appellant that they would proceed to decide the case in his absence if he failed to appear, the award made by them could not be sustained.

( 4 ) THE learned Judge has placed it on record that, before him, Mr. Subimal Roy who represented the appellant abandoned all the grounds taken in the petition except the ground taken in clauses or sub-paragraphs (e) and (f) of paragraph 25, Those two grounds, as I have already stated, are grounds on which the award was attacked, because it was ex parts and because, according to the appellant, no ex parte award could be made unless the arbitrators had given previous intimation of their intention to hear and determine the case in the absence of the parties, if they failed to appear.

( 5 ) SO far as the first ground is concerned, I do not think that it is open to the appellant to urge it in appeal. It is quite true that a ground of law, particularly one which goes to the legal validity of the entire proceedings, can be taken for the first time at any stage, but, in my view, when a party has raised such a ground and then deliberately abandoned it, he cannot be allowed to raise it again, before the court of appeal. This was not a case in which the learned Counsel for the appellant had merely omitted to urge certain points taken in the petition. He expressly abandoned the ground of the illegality of the contract and the learned Judge expressly placed that fact on record. In those cir

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