Hussain Kasam Dada, represented by Sakoor Dawood, agent and Another vs Vijayanagaram Commercial Association (Regd.) and Another

Govinda Menon, J.—These two appeals arise under the provisions of the Indian Arbitration Act from the orders of the Subordinate Judge

of Vizagapatam, allowing O.P. No. 36 of 1946 and dismissing O. P. No. 24 of 1936 on his file.

The appellant had entered into three contracts with the contesting respondent for the sale of groundnut and though the contracts themselves have

not been exhibited in the court below, the specimens have been admitted by consent of parties in order to know the nature of the agreements. The

first contract related to the sale of 500 bags of groundnut and is dated 23-8-1945 at the rate of Rs. 20-12-0 per bag with the stipulation that the

delivery would take place in December 1945. Towards the price, a sum of Rs. 2500 was paid as advance. The second contract dated 26-8-1945

related to the sale of another 500 bags of groundnut at the rate of Rs. 21 a bag with the stipulation for delivery in December 1045 itself. As

advance towards this transaction a sum of Rs. 2500 was also paid. The third contract dated 13-11-1045 related to the sale of 1000 bags of

groundnut at the rate of Rs. 24-12-0 a bag for which the advance paid was Ps. 5000 with a similar stipulation that delivery should take place in

December 1945.

In all, therefore, a sum of Rs. 10,000 was paid as advance for all the three contracts for the delivery of 2000 bags of groundnuts. The appellant

also supplied 917 gunnies for collecting the groundnuts. In the contracts there was an agreement that in ease of dispute arising between the parties

regarding the performance and fulfilment of the terms of the contracts, they would be subject to the decision of the Vizianagaram Commercial

Association (Regd.) and such a decision would be binding on all the parties.

Presumably, on account of the fact that the price of groundnut rose abnormally, during the intervening period i.e., between the dates of the

signing of the contracts and the date of their fulfilment, the contesting respondent did not act according to the terms and no delivery of groundnut

bags was ever made. The appellant therefore referred the matter to the Vizianagaram Commercial Association (Regd.) which appointed the

arbitrators who enquired into the matter and passed an award which was to the effect that the contesting respondent had to pay a sum of Rs.

27672-6-4 to the appellant made up of a sum of Rs. 16375 being the damages due on account of the non-delivery of the groundnut bags, Rs.

10,000 being the advance received by the contesting respondent under the three contracts, Rs. 600 being the cost of 977 empty gunnies which

were not returned and Rs. 697-6-4 being the interest on the advance amount and the price of gunnies at 1per cent, per mensem from 31-12-1945

till the date of the award, viz., 18-7-1946.

O. P. No. 24 of 1946 was by the Vizianagaram Commercial Association (Regd.) who appointed the arbitrators, u/s 14 of the Act for filing the

award and passing a decree thereof. O. P. No. 36 of 1946 was by the contesting respondent for setting aside the award; and these two were tried

together by the learned Subordinate Judge who, as stated above, allowed O.P. No. 36 of 1946 and dismissed O.P. No. 24 of 1946. Hence the

two appeals by the aggrieved party.

(5) Various points were raised before the learned Judge of which the most important ones were whether the contracts in question were prohibited

by the Oil Seeds Forward Contracts Prohibition Order, 1943 and if so whether the award is null and void. The lower court''s finding on this point

was against the appellant. In this court the only serious contest between the parties related to the decision on this controversy. Though the

respondent feebly attempted to question the correctness of the decision of the learned Judge regarding the validity of an award made by three

members of the Vizianagaram Commercial Association (Regd.) as being one made by the association itself, to whom alone the reference was

made, and on which point the learned Judge had found against the respondent''s contention, we do not think that there is any substantial point

arising in that dispute.

