Full Judgment Text
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PETITIONER:
THE NAIHATI JUTE MILLS LTD.
Vs.
RESPONDENT:
HYALIRAM JAGANNATH
DATE OF JUDGMENT:
19/10/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1968 AIR 522 1968 SCR (1) 821
ACT:
Contract-frustration impossibility of performance due to
intervening circumstances-Whether contract discharged on an
implied term or on Court deciding performance impossible-
Contract Act ss. 32 and 56-Scope of-Whether damages could be
awarded on the basis of public policy of Pakistan
Government.
HEADNOTE:
The appellant entered into a contract on July 7, 1958 with
the respondent to purchase from him 2000 bales of jute to be
imported from Pakistan. The contract, inter alia. provided
that shipment of the consignment would be made; during
August-November, 1958, that the buyers would obtain the
necessary import licence, that if they failed to obtain the
licence by November 1958, the period of shipment would be
extended upto December 1958 and that if it was not obtained
by. December 1958, the contract would be settled at the
market price prevailing on January 24, 1959. The contract
also contained an arbitration clause hereunder all disputes
under the con-tract including the question whether the
contract had been terminated or completed were to be
referred to the arbitration of an Arbitration Tribunal.
The appellants applied to the Jute Commissioner on August 8
for an import licence but this was refused on the ground
that the appellants had sufficient stock to carry on for
some months more. ’They applied again on Nov-ember 29, 1958
when their stock was reduced but the Jute Commissioner
refused to issue the licence and ,asked them to meet their
requirements from purchases of Indian jute. The respondents
thereafter claimed damages from the appellants on the ground
that the appellants had failed to furnish, the import
licence as provided in the contract. The appellants
disclaimed their ’liability and thereupon the ’disputes
between the parties were referred to the Arbitration
Tribunal. The Tribunal passed an award holding that the
appellants had failed to carry out their part ’of the
contract and Were liable to pay damages to the respondent
assessed at Rs. 34,000 and interest.
The appellants thereafter applied the High Court to set
aside the award and contended (a) that they could not be
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held to have committed breach of the contract as they had
done all that could be expected of them to obtain the
licence; (b) that owing to the intervening causes, i.e., a
change in the policy of the Government, which the parties
could not foresee when they entered into the contract, the
contract became impossible of performance and ought to have
been treated as void under s. 56 of the Contract Act; and
(c) that the arbitrators had no jurisdiction as the
arbitration clause in the said contract perished along with
the contract. A Single Bench of the High Court-dismissed
the application and an appeal to a Division. Bench was also
dismissed.
On appeal to this Court.
822
Held, dismissing the appeal:
(i) The provision in the contract that whereas the delay to
provide a licence in November 1958 was to be excused but
that the contract was to be settled at the market rate
prevailing on January 2, 1959 if the appellants failed to
deliver the licence in December1958 clearly meant that
the appellants had taken upon themselvesthe absolute
burden of furnishing the licence, latest by the end of
December 1958 and had stipulated that in default theywould
pay damages on the basis of price prevailing on January
2,1959. That being the position the defence of impossibility
of performance or of the contract being void for that reason
or that the court should spell out an implied term in the
contract to that effect was not. available to the
appellants. [832 B-C].
Since under the Contract Act a promise may be express or im
plied, in cases where the court gathers as a matter of
construction that the contract itself contains impliedly or
expressly a term according to which it would stand
discharged on the happening of certain circumstances, the
dissolution of the contract would take place under the terms
of the contract itself and such cases would be outside the
purview of s. 56 Although in English law such cases might be
treated as cases of frustration, in India they would be
dealt with under s. 32. In a majority of cases, however,
the doctrine of frustration is not applied on the ground
that the parties had agreed to an implied term; the court
grants relief under the positive rule enacted in s. 56 by
pronouncing the contract to be frustrated and at an end if
it finds that the whole purpose or the basis of the contract
was frustrated by the intrusion or occurrence of an unex-
pected event or change of circumstances which was not
contemplated by the parties at the date of the contract. In
such cases there would be no question of finding an implied
term embodying, a provision for discharge because the
parties did not think about the matter at all nor could
possibly halve an intention, regarding it..
Case law reviewed. [829 C-G].
