# SARJU PERSHAD v. RAJA JWALESH\VARI PRATAP NARAIN SINGH AND OTHERS

- **Citation:** [1950] 1 S.C.R. 781
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeal No. LXX of 1949
- **Bench:** Saiyid F Azl Ali, Mehr Chand Mahajan, Mukherjea Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarju-pershad-v-raja-jwalesh-vari-pratap-narain-singh-and-others-152
- **Pages:** 12

## Headnote

781
Practice-Appellate court-Finding of fact depending on credibility of witnesses-Interference-Correct principle.
When there is conflict of oral evidence of the parties on any
matter in issue and the decision hinges upon tbe credibility of the
witnesses, then unless there is some special feature a.bout the
evidence of a particular witness which has escaped the trial
judge's notice or there is a sufficient balance of improbability to
displace his opinion as to where the credibility lies, the appellate court should not interfere with tho finding of the trial judge
on a question of fact.
It would not detract from tbe value to be attached to a trial
judge's finding or fact if the judge does not expressly base his
conclusion upon the impressions he gathers from the demeanour
of witnesses.
The rule is, however, only a. rule of practice and docs not
mean that the court of first instance can be treated as illfallible
in deterrnining which, side is telling the truth or is refraining
from exaggeration.
[Where the High Court reversed a finding of fact arrived &t
by the trial court depending on oral evidence on the ground that
the rule that the appellate court should be slow to differ from
the conclusions arrived at by the trial judge who had seen and
heard the witnesses did not apply to the case as the trial judge
did not ba.se bis conclusions on the impressions created in hie
mind by the witnesses who deposed before him, but upon the
inherent impl'Obabi!ity of
the circumstances deposed to, the
Supreme Court held that the High Court's approach to the case
was not proper and, alter weighing the whole evidence in the
case, reversed the finding of the High Court.]
W. O. Macdonald v. Fred Latimer (A.LR. 1929 P.O. 15 at
p.18), Watts v. Thomas ([1947] A.O. 484 at p. 486), Saraveeraswami
v. Talluri
(A.I.R.
1949 P. C. 32),
Netherlandsche Handel
Maatschappij v. R. M. P. Ohettiar Firm and Others (A.I.R. 1929
P.O. 202, 205), referred to.

## Text

S.C.R.
SUPREME COURT REPORTS
SARJU PERSHAD
v.
RAJA JWALESH\VARI PRATAP NARAIN
SINGH AND OTHERS
[SAIYID F AZL ALI, MEHR CHAND MAHAJAN and
MUKHERJEA JJ.J
781
Practice-Appellate court-Finding of fact depending on credibility of witnesses-Interference-Correct principle.
When there is conflict of oral evidence of the parties on any
matter in issue and the decision hinges upon tbe credibility of the
witnesses, then unless there is some special feature a.bout the
evidence of a particular witness which has escaped the trial
judge's notice or there is a sufficient balance of improbability to
displace his opinion as to where the credibility lies, the appellate court should not interfere with tho finding of the trial judge
on a question of fact.
It would not detract from tbe value to be attached to a trial
judge's finding or fact if the judge does not expressly base his
conclusion upon the impressions he gathers from the demeanour
of witnesses.
The rule is, however, only a. rule of practice and docs not
mean that the court of first instance can be treated as illfallible
in deterrnining which, side is telling the truth or is refraining
from exaggeration.
[Where the High Court reversed a finding of fact arrived &t
by the trial court depending on oral evidence on the ground that
the rule that the appellate court should be slow to differ from
the conclusions arrived at by the trial judge who had seen and
heard the witnesses did not apply to the case as the trial judge
did not ba.se bis conclusions on the impressions created in hie
mind by the witnesses who deposed before him, but upon the
inherent impl'Obabi!ity of
the circumstances deposed to, the
Supreme Court held that the High Court's approach to the case
was not proper and, alter weighing the whole evidence in the
case, reversed the finding of the High Court.]
W. O. Macdonald v. Fred Latimer (A.LR. 1929 P.O. 15 at
p.18), Watts v. Thomas ([1947] A.O. 484 at p. 486), Saraveeraswami
v. Talluri
(A.I.R.
1949 P. C. 32),
Netherlandsche Handel
Maatschappij v. R. M. P. Ohettiar Firm and Others (A.I.R. 1929
P.O. 202, 205), referred to.
APPELLATE JURISDICTION: Civil Appeal No. LXX
of 1949.