What is urged on behalf of the contesting respondent is that at the time the contracts were entered into, the rules of the association, to which the

reference to arbitration has to be made, were to the effect that five members of the association should be appointed as arbitrators. This rule was

later on altered on 24-6-1946 by reducing the number to three. It is therefore urged that the rule which obtained at the time of the contracts should

be the guiding principle and not the amended procedure. No authority has been cited before us to justify this contention. If, as laid down in

''Ramnarain v. Liladhur'', 33 Cal 1237 (A), the rules of a body to which the agreement of arbitration is referred to by the parties should be seemed

to have been incorporated in the contract by virtue, of the agreement of parties, then it has necessarily to be held that on a matter of procedure the

relevant factors should be the rules as existing at the time of the reference and not at the genesis of the contract.

The substantial argument is based upon the prohibition contained in the Oil Seeds (Forward Contract Prohibition) Order, 1943, which was first

promulgated on the 29th May 1943. Subsequently, there was a notification exempting certain kinds of contracts from the ambit of the prohibition.

A forward contract is defined in Section 2 Sub-clause (2) of the Order as a contract for the delivery of oil seeds at some future date. In the

contracts in question there is no doubt that the delivery is not ''eo instanti'' the contract itself but is intended to take place some days or months

later. There can be no difficulty therefore in acceding to the respondent''s contention that the contracts in question are forward contracts. But the

notification dated 3lst May 1943 by which certain kinds of forward contracts are excepted has also to be noticed in this connection. That

notification lays down as follows:

Forward contracts for groundnuts, linseed, mustard seed, rapeseed or to raised of specified qualities or types and for specific delivery at specified

price-- ''not transferable to third parties are excluded from the provisions of this order''.

What has therefore to be considered is whether the contracts in question within the exemption namely that if they are not transferable to third

parties then such contracts are not vitiated by the terms of the Oil Seeds (Forward Contracts Prohibition) Order.

There have been two decisions of this court on the subject reported in -- ''Satyanarayanamurthi v. Sitaramayya'', 1950 Mad WN 389 (B) and -

- ''Seetharamaswami v. Bhagvati Oil Co.'', 1950 Mad WN 679 (C). Both these related to the exemption clause contained in the Vegetable Oils

and Oil Cakes (Forward Contract Prohibition) Order. But the exemption is worded in exactly the same terms and therefore in both these cases the

learned Judges held that unless there is a specific recital on the face of the contract itself that it is not transferable, the contract itself will come within

the mischief contemplated by the order prohibiting forward contracts. Unless it is shown that one of the terms of the contract is that a delivery

order of a railway receipt or a bill of lading relating to it is not transferable, contracts which do not contain any stipulation as regards such

documents cannot fall within the exclusion clause of the Notification. In the present case it is undoubted that there is no such clause apparent on the

face of the contract or even deducible from its terms.

Both the decisions above mentioned are clear in this respect and they refer to an earlier decision in -- ''App. No. 97 of 1948 (Mad) (D)'', as well

as to a decision of Desai J. 01 the Bombay High Court in -- ''Firm Hensraj v. Vasanji'', 1949 4 Dom. LR (Bom) 7. It is urged before us by the

learned counsel for the appellant that these decisions should not be held to lay down the correct law and that the provision regarding the non-

transferability need not appear on the face of the contract but can be established by evidence aliunde. In view of the consensus of opinion on this

topic expressed by three different benches of this court we do not think we would be justified in adopting a different interpretation. We are

prepared to follow them and hold that in this case the contract in question is a forward contract.

Even if such a forward contract is illegal under law, still the appellant contends mat the question of the repayment of the advance money and the

return of the gunny bags or their value should be decided according to the terms of the contract and as such it is within the competence of all the

parties to reler at least that matter along with the others to the arbitrators who have got authority to adjudicate upon that dispute and pass an award

accordingly. This contention raises the question as to how far advances made on an invalid contract can be demanded since the fulfilment of the

contract is impossible under the law.