Even if the appellants had established frustration, it would
not be as if, the contract was ab initio void. In cases of
frustration it is the performance of the contract which
comes to an end but the contract would still be in existence
for purposes such as the resolution of disputes arising
under or in ’connection with it: and the question whether
the contract was discharged under the doctrine of
frustration would still have to be decided under the
arbitration clause which operates in respect of such
purposes. [832 E],
Union of India v. Kishorilal, [1960] 1 S.C.R. 514,
referred to.
(ii) If the arbitrators awarded damages on the basis of the
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market, price prevalent in Calcutta on January 2. 1959,
there Could be no objection to their adopting that Irate for
adjudicating the quantum of damages on the ground that such
a basis was contrary to the public policy laid down by the
Government of Pakistan. [832 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 44 of 1965.
Appeal by special leave from the judgment and order dated’
August 22..1962 of the Calcutta High Court in Appeal No. 35
of 1960.
823
B. Sen, B. P. Maheshwari and R. K. Chaudhuri, for the
appellant.
Niren De, Addl. Solicitor-General and D. N. Mukherjee, for
the respondent.
The Judgment of the Court was delivered by
Shelat, J.-This appeal by special leave is directed against
the judgment and order of the High Court of Calcutta
rejecting the application by the appellants for setting
aside the award in Award Case No. 70 of 1959 passed by the
Arbitration Tribunal constituted by the Bengal Chamber of
Commerce.
The said Arbitration arose out of a contract dated July 7,
1958 whereunder the appellants agreed to purchase and the
respondents agreed to sell two thousand bales of Saidpur
N.C. Cuttings. The contract was in the standard form
prescribed by the India Jute Mills Association. It provided
that shipment or rail despatch from agencies was to be made
during August and/or September and/or October and/or
November, 1958. As the import of Pakistan jute required an
import licence the contract provided:
"’Buyers to provide the sellers with the
letters of authority and sellers to open
letters %A credit. If buyers fail to provide
the sellers with import licence within Novem-
ber 1958 then the period of shipment would be
upto December, 1958 and the price mentioned in
the contract would be increased by 50 nP. If
buyers fail to provide licence by December
1958 then the contract would, be ,settled at
the market price prevailing on January 2, 1959
for goods of January and February 1959
shipment."
One of the printed terms provided:-
"’Buyers shall not however be held responsible
for delay in delivering letters of authority
or opening letters of credit where such delay
is directly or indirectly caused by sod by I
or due to act of God, war mobilisation
demobilization ’breaking off trade relations
between Governments, requisition by or
interference from government or force majeure.
In any of the aforesaid circumstances where-by
buyers are prevented from delivering letters
of authority or opening letters of credit
within one month from the date of the
contract, there may be a further extension of
time (the delivery period to be extended
accord, ingly) by mutual agreement between the
buyers and the :sellers otherwise the contract
shall be deemed to be cancelled and sellers
shall have no claim whatsoever against the
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buyers."
824
The contract also contained an arbitration clause whereunder
all disputes and differences and/or claims arising out of
and/or concerning and/or in connection with and/or in
consequence of or relating to, the contract whether the
contract has been terminated or purported to be terminated
or completed were to be referred to the arbitration of the
Bengal Chamber of Commerce under their rules for the time
being in force. On August 8, 1958 the appellants applied to
the Jute Commissioner, Calcutta, for an import licence. On
August 19, 1958 the Administrative Officer refused to
certify the licence on the ground that the appellants. had
sufficient stock to carry on their factory for some month&
more. On August 26, 1958 the Licensing Authority refused to
issue the licence. On November 29, 1958 the appellants
requested the Jute Commissioner to certify the issue of a
licence stating that by that time their stock had been
considerably reduced. On December 11, 1958 the Jute
Commissioner refused to issue the licence and asked the
appellants to meet their requirements from purchase of
Indian jute. The respondents thereafter by their attorney’s
letter claimed damages from the appellants on the ground
that the appellants had failed to furnish the licence pro-
vided by the contract. The appellants disclaimed any
liability under the said contract and thereupon the disputes
between the parties were referred to the said Tribunal. The
Tribunal passed an award holding that the appellants failed
to carry out their part of the contract and were liable to,
pay damages assessed at Rs. 34,000/- and interest thereon.
