JUDGMENT

Asutosh Mookerjee, J. - This is an appeal from a judgment of Mr. Justice Greaves, whereby he has refused to set aside an arbitration award. The events which led up to the award in question lie in a narrow compass and may be briefly recited.

2. On the 4th August 1918, the plaintiffs-appellants bought from the defendant-respondent 30 bales of dhotis. The defendant himself had purchased the goods from an importer, Lakshmichand Jagannath, under a contract, dated the 29th July 1918. The terms of the contract between the plaintiffs and the defendant were as follows: "We sold the goods as were bought by us of Lakshmichand Jagannath Batta (allowance), chafage, all terms according to Bahar (importing) firms, godown due according to Bazar interest, only hire, according to Bhitor (Bazar)" On the 7th January 1919, the defendant instituted a suit in this Court in respect of 27 out of the 30 bales on the allegation that the plaintiffs had wrongfully refused to accept delivery. On the 11th June 1919, the defendant referred to arbitration by the Bengal Chamber of Commerce a similar dispute in respect of the remaining three bales. On the 29th July 1919 an award wan made in his favour and it was filed on the 12th August, 1919. The plaintiffs thereupon instituted the present proceedings and applied for consolation of the award. Mr. Jastice Greaves has refused the application. On the present appeal the validity of the award has been questioned on two grounds first, that the arbitration clause embodied in the contract between the defendant and the importers was not incorporated into the contract between the plaintiffs and the defendant, and, secondly, that even if the arbitration clause be deemed to have been incorporated, the defendant, by reason of the institution of the suit in respect of 27 bales, was not competent to make a reference to arbitration with regard to the three remaining bales. In our opinion, both these contentions are well founded and the award must be set aside, as made without jurisdiction.

2. As regards the first point, we have to consider the terms of the arbitration clause contained in the contract between the defendant and the importers. The fourth clause of that contract was in these terms: Any dispute or claim under this contract is to be settled by the Bengal Chamber of commerce or, at the option of the seller, by two merchants on the "Bengal Chamber's list, one to be chosen by each party." Now, if we read the contract between the plaintiffs and the defendant, as also the contrast between the defendant and the importers, it is impossible to hold that the arbitration clause contained in the latter has become incorporated in the former by virtue of the expression all terms according to the importing firm." Reliance has been placed by the appellants upon the decision of the House of Lords in the case of Thomas of Co. Limited v. Portsea Steamship Company, Limited (1912) A.C. A.C. 1 : 81 L.J.P. 17 : 105 L.T. 257 : 12 Asp M.C. 23 : 55 S.J. 615, where the decision of the Court of Appeal in Hamilton of Co. v. Mackie & Sons (1886) 5 T.L.R. 677 was approved. In the latter case, a bill of lading contained the words "all other terms and conditions as per Charter-party" and the Charter-party contained an arbitration clause. In an action by the ships owners against the consignees of the cargo and, the endorsees of the bill of lading, the Court refused a stay, on the ground that the arbitration clause in the Charter-party was not incorporated in the bill of lading. Lord Esher, M.R., said that where in a bill of lading there was such a condition as "all other conditions as per Charter party," the conditions of the Charter-party must be read verbatim into the bill of lading, as though they were there in extenso. Then, if it was that any one of the conditions of the Charter-party on being so read, was inconsistent with the bill of lading, they were intensible and mast be disregarded. The arbitration clause referred to disputes aris