Appellants'' learned counsel invites our attention to Section 65 of the Indian Contract Act which is to the effect that when an agreement is

discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound

to restore it, or to make compensation for it, to the person from whom he received it. There is a dispute between the parties as to whether the

contract has become void after it was entered into or whether it was ''ab initio'' void and known as such to the parties at the time it was entered

into. Reliance was placed upon a number of cases for the proposition that when an agreement becomes void, the benefit arising thereunder, which

a party has received, must be refunded. In -- ''Auryaprahakara Ran v. Gummudu Sanyasi'', AIR 1925 Mad 885 (E), a contract for the sale of

Karnam Inam lands after enfranchisement was held to be only a transfer of an expectancy and was invalid u/s 6 of the Transfer of Property Act

and the fact that the would be vendor was in physical possession of the property dirt not make any difference in ''spes successionis''. Therefore, a

suit for refund of money advanced must be brought within three years from the date when the pronote was discovered to be void u/s 65 of the

Contract Act.

Here was a case where the contract was discovered to be void. Recently one of us had held that when money was paid to a party regarding the

assignment of a Karnam''s office, the contract itself was void from the very beginning and benefits arising under such contracts cannot be restituted.

Other cases on which the learned counsel relied are -- B. Audhesh Singh Vs. B. Rajeshwari Singh and Others, , where Section 65 of the Contract

Act had been applied; -- Sivagnanathammal Vs. S.V. Nallaperumal Pillai, , where there was no illegal contract and -- ''Venkatararnayya v.

Pullayya'', AIR 1936 Mad 717 (H), where it has been held that in order to prevent a person who has been a party to a fraudulent transaction from

pleading his own fraud, the intended fraud must have been effected, or there must have been a substantial part performance of the intention to

defraud. The mere fraudulent intention evidenced by the transaction is not sufficient. There is no question of any fraud here as both the parties

knew, at the time the contract was entered into, that it was illegal under the Oilseeds (Forward Contract Prohibition) Order, 1943. Other decisions

on which learned counsel relied are -- AIR 1943 29 (Privy Council) and -- ''Bhaurao v. Radhabai'', 33 Bom 401 (J). We do not think that any of

these cases can be of any help so far as the appellant is concerned.

He further contended that since arbitrators ere judges both of fact and of law, any erroneous view of law taken by the arbitrators would not

vitiate the award. In this case, according to the appellant, the arbitrators, if at ail, only erred. Tne rulings in -- Venkataswami v. Suranna'', AIR

1918 Mad 296 (K) and -- ''Ghulam Khan v. Muhamad Hasan'', 29 Cal 167 (PC) (L), were relied upon lor this argument. In a recent decision in -

- '' Kalepalli Venkata Rao Vs. Kalepalli Padmavalli Tayaramma, , the learned Judges held that an award was not impeachable on account of a

mistake of fact vitiating the award and since in that particular case the mistake was with regard to me general law and not with regard to any

private right, it could not be invoked to obtain the intervention of the court for setting aside the award. We do not find anything helpful so far as the

appellant is concerned in -- A.M. Appavoo Chettiar Vs. The South Indian Railway Company and Another, .

But the real difficulty in this case arises from the fact that the contract was ''ab initio'' void. The leading case on the subject regarding an

agreement for arbitration with regard to the contracts which have become incapaole of performance, or which are ''ab initio'' void is that of the

House of Lords reported in -- ''Heyman v. Darwins Ltd.'', 1942 AC 358 (O). The law in England until then was rather fluid, but there is

authoritative pronouncement on the subject in the decision above referred to. At page 366 in the speech of Viscount Simon L.C. the following

passage occurs:

If the dispute is whether the contract which contains the clause has ever been entered into at all, the issue cannot go to arbitration under the clause,

for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, ''if one

party to the alleged contract is contending that it is void ab initio (because for example, the making of such a contract is illegal), the arbitration

clause cannot operate for on this view the clause itself is also void''. But in a situation where the parties are at one in asserting that they entered into

a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances

have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have

arisen ""in respect of"" or ""with regard to"", or ""under"" the contract, and an arbitration clause which uses these, or similar expressions, could be

construed accordingly.