Thereupon the appellants filed the said application to set
aside the award.
In their said application, the appellants raised the
following contentions; (a) that they could not be held to
have committed breach of the contract as they had done all
that could be expected of them to obtain the licence; (b)
that owing to the intervening causes, in the present case a
change in the policy of-the Government, which the parties
could not foresee when they entered into the contract, the
contract became impossible of performance and that therefore
under S. 56 of the Contract Act the contract ought to have
been treated’ as void and (c) that the arbitrators had no
jurisdiction as the arbitration clause in the said contract
perished along with the contract. The respondents, on the
other hand, denied that the performance of the contract
became impossible, and asserted that in any event the
appellants had taken upon themselves the absolute obligation
to procure the licence and lastly that even if the contract
was discharged by frustration, the arbitration clause would
still survive as there would be disputes and differences
between the parties as to whether (i) there was frustration
and (ii) even if so, the consequences thereof they pleaded
that the contract could not be construed to mean that an
unilateral allegation by one of the parties hat there was
frustration would put an end to the contract. It would be
for the Arbitrators to decide whether the said contract was
discharged by frustration.
825
The learned Single Judge who heard the application found
that the contract could not be said to have been discharged
by frustration, that the arbitration clause was wide enough
to include the dispute whether there was frustration or not,
and that the arbitrators were competent to adjudicate such a
dispute. He also found in answer to the appellants’
allegation that the arbitrators were guilty of legal
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misconduct that the appellants had failed to prove any such
legal misconduct. The Division Bench who heard the appeal
from the said order agreed with the learned Single Judge
and,dismissed the appeal. Hence this appeal.
Section 56 of the Contract Act inter alia provides that a
contract to ’do an act which, after the contract is made
becomes impossible, or by reason of some event which the
promiser could not prevent, unlawful, becomes void when the
act becomes impossible or unlawful. It also provides that
where one person has promised to do something which he knew,
or, with reasonable diligence might have known, and which
the promisee did not know to be impossible or unlawful, such
a promiser must make compensation to such promisee for any
loss which such promisee sustains through the non-
performance. As envisaged by s. 56, impossibility of
performance would be inferred by the courts from the nature
of the contract and the surrounding circumstances in which
it was made that the parties must have made their bargain
upon the basis that a Particular thing or state of things
would continue to exist and because of the altered circum-
stances the bargain should nolonger be held binding. The
courts would also infer that the foundation of the contract
had disappeared either by the destruction of the subject
matter or by reason of such long interruption or delay that
the performance would really in effect be that of a
different contract for which the parties had not agreed.
Impossibility of performance may also arise where without
any default of either party the contractual obligation had
become incapable of being performed because the cir-
cumstances in which performance was called for was radically
different from that undertaken by the contract. But the
common law rule of contract is that a man is bound to
perform the obligation which he has undertaken and cannot
claim to be excused by the mere fact that performance has
subsequently become impossible. Courts in England have
however evolved from time to time various theories to soften
the harshness of the aforesaid rule and for that purpose
have tried to formulate the true basis of the doctrine of
discharge of contract when its performance is made
impossible by intervening causes over which the parties to
it had no control. One of such theories is what has been
called the theory of implied term as illustrated in F.A.
Tomplin Steamship Co. Ltd. v. Anglo--Mexican Petroleum
Products Co. Ltd.(1) where Lord Lorebum stated:
(1) [1916] 2 A.C. 397.
826
"A court can and ought to examine the
contract and the circumstances in which it was
made, not of course to vary, but only to
explain it, in order to see whether or not
from the nature of it the parties must have
made their bargain on the footing that a
particular thing or a state of things would
continue to exist. And if they must have done
so, then a term to that effect would be
implied; though it be not expressed in the
contract".
He further observed:
"It is in my opinion the true principle, for
no court has an absolving power, but it can
infer from the nature of the contract and the
surrounding circumstances that a condition
which was not expressed was a foundation on
which the parties contracted...............
Were the altered conditions such that, had
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they thought of them, they would have taken
their chance of them, or such that as sensible
men they would have said, "if that happens, of
course, it is all over between us."
The same theory in a slightly different form
was expressed by Lord Watson in Dahl v.
