1. This is an application by one Nabin Chandra Saha, a merchant, that the award purported to have been made by the Bengal Chamber of Commerce or arbitrators appointed by them, dated 25th March 1904, and filed on 27th March 1914, should be set aside and that Messrs Sinclair Murrary and Co., respondents, should be restrained from enforcing the same. The petition mentions the award in the singular number, although there are two. This was pointed out to the learned counsel appearing on behalf of Messrs Sinclair Murray and Co. and the petitioner asked for leave to put in a second petition. Such application has been filed subject to the objection of the other side. There were two contracts entered into between the petitioner and Messrs Sinclair Murray and Co., dated 3rd April 1913. The contracts contained an arbitration clause in these terms: “Any dispute arising out of these contracts shall be referred to the arbitration of the Bengal Chamber of Commerce, whose decision should be accepted as final and binding on both the parties.” Disputes regarding delivery arose in September 1913. The respondents submitted their difference bills on 9th September 1913 and the petitioner having refused to pay, the respondent wrote to the registrar of the tribunal of the Bengal Chamber of Commerce on 16th January 1914. In their letter they asked that the Chamber was to fix the market rates of 31st August and the 30th September, and to award the difference due to them for the breach. The registrar wrote to the petitioner on 20th January 1914 about the submission made which elicited no reply from the petitioner. The registrar wrote again informing the petitioner that he had been directed by the Court constituted to adjudicate that unless he (the petitioner) sent in his case before 12th February, the arbitration would be proceeded with without any further reference. This also elicited no reply. On 14th February the registrar wrote to the petitioner in these terms: “I am directed to state that the arbitration will now proceed.”
2. The petitioner stated that between 6th and 14th February he was seeking legal advice and that he had done nothing. His objections were: (1) that the names of the arbitrators were not disclosed; (2) that no time or place for the hearing was fixed; (3) that no opportunity was given to him to prove his case; (4) that the arbitrators should not have proceeded with the reference ex parte; (5) that the rules were ultra vires and illegal; and (6) that the award was in excess of the claim, that was to say, that the arbitrators had allowed a larger sum and at higher rates than the claim of the respondents, which they submitted in their difference bills. In this application the petitioner did not say that he did not know the rules, but apparently on receipt of the letter from the registrar he went to his legal advisers and sought their help.
3. He could then, if he chose, if he had sufficient grounds, have repudiated the authority of the Bengal Chamber to arbitrate or required the other party to state as to under what rules, if any, or under what manner, the Chamber was going to proceed. From para. 12 of the petition it can be inferred that he had some knowledge of the rules. Of course, it is difficult to come to any conclusion from that paragraph as to when he came to know of the rules, but it is clear that although he was repeatedly written to, he did nothing in the matter and he allowed the persons or the Court appointed to adjudicate to proceed with the reference. It has been held by Harington, J. in Ganges Manufacturing Co. v. Indra Chand . [1906] 33 Cal. 1169. that a person who had submitted to an arbitration of this nature, must be deemed to have known the rules under which the Chamber was going to proceed and that he could not be heard to say that he was not bound by the procedure followed by the Chamber. I am not prepared to agree with that judgment in its entirety. There was no allegation at all that the procedure which was followed was not a regular procedure. So far as the proceedings being ex parte there is no ground of complaint. The petitioner deliberately refused to do anything and there was no duty cast upon the arbitrators to further give him an opportunity of being heard.
4. The serious question in this case however is as regards the award being in excess of the claim. It is clear that the award exceeds the amount mentioned in the difference bills and that the rates allowed by the arbitrators are in excess of the rates demanded by the respondents. On this point I think that the arbitrators have gone in excess of their jurisdiction. I accordingly remit the award to the arbitrators for reconsideration. With regard to the costs of this application, taking all the circumstances into consideration I think that justice will be met by directing each party to bear his own costs.
V.B/R.K
5. Appeal remitted.