Appeal from the judgment of the Allahabad High
Court (Verma and Yorke JJ.) dated the 22nd April,
1943.
JOO
1950
Nov. 1!.
L
782
SUPREME COURT REPORTS
[1950]
t95o
M. C. Setalvad, Attorney-General for India (Sri
.-
Narain Andley, with him), for the appellant.
SarJU Pershad
L
.
(H j U
·
'th h' ) f
th
•.
P.
. Banerjee
. .
mrigar, w1
1m , or
e
Raia
respondents.
Jwaleshwari
Pratap Narain
1950. November 14.
The judgment of the Court
S.ngh .t Others was delivered by
Mukherjea J.
MuKHERJEA J.-This is an appeal against a judgment and decree of a Division Bench of the Allahabad
High Court dated April 22, 1943, which reversed on
appeal those of the Civil Judge of Basti dated 6th
of November 1939.
The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present
appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The mortgage deed
is dated the 8th of March 1926 and was executed by
Raja Pateshwari Partap Narain Singh, the then holder
of Basti Raj which is an impartible estate governed by
the rule of primogeniture, in favour of Bhikhiram Sahu,
the father of the original plaintiff Ramdeo, to secure a
loan of Rs. 5,500 advanced by the mortgagee on
hypothecation of certain immovable properties appertaining to the estate of the mortgagor. The loan
carried interest at the rate of 9 per cent. per annum
and there was a stipulation to pay the mortgage money
within one year from the date of the bond. The
mortgagor and the mortgagee were both dead at the
time when the suit was instituted, and the plaintiff in
the action was Ramdeo Sahu, the son and heir of the
mortgagee, while the principal defendant was the eldest
son of the mortgagor who succeeded to the Basti estate
under the rule of primogeniture. It was stated in the
plaint that absolutely nothing was paid by the mortgagor or his successor towards the mortgage dues and
the plaintiff claimed the principal amount of Rs. 5,500
together with interest at the rate of 9 per cent. per
annum up to the date of the suit.
A number of pleas were taken by the contesting
defendant in answer to the plaintiff's claim, most of
which are not relevant for our present purpose. The
Iii
S.C.R.
SUPREME COURT REPORTS
783
substantial contentions raised by the defendant were
1950
of a three-fold character. In the first place, it was
urged that the document sued upon was not a properly Sariu Ptrshad
attested or validly registered document and could not
1;~ia
operate as a mortgage instrument in law.
The second
Jwal••hwar;
contention raised was that there was no consideration Pratap Narain
in support of the transaction, at least to the extent of Singh .t Othm.
Rs. 2,000, which was represented by items 3 and 4 of
the consideration clause in the document. The third Mukhorjea J.
and the last material defence related to a claim for
relief under the United Provinces Agriculturists' Relief
Act.
The trial Judge held in favour of the defendant on
the last point mentioned above and negatived his other
pleas. The result was that he made a preliminary
decree for sale in favour of the plaintiff for recovery of
the principal sum of Rs. 5 ,500 with interest at certain
rates as are sanctioned by the U. P. Agriculturists'
Relief Act; and agreeably to the provisions of that Act
the decretal dues were directed to be paid in a number
of instalments.
Against this decision, the defendant took an appeal
to the High Court of Allahabad which was heard by
a Division Bench consisting of Verma and York J J.
The learned Judges reversed the judgment of the trial
Judge and dismissed the plaintiff's suit on one ground
only, viz., that the bond was not attested in the
manner required by law and consequently could not
rank as a mortgage bond ; and as the suit was instituted
beyond 6 years from the date of the bond, no money
decree could be claimed by the plaintiff.
It is against this judgment that the plaintiff has
come up on appeal to this court, and the main contention raised by the learned Attorney.General, who
appeared in support of the appeal, is that in arriving
at its decision on the question of attestation, the High
Court approached the matter from a wrong standpoint
altogether and on the materials in the record it had no
justification for reversing the findings of the trial court
on that point.
The question for our consideration is undoubtedly
one of fact, the decision of which depends upon the
784
SUPREME COURT REPORTS
[1950]
1950
appreciation of the oral evidence adduced in the case.
In such cases, the appellate court has got to bear in
S(l,rju P~rshad
d
·
d
h" h h
v.
min
that it has not the a vantage w ic t e trial
Raja
Judge had in having ·the witnesses before him and of
Jwal.,hwari observing the manner in which they deposed in court.
Pratap Narai" This certainly does not mean that when an appeal lies
Si·•gh & Othera, on facts, the appellate court is not competent to reverse
~
1 k-;:--.