Nelson, Donkin & Co.(1) in the following
words:
"The meaning of the contract must be taken to
be, not what the parties did intend (for they
had neither thought nor intention regarding
it), but that which the parties, as fair and
sensible men, would presumably have agreed
upon if, having such possibility view, they
had made. express provision as to their
several rights and liabilities in the event of
its occurrence."
In the first case the term is a genuine term, implied though
not expressed; in the second( it is a fiction, something
added to the contract by the law.(2) It appears that, the
theory of implied term was not found to be quite
satisfactory as it contained elements of contradiction.
For, if the parties foresaw the circumstances which existed
at the date of performance they would provide for them in
the contract; if they did not, that meant that they deli-
berately took the risk and therefore ’no question of an
implied term could really arise. In Russkoe V. John Strik &
Sons Ltd.(3) Lord Atkin propounded the theory of
disappearance of the foundation of contract stating that he
could see no reason why if certain circumstances, which the
court would find, must have been contemplated by the parties
as being of the essence of the contract and the continuance
of which must have been deemed to be essential to the
performance of the contract, the court cannot say
(1) [1881] 6 A.C. 38.
(2) Anson, Principles of the English Law of Contract, 22nd
ed. 464.
(3) [1922] 10 LI.L.R. 214 (quoted at p. 466 in Anson’s Law
of Contract, 22nd ed.)
827
that when these circumstances cease to exist, the contract
ceases to operate. The third theory is, that the court
would exercise power to qualify the absolutely binding
nature of the contract in order to do what is just and
reasonable in the new situation. Denning L. J. in British
Movietones Ltd. v. London and District ,Cinemas Ltd.(1)
expounded this theory as follows:-
"Even if the contract is absolute in its term,
nevertheless, if it is not absolute in intent,
it will not be held absolute in effect. The
day is done when we can excuse an unforeseen
injustice by saying to the sufferer. "It is
your own folly. You ought not to have passed
that form of words. You ought to have put in
a clause to protect yourself." We no longer
credit a party with the foresight of a prophet
or his lawyers with the draftsmanship of a
Chalmers."
This theory would mean that the Court has inherent
jurisdiction to go behind the express words of ’the contract
and attribute to the Court the absolving power, a power
consistently held not to be inherent in it. The House of
Lords in the appeal from that decision [reported in 1952
A.C. 166] discarded the theory. In more recent times the
theory of a change in the obligation has come to be more and
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more generally accepted. Lord Radcliffe, the author of this
theory, in Davis Contractors v. Fareham U.D.C.(2) formulated
it in the following words:-
"Frustration ocours whenever the law
reoognises that without default of either
party a contractual obligation has become
incapable of being performed because the
circumstances in which performance is called
for would Tender it a thing radically
different from that which was undertaken by
the contract."
It is not hardship or inconvenience or material loss which
brings about the principle of frustration into play. There
must be a, ,change in the significance of obligation that
the thing undertaken would, if performed, be a different
thing from that which was ,contracted for.
These theories have been evolved in the main to adopt a
realistic approach to the problem of performance of contract
when it is found that owing to causes unforeseen and beyond
the control of the parties intervening between the date of
the contract and the date of its performance it would be
both unreasonable and unjust to exact its performance in the
changed circumstances. Though none of them was fully
accepted and the court construed the contracts coming before
them applying one or the other of them as appearing to be
more rational than the other, the conclusions arrived at
were the same. The necessity of evolving one
[1951] 1 K.B. 190.
[1956] A.C. 166.
828
or the other theory was due to the common law rule that
court& have no power to absolve a party to the contract from
his obligation. On the one hand, they were anxious to
preserve intact the sanctity of contract while on the other
the courts could not shut their eyes to the harshness of the
situation in cases where performance became impossible by
causes which could not have been foreseen and which were
beyond the control of parties.
Such a, difficulty has, however, not to be faced by the
courts in this country. In Ganga Saran v. Ram Charan(1)
this Court emphasized that so far as the courts in this
country are concerned they must look primarily to the law as
embodied in secs. 32 and 56 of the Contract Act. In
Satyabrata Ghose v. Mugneeram(2) also, Mukherjee J. (as he
then was) stated that sec. 56 laid down a rule of positive
law and did not leave the matter to be determined according
to the intention of the parties. Since under the Contract
Act a promise may be expressed or implied, in cases where
the court gathers as a matter of construction that the con-
tract itself contains impliedly or expressly a term
according to which it would stand discharged on the,
happening of certain circumstances the dissolution of the
contract would take place under the terms of the contract
itself and such cases would be outside the purview of sec.
