P L D 1971 Supreme Court 784 (PLP)

WAUEEDUDDIN AHMAD. J.-This appeal by special leave is directed against the judgment of the High Court of East Pakistan, Dacca, in F. M. A. No. 90 of 1964, dated the 14th December 1965. By this judgment, a Division Bench of the Dacca High Court dismissed the appeal filed by the appellant. The appellant-company, entered into a contract with the respondent-firm for supply of 1500 bales of jute of three different grades, namely, 500 B/S Export Heart at the rate of Rs. 225 per bale, 500 B/S Export lightning at Rs. 235 per bale, and 500 B/S Export First at Rs. 245 per bale, through M/s. Eagle Star Trading Corporation in the standard form of Pakistan Jute Association Pucca Bale Contract No.

6. It was agreed between the parties that the jute of three different varieties would be delivered to the respondent in the months of October, November and December 1960. In December 1960, the appellant company supplied only 125 Bales of jute in respect of the above contract. The respondent demanded delivery of the remaining bales of jute but the appellant failed to do so. Thereupon, the respondent cancelled the contract, ,and claimed the difference between the market rate and the contract rate and claimed affixed", and therefore, "it matters not what someone else may have written against the mark" (per Cresswell, J. O., Re Douse 31 L J P M & A 172; see also Re Clarks 27 Old