J a finding of fact arrived at by the trial Judge. The rule
u " 1'a · is -and it is nothing more than a rule of practice --that
when there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon the
credibility of the witnesses, then unless there is some
special feature about the evidence of a particular
witness which has escaped the trial Judge's notice or
there is a sufficient balance of improbability to displace
his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the
trial Judge on a question of fact('). The gist of the numerous decisions on this subject was clearly summed up by
Viscount Simon in Watt v. Thomas('), and his observations were adopted and reproduced in extenso by the
Judicial Committee in a very recent appeal from the
Madras High Court('). The observations are as
follows: -·
"But if the evidence as a whole can reasonably be
regarded as justifying the conclusion arrived at at the
trial, and especially if that conclusion has been arrived
at on confliciting testimony by a tribunal which saw
and heard the witnesses, the appellate court will bear
in mind that it has not enjoyed this opportunity and
that the view of the trial Judge as to where credibility
lies is entitled to great weight.
This is not to say that
the Judge of first instance can be treated as infallible
in determining which side is telling the truth or is
refraining from exaggeration.
Like other tribunals, he
may go wrong on a question of fact, but it is a cogent
circumstance that a Judge of first instance, when
(11 Vid9 Lord A•kin's obsetva.tions ·in lV. 0. Macdonald v. Pr~d Latimer,
A.LR. 1929 P.O. 15, 18.
(2) [1947] A.O. 484, alp. 48r..
(3) Vide Saravedrcuwami v. Talluri, A.LR. 19i9 P.O. p. 32,
S.C.R.
SUPREME COURT REPORTS
785
estimating the value of verbal testimony, has the
1950
advantage (which is denied to Courts of appeal) of 8
. -Pd
h
.
th
"t
b f
h.
d b
.
th
ar;u 6'sha
avmg
e w1 nesses
e ore
1m an
o servmg
e
v
manner in which their evidence is given."
Raia
It is in the light of these observations that we proJwal,.hwali
pose to examine the propriety of the decision of the Pratap Nar•m
J
h
.
.
Singh ~Others.
learned udges of t e High Court m the present case.
_
It will appear that the mortgage deed besides contain· Mukherjea J.
ing the signature of the executant, purports to bear the
signatures of three other persons, two of whom are
described as attesting witnesses <tnd the third one as
the scribe. Harbhajan Lal and Jawala Prasad Tewari
purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who
has signed it as the scribe. Jawala Prasad Tewari
was admittedly dead when the suit was brought
and Harbhajan Lal, the only surviving
attesting witness was called on behalf of the plaintiff to
prove the execution of the deed as is required under
section 68 of the Indian Evidence Act. Harbhajan
Lal stated in the witness box that he did sign the
document as a witness and so did Jawala Prasad
Tewari, but neither of them signed it in the presence
of the mortgagor; nor did the mortgagor sign in their
presence.
On this statement being made, the witness
was declared hostile and he was allowed to be crossexamined by the plaintiff's Counsel.
He was crossexamined by the defendant also and in answer to the
questions put to him by the defendant's lawyer, he
stated that he signed the deed at the Co!lectorate
Kutchery, meaning thereby the Bar Library, where he
used to sit as a petition writer and the document was
taken to him at that place by Bhikhi Ram Sahu, the
mortgagee, Ghur Lal, a Karinda ot the mortgagor, and
Jawala Prasad Patwari, the scribe.
Jawala Prasad
Tewari signed the deed after him.
The mortgagor
certainly did not come to that place and his signature
was already on the deed when the witness signed it.
The details of the defendant's version relating to
execution of this document were given by Jawala
Prasad Patwari, who was the principal witness on the
786
SUPREME COURT REPORTS
[1950]
1950
side of the defendant. He says that he prepared the
--
draft at the sherista or the office of the Raja Sahib
SMju Porshad
h" h .
"d
h" K t
1
Th d ft
v
w lc
lS outs1 e
ls
o or pa ace.
e
ra
was
Raja
prepared under instructions from Bhikhi Ram, the
Jwaleshwari mortgagee. and Ghur Lal, the Karinda of the mortPmtap Narain gagor, both of whom were present when the draft was
Singh & Othm prepared. After the draft was fair copied and stampMukhe,Jea J. ed, the witness signed it as the scribe and then it was
taken by Bhikhi Ram and Gbur Lal to the Kot or
palace of the Raja for his signature.