56. Although in English law such cases would be treated as
cases of frustration, in India they would be dealt with
under sec. 32. In a majority of cases, however, the
doctrine of frustration is applied not on the ground that
the parties themselves agreed to an implied term which
operated to release them from performance of the contract.
The Court can grant relief on the ground of subsequent
impossibility when it finds that the whole purpose or the
basis of the contract was frustrated by the intrusion or
occurrence of an unexpected event or change of circumstances
which, was not contemplated by the parties at the date of
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the contract. There would in such a case be no question of
finding out an implied term ;%greed to by the parties
embodying a provision for discharge because the parties did
not think about the matter at all nor could possibly have
any intention regarding it. When such an event or change of
circumstances which is so fundamental as to be regarded by
law as striking at the root of the contract as a whole
occur$ it is the court which can pronounce the contract to
be frustrated and at an end. This is really a positive rule
enacted in sec. 56 which governs such situations.
The question then is, was there a change in the policy of
the Government of India of a total prohibition of import of
Pakistan jute as contended by the appellants which was not
foreseen by the parties and which intervened at the time of,
performance and which made the performance of their
stipulation to obtain a,
(1) [1952] S.C.R. 36.
(2) [1954] S.C.R. 310.
829
licence impossible? It is clear from the circulars produced
during the trial that as early as March 1958 the Government
of India had issued warnings that import of Pakistan jute
would be permitted to the absolute minimum and that the jute
mills should satisfy their needs by, purchasing Indian jute.
It appears that at the time when the parties entered into
the contract the policy was to grant licences in the ratio
of 5 : 1, that is, if an importer had bought 500 mounds of
Indian jute he would be allowed a licence to import 100
mounds of Pakistan jute. This policy is indicated by the
Circular dated July 17, 1958 issued by the Indian Jute Mills
Association to its members. Such licences would be issued
to mills who had stock of less than two months’ consumption.
As already stated, the appellants applied on August 8, 1958
for an import licence for 14,900 maunds and the Jute Commis-
sioner declined to certify that application on the ground
that they held stock sufficient to last them for some
months. In November 1958, they applied again, this time
stating that their stock had been reduced and in December
1958 they were told to buy Indian jute. The said Circular
appears to show that the Government had not placed a total
embargo on import of Pakistan jute. At any rate, such an
embargo was not proved by the appellants. It appears, on
the contrary, from the documents on record that the policy
of the Government was that the licensing authorities would
scrutinize the case of each applicant on its own merit.
What is however important in cases such as the one before us
is to ascertain what the parties themselves contemplated at
the time of entering the contract. That’ the appellants
were aware that licences were not issued freely is evident
by the provisions of the contract themselves which provide
that if the appellants failed to furnish to the respondents
the import licence in November 1958 the period of shipment
was to be extended upto December 1958 and the price in that
event would be enhanced by 50 nP. The contract further
provided that if the appellants were not able to furnish the
licence by December 1958 they would pay damages at the
market rate prevailing on January 2, 1959 for January-
February shipment goods. These clauses clearly indicate
that the appellants were conscious of the difficulty of
getting the licence in time and had therefore provided In
the contract for excusing delay from November to December
1958 and for the appellants’ liability to pay damages if
they failed to procure it even in December 1958. The
contract, no doubt, contained the printed term that the
buyers would not be responsible for delay in delivering the
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licence but such delay as therein provided was to be excused
only if it occurred by such reasons as an act of God, war,
mobilization etc., and other force majeure. It is nobody’s
case that the performance became impossible by reason of
such force majeure. As already stated when the appellants
applied for the licence, the authorities refused to certify
their application because they held at that time stock for
more than 2 months. It is therefore
830
manifest that their application was refused because of a
personal disqualification and not by reason of any force
majeure. Since this was the position there is no question
of the performance becoming impossible by reason of any
change in the Governments policy which could not be foreseen
by the parties. No question also would arise of importing
an implied term into the contract.
