P L D 1966 Dacca 164 (PLP)

HASAN, J.‑This appeal is directed against the decree passed in the suit in terms of an award. The contract was entered on 29th December 1956, for 1,000 bales of N. C. cuttings, delivery of which was to be taken between January and February 1957. The defendant failed to lift the, jute though repeatedly asked by the plaintiff and accordingly the plaintiff made a reference to the Tribunal of Arbitration of Dacca‑Narayanganj Chamber of Commerce for realisation of Rs. 30,000 as difference between the contract price and the market price. The defendant did not file any statement before the Arbitration. The arbitrators made an award in favour of the respondent and filed the same in Court for passing a decree in terms of the award. The defendant appeared and contested the suit alleging, inter alia, that no notice of the Arbitration, after constitution of Arbitration Court on 21st May 1957, was given to the defendant and as such the defendant had no opportunity to appear before the Arbitration Court; that the contract was for export that as he could not obtain the export registration number; imposed by the Government, the defendant could not lift the jute which was for export; that the defendant having no control over the circumstances, namely, passing of an order by the Government requiring an export registration number of the Arbitration Court was wrong, in the above circumstances, in passing the award and that the award was void. The parties to the suit examined one witness each and filed some documents to substantiate their contention. The learned Subordinate Judge framed the following issues: "(1) Is the Contract on the basis of which the award was given illegal, unconscionable, impossible of performance, null and void ? (2) Is the Award given legal? If not, can a decree be passed on the basis of the Award? (3) Was the contract impossible of performance in the given circumstances over which the defendant had no control? If so, is the plaintiff entitled ‑to get a decree on the basis of the award in question ?" . On consideration of the evidence the learned Subordinate Judge was of opinion that the contract was not impossible for performance, that notice of the arbitration was served upon the dependent; that though the Award was not made within 4 months from the date of entering upon the reference as contemplated under Article 3, Schedule 1 of the Arbitration Act, 1940, the contention on limitation could not be entertained at such a late stage and accordingly decreed the suit. Hence the present appeal by the defendant and Cross objection at the instance of the plaintiff. Mr. Asrarul Hussain, the learned Advocate for the appellant, has first argued that as the Award was made beyond 4 months from entering upon the reference by the Arbitrators the Award was null and void. In order to appreciate this point it is necessary to refer to certain facts. Reference to Arbitration was made on 1st of April 1957, and notice calling for the statement was given by the Registrar of Chamber of Commerce on 3rd of April 1957. The Court was constituted on the 21st of. May 1957, and papers were handed over on the 19th of June 1957, and the Award was passed on the 21st of. August 1957. It is contended that the Arbitrators entered on reference on the date when the notice calling for the statement was issued by the Registrar; namely, on the 3rd of April 1957, and as the Award was made beyond 4 months from the date, namely, on the 21st of August 1957, the Award is a nullity. Reliance has been placed on the case of M/s. M. M. Ispahani Ltd. v. M/s. Pakistan Trading Company (P L D 1966 Dacca 54). Sitting singly, I in that case, held in the circumstances of that case that the Arbitrators entered upon the reference when the statements were called for. Relying on that it has been argued that in the present case statements were called for on the 3rd of April 1957, and .as such the Award is barred by limitation having been made on the 21st of August 1957. We do not find any substance in this contention. In the case M/s. M. M. Ispahani Ltd. v. M/s. Pakistan Trading Company it was not a fact that the Court was constituted after the notice. But it was assumed that the Court was constituted before the notice. In the present case the Court, however, was constituted after the notice. In our opinion, a Court cannot enter upon any reference before the Court is constituted. In the present case, the Court was constituted on the 21st of May 1957. So by no stretch of imagination it can be held that the Court entered upon a reference before 21st or May 1957: At best the Court could have entered upon the reference on the 21st of May 1957, and the Award having been made within 4 months from that date, it cannot be said that the Award was made beyond time and accordingly it is a nullity. Mr. Asrarul Hussain has also contended that the Award is that of a Chamber of Commerce and not of the Arbitrators and as such limitation will run from .the date of reference to the Chamber on the 1st of April 1957, and not from the 21st of May 1957. In support he has relied on the case of Katihar Jule Mills Ltd. v. Shri Lachminarayan Jute Manufacturing Co. Ltd. (A I R 1958 Cal. 501). The relevant portion of the judgment is: "It is true that in the case of an arbitration by the Bengal Chamber of Commerce and Industry, the award made is an award of the Chamber itself and not of the arbitral Court, but as S. R. Das Gupta, J. has pointed out, the Chamber, being a corporate body, can function only in accordance with its rules and therefore when the Court constituted is one which cannot be constituted under the rules, the award trade by the Chamber through such a Court is an award made without jurisdiction and as such a nullity." The above paragraph does show the hollowness of the argument. It was held in that case that the Chamber could not have passed any award but that could have been passed by a Court constituted by the Chamber in accordance with the rules framed by the Chamber of Commerce and that if an award was passed by a Court not being constituted in accordance with the rules that award would be a nullity. From the aforesaid it is clear that the Chamber could not have passed any award but that award could have been passed by a Court, constituted by the Chamber of Commerce. So in the present case as the Court was constituted on 21st of May 1957, by no stretch of imagination it can be said that the award could, have been made on the 1st of April 1957. Hence we do not find any substance in this contention. In this case another grievance has been made by the learned Advocate and that is that the learned Subordinate Judge was wrong in holding that the defendant was not entitled to press the question of limitation as it could not be taken at later stage but at the earliest opportunity. In support of this contention reliance has been; placed on the case of Raja Har Narain Singh v. Chaudharain Bhagwant Kaar (I L R 13 All. 300 (P C)) and the case of Hashmat Ali Jamaddar and others v. Asmat Ali Jamaddar (6 D L R 478). It has been laid down in those cases that when the award is a nullity the question of limitation can be taken at any stage but if it is not a nullity raising of question of limitation will be governed by Article 158 of the Limitation Act. We have already found that the award in question was made within time. The next ground urged by the learned Advocate is that contract was for export and as the goods could not be lifted in view of the statutory bar the contract must fail. It has been contended in support of this contention that after the contract was entered into a circular was issued by the Government that every exporter must have a registered number and without registration number no company or any person will be allowed to export. Now this invites us to consider whether for this reason only we can hold that the contract must fail. Relying on Section 56 of the Contract Act which thus runs: "An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. 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 promisor must make compensation to such promisee for any loss which such promisee sustains through the ‑ non performance of the promise." And on the case of F. A. Tamplin Steamship Company, Limited v. Anglo‑Mexican Petroleum Products Company, Limited, ((1916)