After obtaining
the Raja's signature, Bhikhi Ram went away to his
house and some time later he as well as Bhikhi Ram
and Gbur Lal went to the Collectorate Kutchery,
where they took the signatures of Harbhajan Lal and
Jawala Prasad Tewari.
They then went
to the
registration office, where the document was presented
for registration by Jainarayan Sukul who held a
general power of attorney for the Raja.
As against this, there is a completely different
version given by the plaintiff himself and his witness
Buddhu Lal.
According to the plaintiff, the document was executed and attested at one and the same
sitting in the Kot or palace of the Raja; the terms had
been settled beforehand between Bhikhi Ram and the
mortgagor and on the 8th of November 1926 the
plaintiff himself, and not his father, went to the
Raja's palace at about 10 or 11 A. M. in the morning
to get the document executed. He was accompanied
by three persons to wit Harbhajan Lal, the deed
writer of his father, Buddhu Lal, an old servant of the
family, and Jawala Prasad Tewari who was also well
known to the plaintiff and was taken to bear witness
to the deed.
They found Jawala Prasad Patwari
already with the Raja when they reached the Kot.
The draft was prepared by Buddhu Lal at the suggestion of the Raja. It was the plaintiff's desire that the
final document should be scribed by Harbhajan Lal
but as the Raja wanted to oblige Jawala Prasad
Patwari, who was the Patwari of Basti proper, the
deed was faired out and scribed by Jawala Prasad
Patwari.
After the Raja had put his signature on the
S.C.R.
SUPREME COURT REPORTS
787
document in the presence of Harbhajan Lal and
mo
Tewari, both the latter signed the document in the
f l R ·
Th
b
d Sarju Pershad
presence o tie aia.
e su sequent events narrate
by the plaintiff relate to the registration of the docun:ja
ment and we do not consider them to be material for
Jwaleshwari
our present purpose.
Pratap Narnin
This story of the plaintiff is supported materially Singh~llim.
and on all points by Buddhu Lal, who was an old .•lukhecjea J.
servant of the family, though he was no longer in
service when he deposed in court.
There were thus two conflicting versions placed
before the court and each side attempted to substantiate its case by verbal testimony of witnesses.
The trial Judge was to decide which of the two
versions was correct and he accepted the story of the
plaintiff and rejected that of the defendant.
The learned Judges of the High Court in dealing
with the appeal do observe, at the beginning of their
discussions, that on a question of fact the appellate
court should be slow to differ from the conclusions
arrived at by the trial Judge who had seen and heard
the witnesses; but in their opinion, this rule did not
apply to the present case as the trial Judge here did
not base his conclusions on the impressions created in
his mind by the witnesses who deposed before him.
What the trial Judge relied upon, it is said, was not
the demeanour of the witnesses as index of their
credibility but upon the inherent improbability of the
circumstances deposed to by the defendant's witnesses.
It is observed by the High Court that the trial Judge,
when he found the defendant's story to be improbable,
should have considered whether or not there were
improbable features in the plaintiff's case also, and
_whether the evidence of the plaintiff and his servant
Buddhu Lal merited credence at all. The learned
Judges of the High Court then proceed to examine
and discuss at great length the different reasons put
forward by the trial Judge in support of his finding
that the defendant's case was
unreliable.
These
reasons are held to be inconclusive and unsound and
tne High Court further found that the plaintiff's story
.. ,
788
SUPREME COURT REPORTS
[1950]
19;0
as narrated by him and his servant is improbable and
not worthy of belief.
Swju Pershad
v.
In our opinion, the High C0urt's approach to the
Raia
case has not been proper and its findings are unJwaleskwari supportable on the materials in the record.
:rat~p,t;;:'"
Here was a case where the controversy related to a
mg"__ ""pure question of fact which had to be determined by
,\fakheriea J. weighing and appraising of conflicting oral testimony
adduced by the parties. It cannot be denied that in
estimating the value of oral testimony, the trial Judge,
who sees and hears the witnesses, has an advantage
which the appellate court does not possess.
The High
Court was wrong in thinking that it would detract
from the value to be attached to a trial Judge's finding
of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the
demeanour of witnesses (I). The duty of the appellate
court in such cases is to see whether the evidence
taken as a whole can reasonably justify the conclusion
which the trial court arrived at or whether there is an
element of improbability arising from proved circumstances which, in the opinion of the court, outweighs
such finding.