Assuming, however, that there was a change of policy and
that the Government in the intervening period had decided to
place an embargo on import of Pakistan jute the question
would still be whether the appellants were relieved from
liability for their failure to deliver the licence. A
contract is not frustrated merely because the circumstances
in which it was made are altered. The Courts have no
general power to absolve a party from the performance of his
part of the contract merely because its performance has
become onerous on account of an unforeseen turn of
events.(1) The question would depend upon whether the
contract which the appellants entered into was that they
would make their best endeavors to get the licence or
whether the contract was that they would obtain it or else
be liable for breach of that stipulation. In a case falling
under the former category, Lord Reading C.I. in Anglo-
Russian Merchants-Traders v. John Batt & Co.(2) observed
that there was no reason why the law should imply an
absolute obligation to do that which the law forbids. It
was so said because the Court construed the contract to mean
only that the sellers there were to make their best efforts
to obtain the requisite permits. As a contrast to ’such a
case there are the cases of Pattahmull Rajeshwar v. K. C.
Sethia(3) and Peter Cassidy Seed Co. v. Osuustickaanppa(4)
where ’the courts have observed that there is nothing
improper or illegal for a party to take upon himself an
absolute obligation to obtain a permit or a licence and in
such a case if he took the risk he must be held bound to his
stipulation. As Lord Sumner in Bank Lime Ltd. v. Capel (A)
Co. Ltd.(5) said:-
"Where the contract makes provision (that is,
full and complete provision, so intended) for
a given contingency it is not for the court to
import into the contract some other different
provisions for the same contingency called by
different name.
In such a case the doctrine of discharge by frustration
cannot be available, nor that of an implied term that the
existing state of
(1) M/s Alopi Parshad & Sons v. Union of India [1960] 2
(1) S.C.R. 2,0.6 793 at p. 808.
(2) [1917] 2 K.B. 679.
(4) [1957] W.L.R. 273.
(3) [1951] 2 All. E.R..352.
(5) [1919] A.C. 435 at p, 455.
831
affairs would continue at the date of performance. The
reason is that where there is an express term the court
cannot find on construction of the contract an implied term
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inconsistent with such express term.
In our view, the provision in the contract that whereas the
delay to provide a licence in November 1958 was to be
excused but that the contract was to be settled at the
market rate prevailing on January 2, 1959 if the appellants
failed to deliver the licence in December 1958 clearly meant
that the appellants had taken upon themselves absolutely the
burden of furnishing the licence latest by the end of
December 1958 and had stipulated that in default they would
pay damages on the basis of price prevailing on January 2,
1959. That being the position the defence of impossibility
of performance or of the contract being void for that reason
or that the court should spell out an implied term in the
contract would not be available to them.
In the view that we take that the said contract cannot be
said to be or to have been void and that in any event the
stipulation as to obtaining the import licence was absolute,
the question that the arbitration clause perished along with
the contract and consequently the arbitrators had no
jurisdiction cannot arise. But assuming that the appellants
had established frustration even then it would not be as if
the contract was ab initio void and therefore not in
existence. In cases of frustration it is the performance of
the contract which comes to an end but the contract would
still be in existence for purposes such as the resolution of
disputes arising under or in connection with it. The
question as to whether the contract became impossible of
performance and was discharged under the doctrine of
frustration would still have to be decided under the
arbitration clause which operates in respect of such
purposes. (Union of India v. Kishorilal(1).
Mr. B. Sen for the appellants also raised two other
questions, as to the legal misconduct on the part of the
arbitrators and as regards interest on damages awarded by
them. We need not however say anything about these two
questions as ultimately they were not pressed by him.
The last contention raised by him was that the arbitrators
awarded damages on the basis of the market rate at Rs. 51
per maund instead of Rs. 65 which was the export price fixed
by the Government of Pakistan. The argument was that such a
basis was contrary to the public policy laid down by the
Government of Pakistan and it would not be expedient on our
part to give our imprimatur to an infringement by the
arbitrators of such a policy. There is, in our view. no
merit in the argument. The Government of Pakistan cannot
lay down any public or economic policy for this country. If
the arbitrators found the prevalent rate
[1960] 1 S.C.R. 514.
832
A on January 2, 1959 in Calcutta to be Rs. 51 a maund there
can be no objection to their adopting that rate for
adjudicating the quantum of damages.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
833