18. So, if a testator, or witness, writes a name, not his or her real name, but intended to represent that real name, the signature will be good. Thus, where a woman whose name was "Glover" signed her name as "Reed" (that being the name of her deceased first husband) the signature was held good (Re Glover 11 Jur. 1022 ; and signature in the assumed name is good (Re Redding, 14 Jur. 1052)." At page 2786, it is stated as under :- "As to the character of the requisite signature to a contract: in the first place, all that has been said as to the signature of a will by a stamped impression, or a mark, or initials, or (it seems) a wrong name, is equally applicable to the signature of a contract under the Statute of Frauds (see cases collected Add. C. (11th ed.) 39 ; but "whether a signature by initials would suffice, seems not to have been decided expressly, Benj. (8th ed.) 263.-see as to this (Hill v. Hill 1947 Ch. 231). But in a contract, the latitude as to the manner of signing is carried much farther than in a will. The signature may appear at the top or bottom or in the body of the contract (Knight v. Crockford 1 Esp. 189; Sims. v. Landray (1894) 2 Ch. 318); and a learned Judge has even stated the rule thus widely "If the name appears on the contract and be written by the party to be bound, or by his authority, and issued or accepted by him, or intended by him as the memorandum of a contract, that is sufficient" (per Blackburn, J., Durrell v. Evans 31 L J Exh. 345, where the provious cases hereon were collected; but see thereon Murphy v. Boese L R 10 Exh. 126)". It may be pointed out that in respect of Bills of Exchange and Promissory notes; it is provided in the Bills of Exchange Act, 1882 (45 & 46 Vict., c. 61), s. 23 ; as under:- "No person is liable as drawer, indorser, or acceptor, of a bill who has not signed it as such: provided that - (1) where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name; (2) the signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm." Thus signatures in assumed name are invoked in commercial contract and is even recognised under certain statutes. It cannot, therefore, be said that the signature fu the name of M/s. M. Sarkies & Sons, in any way, is defective or not permissi ble under the law. It is in evidence that the signature in the D name of M/s. M. Sarkies & Sons was signed by Mr. C. W. Tassie one of the attorneys. In view of this evidence, it is quite clear that the signature of M/s. M. Sarkies & Sons was made by an authorised agent of James Finally & Co. Ltd., and the contract between the parties is quite a valid one. Even if it be assumed for the sake of argument that the contract was not properly signed even otherwise in my opinion, the contract between the parties was quite valid and binding on them. It has been rightly pointed out by the Civil Judge that the appellant sellers have accepted the contract. There is also evidence that after the conclusion of the contract the appellant firm had partially acted upon it for supplying 125 bales of jute. Mr. Bhattacharjee, learned counsel for the respondent has referred to two Indian decisions, Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji (AIR 1955 S C 812) and Banarsi Das v. Cane Commissioner, Uttar Pardesh & another (A I R 1963 S C 1417). It was held in these cases that even if signature is not there and acceptance is established it is a proper agreement between the parties. In the case of Jugal Kishore Rameshawardas, it was held as under :- "But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established. " The same view was expressed in the case of Banarsf Das. If the fact of the present case is considered in the light of these principles, it is proved that the agreement between the parties was reduced to writing. Both the parties accepted its terms and have partially carried them out. In view of this the contract in dispute is established between them and the respondents are t entitled to enforce it. Having regards to these facts, I am satisfied that there was a valid reference to arbitration and the Arbitrators were competent to enter on the reference in order to decide the dispute between the parties. I would, therefore, repel the contention of the appellant in this behalf. The next point raised on behalf of the appellant is that the Arbitrators have received Exhs. 8, 8 (a), C, C (1) and C (2), behind their back from the respondent-company and that no copies of these papers were served upon the appellant. This objection is not supported by any reliable evidence on the record. P. W. 2 Peter Purification, an officer of the Chamber who was examined as a witness stated that after the closing of the case, both the parties filed some rejoinders. He further stated that no action was taken on them since the case was already closed. The learned Civil Judge, after referring to the papers on the record, has held that what the witness has testified is based on facts. There is no evidence on the record to show that these documents were brought to the notice of the Arbitrators and has caused any prejudice to the appellant. Mr. Shamsuzzaman, learned counsel for the appellant, has contended that in para. 7 of the letter addressed on behalf of M/s. M. Sarkies & Sons, Exh. 8, the respondent-firm has suggested that the appellant be asked to advise their certified production figures from their premises during September/October/November/December/January as advised to the Agricultural Income-tax Officer for the collection of Govern ment due tax. According to him this suggestion must have come to the notice of the Arbitrators and it was for this reason that the Registrar appended the following note to "Exh. A", addressed to the appellant on the 18th May 1961:- "N. B.-I am directed to request you to produce your baling figure from your premises during the months of September/ October/November/December 1960, and January 1961, as advised by the Agricultural Income-tax Officer for the collection of the Government due tax which statistics should be certified by the said Officer as a true copy." No such question was put to P. W. 2 Purification who was an Officer of the Chamber. No other evidence was brought on the record to show that the note referred to above was based on the letter addressed to the Registrar by M/s. M. Sarkies & Sons. In the absence of any such proof I am not inclined to disturb the concurrent finding of fact of the Courts below that these documents were not brought to the notice of the Arbitrators and they had no knowledge of it. They remained with the Registrar and, therefore, it was not obligatory on the Arbitrators to send the copies of these letters to the appellant. On this finding, it cannot be said that the Arbitrators have committed any mis conduct in the discharge of their duties. The last point that was urged on behalf of the appellant is that Mr. Longwill, the Manager of the respondent-firm was the Vice-President of the Chamber Mr. Chalmer was an Officer under the respondent and Mrs. Chalmer was an Assistant Secretary of the Chamber. The contention of the appellant is that in spite of their best efforts the Chamber did not disclose the names of the Arbitrators to them. It is contended that since Mr. Longwill was connected with the respondent and Mrs. Chalmer was the wife of an Officer of the respondent-firm they must have procured the names of the Arbitrators from the Chamber and must have disclosed them to the respondent. In my opinion the mere fact that these persons were connected with the respondent-firm does not lead to the inference that they must have obtained the names of the Arbitrators appointed in the present case. There is no direct evidence on this point. Even if this contention of the appellant is accepted, there is no proof that these persons, in any way, exercised any undue influence on the Arbitrators. This contention, therefore, is also repelled. Mr. Bhattacharjee, learned counsel for the respondent, has contended that objection No. 1 raised on behalf of the appellant was not raised before the Subordinate Courts within the time prescribed under Article 158 of the Limitation Act, and, therefore, this objection should not be taken into consideration. On the view that I have taken in the matter; it is not necessary to decide this question. After carefully considering the objections raised on behalf of the appellant, I am satisfied that there is no force in them. The appeal is dismissed with costs. HAMOODUR RAHMAN, C. J.-I agree. M. R. KHAN, J.-I agree.