Applying this principle to the present
case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the
question of attestiation of the document. In the opinion
of the High Court the story narrated by the plaintiff
and his servant is untrue, and the main reason given
is that it is not at all probable that the plaintiff and
not his father Bhikhi Ram was present at the palace
of the Raja when the document was executed. The
mortgagor, it is said, was an influential person in the
locality occupying a very high social position and it
would be indecorous and against Indian customs for a
man like Bhikhi Ram not to be personally present
when the Raja was going to execute a document in his
favour. The learned Judges seem to think that the
plaintiff was not really at the spot when the mortgage
deed was executed and as Bhikhi Ram was dead, this
story was manufactured by the plain tiff in order to
fll Vida ihe observa.tions of Lord Carson in Netherlatt.dsche Handel
.\faatscha:ppij v, R.M,P. Ghetti~r Firm a~d Others, A.LR. 1929 P.C. 20J, '..105,
S.C.R.
SUPREME COURT REPORTS
789
enable him to prove attestation. Mr. Banerjee appear1s5o
ing for the defendant respondent went to the length
. -
of suggesting that it was only after Harbhajan Lal sar,u Persha<i
turned hostile in the witness box and denied that he
R;j.
attested the document that the new story was inventJwaleshwari
ed by the plaintiff.
Pratop Narain
We think that this argument rests on an extremely Smgh .t OthM.
flimsy basis which does not bear examination. It Muk;;;;.a J.
may be that the Raja was a man of high social position, but it should be remembered that he was in the
position of a borrower and moreover it was not the
first time that he was borrowing money from Bhikhi
Ram.
As, however, he was the Raja of Basti, the
document was executed at his palace and not in the
house of the mortgagee and if as the plaintiff says,
the terms were already settled between Bhikhi Ram
and the Raja and the only thing left was to embody
the agreed terms in writing, we fail to see why it was
absolutely necessary for Bhikhi Ram to wait upon
the mortgagor personally; and why his adult son, who
was sufficiently old and experienced in business
affairs, could not represent him in the transaction.
The suggestion of Mr. Banerjee that the new story
was invented after the plaintiff had seen Harbhajan
Lal giving evidence against him in the witness box 1s
not worthy of serious consideration having regard to
the fact that the plaintiff himself stepped into the
witness box immediately after Harbhajan Lal had
finished his deposition.
It seems to us also that the presence of Harbhajan
Lal and Buddhu Lal at the sitting when the mortgage
transaction took place was quite a probable and
natural thing which cannot give rise to any suspicion.
It appears from the evidence on the record that
Harbhajan Lal, who was a professional deed writer,
was usually employed for writing deeds of the plaintiff's
father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff's father was a party. It was quite natural for the
plaintiff in such circumstances to take Harbhajan Lal
_
along with him to the Raja's palace on the day that th(!
101
790
SUPREME COURT REPORTS
[1950]
1950
mortgage bond was executed and we see no reason to
. --
disbelieve the plaintiff's statement that his original
8"'1u p.,,had intention was to have the deed scribed by Harbhajan
v.
Raja
Lal. It is said by the High Court that in the mofussil
Jwaleshwari districts in the United Provinces the Patwari is the
Pratap Narain person generally .employed for drafting and scribing
Singh & Others. deeds.
This cannot mean that all the people in the
district of Basti used to have their deeds drafted and
Jfukherjea J. scribed by the Patwari. We have exhibited documents in the records of this case where the name of
Harbhajan Lal appears as the scribe; and so far as the
plaintiff's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily
employed to do his work. In this case also if Jawala
Prasad Patwari had not been present on the spot, the
plaintiff would certainly have the document scribed by
Harbhajan Lal, as so many documents in favour of the
plaintiff's father had been scfibed by this man on
previous occasions.
We see nothing improbable in the
story that it was out of deference to the wishes of the
Raja that the plaintiff consented to the document
being scribed by Jawala Prasad Patwari.
As regards Buddhu Lal, it is not disputed that he
was an old and a trusted servant of the plaintiff's
family. That he was trusted in business matters is
clear from the fact that his name appears as a witness
in the registered receipt (Ex. 10) given by Sheo Balak
Ram, to whom a sum of Rs. 500 was paid by Bhikhi
Ram under the terms of the disputed mortgage deed.
We fail to see why it was improbable that Buddhu
Lal would accompany the plaintiff to the Raja's palace
on the day of the execution of the document.