2. A C, 397) it has been contended by the learned Advocate that due to the circular it was not possible for the defendant to export the Jute to the foreign countries and as such the contract became void. We are unable to accept this contention. . The contract was entered into between the parties on 29th December 1956, but the first circular is of 15th December 1955, and runs as :‑

"That it has been decided to register exporters. Persons or firms engaged in or desirous of engaging in the export of goods should apply in the prescribed form. No person who is not registered as an exporter with the Chief Controller of ‑ Imports and Exports, by a certain date, to be notified later, will be permitted to export any goods from Pakistan whether licensable or on the O. G. L." So, from this circular which appears at page 24 of the Paper Book first part, it is clear that there was in existence a circular registration of a firm even before the agreement was into on 29th December 1956. That is not all. There after on the 25th of January 1957, the following notice was given:‑

"Subject.‑Registration of Exporters. Attention of Exporters is invited to public Notice No. 9 (55) Exports dated 15th December 1955, wherein persons or firms engaged in or desirous of engaging in exports of goods from Pakistan were called upon to get themselves registered. More than a year has elapsed since that Public Notice was issued. It is notified for general information that with effect from 11th February 1957, no person or firm shall be allowed to export any goods from Pakistan whether licensable or on the L. G. L., unless the person or the firm holds a Registration Certificate issued by the Chief Controller of Imports and Exports under the Registration (Importers and Exporters) Order, 1952. It has further been decided to issue provisional Registration but in whose cases inquiries have not yet been completed. On completion of necessary inquiries such Provisional Certificates will be called back for confirmation or cancellation, as the case may be." So, from these two circulars it is apparent that the defendant was aware of the existence of the circular requiring Registration and being aware of that circular he entered into a contract and that the bar came into force on and from 11th February before which there was no bar disqualifying the defendant to export for want of registration number and as such his plea that for the absence of the Registration number he could not lift the goods cannot be accepted. Furthermore, from the Exhibits filed in this case it is clear that the plaintiff was asking the defendant to lift the goods but the defendant was taking time after time. This will appear from Exh. 3‑A, Exh. 3, Exh. 3‑D, Exh. 3‑H, Exh. 3‑J. Exh. 3‑J is dated 26th of February 1957. So the plea that the contract should not be fulfilled for the absence of the Registration Number Cannot be allowed to defeat the contract ; nor the contract became void in the aforesaid circumstances. The cases relied on by the learned Advocate for the appellant, namely, the case of F. A. Steamship Company Ltd. v. Anglo‑Mexican Petroleum Products Co. Ltd., and the case of Chandpur Mills v. The. Official Liquidator, Economic Aid Corporation, Ltd., (P L D 1960 Dacca 308), are not of any help in the facts and circumstances of the case to the appellant. The last ground urged is the non‑service of notice. The defendant in his examination has stated that he did not receive any notice from the Arbitrators but he has not stated that he has not received any notice from the Registrar before the constitution of the Court because he is aware of the contents of his written objection filed by him in Court. In paragraph 2 in the written statement we find the following statement "That no notice of the arbitration after the constitution of Arbitration Court on 21‑5‑57 was given to the defendant." In paragraph 8 it has been stated that no proper notice was served by the Arbitration Court after it was constituted on the 21st of May 1957. So he has not ,deposed that he did not receive any notice from registrar. But all his plea is that he did not receive any notice after constitution of the Court. So, in fact, he received the notice. Hence we do not find any substance in this contention. We accordingly dismiss the appeal with costs. The cross -objection is directed against the order in respect of costs. From the judgment of the learned Subordinate Judge we find that at some stage cost was awarded but at a later stage the order dismissing the suit does not convey, whether any costs have been awarded or not. But after going through this case we are of opinion that the plaintiff' is entitled to get costs of the suit and that is accordingly decreed and the cross‑objection is allowed without any order as to costs. TAIB‑UD‑DIN TALUKDAR, J.‑I agree. S. Q. Appeal dismissed.