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HIGH COURT OF CALCUTTA
P. B. Mukharji
D. L. MILLER AND CO. LTD. - Appellant
Versus
DALURAM GOGANMULL - Respondent
Award 109 Of 1954
Decided On : MARCH 16, 1956
ARBITRATION - Award - Setting aside - Grounds - Violation of consent order remitting previous Award - Denial of opportunity to answer written statement - Denial of right to cross-examine - Principles of natural justice - Contractual justice - Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce.
Fact of the Case:
The applicant, D. L. Miller and Co. Ltd., filed an application to set aside Award No. 11 of 1955 of the Bengal Chamber of Commerce and Industry dated 4-1-1955, claiming that the Court of Arbitration was not properly constituted, that they were not given an opportunity to answer a written statement submitted by the respondent, and that they were denied the right to cross-examine the respondent's representative.
Finding of the Court:
The Court held that the consent order remitting the Award did not impose any terms saying that the rules of the Bengal Chamber of Commerce and Industry will not be applicable at all or that the conduct of such Arbitration will not be according to such rules. The Court also held that the typed list of points submitted by the respondent was not a written statement of a party's case and that the Arbitrators were right in saying that it was not necessary to file any written reply to such typed list. The Court further held that the Arbitrators did not violate the rules and principles of natural justice by denying the applicant's representative the right to cross-examine the respondent's representative, as the Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce do not give a party an unqualified and unfettered legal right to cross-examine.
Issues: 1. Whether the Court of Arbitration was properly constituted? 2. Whether the applicant was given an opportunity to answer the written statement submitted by the respondent? 3. Whether the applicant was denied the right to cross-examine the respondent's representative?
Ratio Decidendi: 1. The consent order remitting the Award did not impose any terms saying that the rules of the Bengal Chamber of Commerce and Industry will not be applicable at all or that the conduct of such Arbitration will not be according to such rules. 2. The typed list of points submitted by the respondent was not a written statement of a party's case and the Arbitrators were right in saying that it was not necessary to file any written reply to such typed list. 3. The Rules of the Tribunal of Arbitration of the Bengal Chamber of Commerce do not give a party an unqualified and unfettered legal right to cross-examine.
Final Decision: The Court dismissed the applicant's application to set aside the Award and ordered the applicant to pay the costs of the application, including all reserved costs.
( 1 ) THIS is an application by D. L. Miller and Co. Ltd. to set, aside Award No. 11 of 1955 of the Bengal Chamber of Commerce and Industry dated 4-1-1955 and to declare it null and void. Mr. Meyer on behalf of the applicant has, urged only three grounds and no others.
( 2 ) HIS first point of objection is that the Court of Arbitration which has given the Award in this case was not a properly constituted Court on the ground that it violated" the consent order remitting the previous Award. His second point of objection is that on 3-1-1955 the Arbitrators received a written statement from the respondent which the applicant was given no opportunity to answer. His third point of objection is that on 3-1-1955 when evidence was being taken, the applicant's representative was denied the right to cross-examine the evidence of the respondent's representative.
( 3 ) NO other objection has been urged before me.
( 4 ) BEFORE discussing these objections and determining them; the facts of the dispute between the parties and the history of the Arbitration in this matter have to be briefly stated. On 10-4-1953 the applicant agreed to purchase a certain quantity of jute to be delivered in April-May, 1953. It is the applicant's case that the respondent delivered only a part of that jute and failed to deliver the balance and that even those goods which were delivered were not of the contracted quality. The applicant thereupon claimed Rs. 7,300/- as damages for inferior quality and Rs. 29. 52q/- as damages for non-delivery. The respondent claimed Rs. 37,272/- being the price of the goods delivered. Their dispute and differences were referred to the Bengal Chamber of Commerce. On 22-2-1954; an Award was made by the Bengal Chamber of Commerce directing the applicant to pay to the respondent Rs. 37,245/-and the respondent to pay to the petitioner Rs. 18,450/ -. An application was then made by the present applicant on 24-5-1954 to set aside that Award. On 33-7-1954, by consent of parties the following order was made by Bachawat J. :"1. The Award is remitted to the Tribunal of Arbitration Bengal Chamber of Commerce and Industry for reconsideration by a Court to be newly constituted consisting of persons different from those who made the Award. 2. The Award shall be made within five months from the date of receipt of the paper of the Bengal Chamber of Commerce and Industry. "by consent, the costs of and incidental to that application as. well as of the judgment upon Award were reserved.
( 5 ) THE papers thereafter reached the Bengal Chamber of Commerce from this Court on 4 or 5-8-1954. On 23-8-1954. a court was appointed by the Registrar of the Bengal Chamber of Commerce. One of the Arbitrators having expressed his inability to serve on the Court, the Court was re-constituted under Rule 10 of the Bengal Chamber of Commerce by appointing somebody else in his place. The intimation of the re-constituted Court was sent to the parties on 3-9-1954. On 27-9-1954, statement was filed by respondent Daluram Goganmull, and Rs. 400/- was deposited towards tne fees of the Tribunal. On 6-11-1954, counter-statement was filed by the applicant. The respondent then filed further statement on 19-11-1954. On 23-12-1954 the Bengal Chamber of: Commerce gave notice to the parties for a meeting to be held on 3-1-1955. The Arbitrators held their meeting on that day. On the following day, 4-1-1955, the Award was made by the Bengal Chamber of Commerce. Thereafter on the 18th March, 1955 the present Notice of Motion was taken out to set aside thia Award. By a process which I have not been able to understand, thia matter was kept pending for one whole year allegedly for the purpose of using affidavits which, in my view, should not have taken more than three weeks at the outside.
( 6 ) I shall take up Mr. Meyer's first objection about the invalidity of the Court of Arbitration. His submission was that by the consent order of 13-7-1954, a new type of Arbitra
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