The trial Judge relied to some extent upon the fact
that the signatures of the executant and Harbhajan
Lal were in the same ink in support of his conclusion
that Harbhajan Lal signed the document at the place
of its execution and not at the Collectorate Kutchery
as alleged by him. Speaking for ourselves, we do not
attach much importance to the similarity in the ink
which is after all not a very reliable test ; but we do
agree with the trial Judge in holding that Harbhajan
....
-
S.C.R.
SUPREME COURT H.EPORTS
791
1950
Lal must have signed the document at the time when
it was executed and not afterwards; and it is really Sarju Pe,.shad
inconceivable that an old and experienced deed writer
v.
like him did not know the requirements of proper
Raja
attestation. On his own evidence he had attested
Jwaleshwari
numerous documents and he could not recall a single Pratap Narai"
·instance where he signed the document in such manner Singh &o Others.
as he did in the present case. The way in which the Mukherjea J.
learned Judges of the High Court have attempted to
explain away this part of Harbhajan Lal's evidence
does not appear to be satisfactory. The other observation made by the High Court in this connection that
in this particular province there are many persons who
are acquainted with law but do nnt care to comply
with its requirements on accouut of carelessness,
indifference, sloth or over-confidence is not relevant
and need not be taken seriously.
Whatever that may
be, we have no hesitation in holding that Harbhajan
Lal knew perfectly well what attestation means in law
and he did sign the document as an attesting witness
at the Raja's Kot after the document was executed.
Jawala Prasad Patwari is apparently a man under
the control of the defendant and cannot be trusted.
Why Harbhajan Lal did go over to the defendant's
side is a ·question which may not admit of an easy
answer. The trial Judge seems to be of opinion that it
was probably due to the influence exercised by Jaw ala
Prasad Patwari, who is a co-villager of Harbhajan.
We think it unnecessary to speculate upon these
matters, for ill our opinion Harbhajan Lal stands condemned by his own statement in court.
Our conclusion is that the finding of the trial Judge
on the question of attestation is perfectly consistent
with the circumstances and probabilities of the case
and the learned Judge did not omit anything which
ought to have been present to his mind in coming to a
conclusion.
The evidence on the record taken as a
whole fully supports the finding, and in our opinion
the High Court has reversed it on totally inadequate
grounds. The result is that the appeal must be
il\1Jw~d ind the judgment of tlle Higl1 Court should be
792
SUPREME COURT REPORTS
[1950]
1950
set aside. As the High Court, however, has dismissed
--
the suit only on the ground of non-attestation of the
Sarju Pmhad mortgage bond and did not consider the other points
;;ja
which were raised before it, the case must go. back to
Jwaleshw>ri that court m order that the other matters, which have
Prntap Narain been left undecided, may be heard and decided by the
Singh & Others. learned Judges and the case disposed of in accordance
with law. The plaintiff appellant is entitled to costs of
~fakherjea J. this hearing as well as the costs of the High Court
1950
Nov. 30.
against defendant No. 1.
Appeal allowed.
Agent for the appellant: Rajindar Narain.
Agent for the respondents: 5. P. Varma.
A. M. MAIR & CO.
v.
GORDHANDASS SAGARMULL.
[SAIYID FAZL Au, PATANJALI SASTRI and
MEHR CHAND MAHAJAN JJ.]
Arbitration-Contract by
bro~er for sale of goods by "sold"
and "bought" notes-Arbitration clause-Seller denying right of
b•roker to enforce arbitral ,;nn
clause-~J urisdiction of arbitratorsValid,ity of award-Construction of contract.
The appellants, a firm of brokers, entered into a' contract for
the sale and purchase of a quantity of jute under a ''sold note"
addressed to the respondents which they signed as " A & Co.,
brokers" and a "bought note" of the same date and for the
same quantity of jute addressed to a third person in which also
they signed as '
1 A & Co., brokers".
The" sold note" contained
the usual arbitration clause under which '' all matters, questions,
disputes, differences and/.or. cla.ims, arising out of and/or concerning, and/or in connection and/or in consequence of, or relating
to, the contract ......... shall be referred to the arbitration of the
Bengal Chamber of Commerce."
A dispute having arisen with
regard to a matter wbich admittedly arose out of the contract
evidenced by the sold note, the appellants referred the dispute
for arbitration.
The respondents raised before the arbitrators
the further contention that as the appellants were only brokers
they were not entitled to refer the matter to arbitration.
The
arbitrators made an award in favour of the appellants.
The
respondents wade an application to the High Court under the
Indian Arbitration Act for setting aside the award:
Held that,. assuming that it was open to the respondents to
raise this objection at that stage, inasmuch as this further dispute
-