(12) No decision has been brought to our notice which takes a different view.

(13) In Redman''s Law of Arbitrations and Awards, 5th Edn., at page 81, dealing with ""claims that benefits forfeited"", the learned author discusses

the whole subject in the following manner: ""A clause in an insurance policy that all differences arising out of the policy shall be referred ......and the

obtaining the award of such arbitrators..... ...shall be a condition precedent to any liability or right of action against the company.

In respect of any matter in difference is a submission both as to liability and amount, and it entitles the insurers to raise an issue of fraud which,

under the conditions of the policy, will result in a forfeiture of all benefits thereunder, or to test the truth or untruth of statements which are the basis

of the contract of insurance, although on their untruth being established all benefits will be forfeited in accordance with the terms of the contract.

The burden of proving that the statements are untrue lies upon the insurer."" Similarly, other observations are contained in Russel oa Arbitration,

Fourteenth Edn., at pages 3 and 243. The passage dealing with ''illegal transactions'' runs as follows: ""Where the subject-matter of a reference is

illegal no award can be of any binding effect. Thus in -- ''Joe Lee, Ltd. v. Lord Dalmeny'', 1927 2 Ch 300 (F), where the plaintiffs were

bookmakers and had engaged in betting transactions with the defendants upon the terms of a set of rules which provided for the settlement of

disputes by arbitration, it was held that the rules formed part, of the contract between the plaintiffs, and the defendants, which was one of gaming

and wagering and was unenforceable, and that the plaintiffs were not entitled to have the disputes submitted to the tribunal provided for in the rules.

But where mixed questions of law and fact have been submitted to arbitration, and the transactions between the parties have been closed by a

general award, good on the face ot it, the court will not, on the suggestion that some illegal matter has been included, enquire into this, or reopen

the question in order to set aside the award upon this ground.

At ''page 246'' it is stated that a submission forming part of a void contract is itself void and cannot be enforced. In -- Velu Padayachi Vs.

Sivasooriam Pillai, a Pull Bench, to which one of us was a Party, considered the question regarding the illegal nature of partnership entered into for

the purpose of conducting business in arrack or toddy on a licence granted, or to be granted, to only one of them. It was held, such a partnership

was ''ab initio'' void, whether the contract of the partnership was entered into before the licence was granted or afterwards. Further, the decision

was that a suit for the recovery of the balance of money due under a settlement of accounts in respect of such a partnership was not maintainable.

There are earlier cases on the subject of other High Courts such as the one reported in -- ''Prabhumal v. Basuram, AIR 1925 Lah 159 (R), where

Shadi Lal C. J. and zafar Ali J. held that Section 65 of the Contract Act cannot have any application to any agreement which is ''ab initio'' void and

is known to be such to the parties at the time it was entered into. Following these decisions, we have to hold that since the contract in question is

''ab initio'' void, it cannot form the basis of a reference to arbitration.

Mr. Azizuddin contends that at least this Court should direct the refund of the advance paid. If there had been a suit for that amount alone in

the ordinary way, without a reference to arbitration, and an application for passing a decree in terms of the award, we would have considered that

question in a different aspect. But as these appeals arise only out of a refusal to pass a decree in terms of the award, we cannot therefore, in these

proceedings, which are only a continuation of the proceedings in the lower court, grant the appellant a decree for the amount. It may be that as a

result of the admission made by the respondent in these proceedings that he has received the money, the cause of action might or might not arise in

favour of the appellant for filing a suit. We do not wish to express any opinion on that topic. His rights if any, will not be affected by this decision.

The appeals therefore fail, but in the circumstances we dismiss both of them without any order as to costs whatever. The order of the lower

court, in favour of the respondent, directing the costs to be paid in O.P. No. 38 of 1946 is set aside. The result is, there will be no order as to

costs in any of the proceedings either in the lower court or in this court.