National Co Ltd v. Bengal Boating Co — 1967 DIGILAW 126 (CAL)

JUDGMENT 1. This is an appeal from the judgment of R. M. Datta, J., dated 17 april 1967 by which the suit was stayed under section 34 of the Arbitration Act. 2. The plaintiff instituted the suit for specific delivery of 438 bales or in the alternative a decree for Rs. 3,29,681 or in the further alternative an enquiry into damages and/or the amount payable by the defendant to the plaintiff and a decree for the sum to be found due to the plaintiff upon such enquiry. The plaintiff alleged in the plaint that on or about 2 November 1964, it was agreed by and between the plaintiff and the defendant that the defendant would carry the products of the plaintiff from the plaintiff's mills to different places within the port limits of Calcutta on the terms and conditions alleged in paragraph 4 of the plaint. The further allegations are that the plaintiff from time to time delivered to the defendant various products of the plaintiff's mills for carriage and for placement thereof alongside diverse vessels in terms of the said agreement as per instructions of the plaintiff. It is also alleged that between 28 December 1966 and 18 January 1967 a total quantity of 3463 bales of gunny were duty handed over to and/or taken delivery of by the defendant for carriage and/or transportation by the boats and/or barges in terms of the agreement. Out of the said 3463 bales it is alleged that 347 bales according to final instructions duly given by the plaintiff were to be placed alongside various vessels. In paragraph 8 of the plaint it is alleged that inspite of instructions and demands of the plaintiff, the defendant failed and neglected to place the goods or any portion thereof alongside the respective vessels or any of them within the due date or at all. The further allegations in the plaint are that out of 3463 bales another lot of 250 bales were handed over to the defendant and out of the said 250 bales, 91 bales could not be shipped for diverse reasons and the plaintiff alleges that the said 91 bales are still lying in the custody of the defendant. In paragraph 10 of the plaint it is alleged that the plaintiff is the owner and/or is entitled to delivery of the said 347 and 91 aggregating 438 bales. In paragraph 10 of the plaint it is alleged that the plaintiff is the owner and/or is entitled to delivery of the said 347 and 91 aggregating 438 bales. In paragraph 10 it is also alleged that the defendant has wrongfully detained and is still detaining 438 bales in spite of instructions and demands of the plaintiff to return the same to the plaintiff and has thereby caused and is still causing damages to the plaintiff. The other allegations in the plaint are that the defendant is holding the said 438 bales of gunny as agent and or trustee of the plaintiff and the plaintiff claims specific delivery of the said 438 bales. The alternative claims are for the sum of Rs. 3,29,681/-being the value of the said 438 bales. In paragraph 15 of the plaint the plaintiff has alleged that the plaintiff has other causes of action against the defendant arising out of non-delivery of the goods in terms of the agreement and or breach of the agreement committed by the defendant and the plaintiff prayed for leave under Order 2, rule 2 of the Code of Civil Procedure. It is common case that there was a written agreement between the plaintiff and the defendant. The agreement will appear at page 36 following of the paper book, and is contained in the letter dated 2 November 1964 written by Bengal Boating Company to national Company Limited. The letter is entitled "boat for carriage of your mills' products from your mill to docks, jetties, moorings within the Port of Calcutta. " The letter starts as follows : "as desired we are giving here-below the terms and conditions for carriage of your mills' products from your mill to different places within the port limit of Calcutta for your consideration and confirmation. " Thereafter 15 terms are set out. At the foot of the letter it is stated as follows: "the terms and conditions mentioned hereinabove are hereby being confirmed". That confirmation is signed by national Company Limited. The is how the agreement between the parties has been arrived at. One of the terms and conditions set out in the letter is as follows : "term No. 14. At the foot of the letter it is stated as follows: "the terms and conditions mentioned hereinabove are hereby being confirmed". That confirmation is signed by national Company Limited. The is how the agreement between the parties has been arrived at. One of the terms and conditions set out in the letter is as follows : "term No. 14. That for any infrigement of the terms and conditions hereinbefore mentioned or any dispute or difference arising out of or pertaining to the said terms and conditions, the matter shall be resolved by arbitration under the Indian Arbitration act. " 3. The contention in the trial Court was that according to the plaintiff the claim in the plaint arose out of tort and not out of contract and therefore the arbitration clause was not attracted inasmuch as the plaint was framed in such a way that it could not be called a claim arising out of breach of contract or in any way connected with the contract or in any way pertaining to the said contract because the claim is primarily based on wrongful detention of the goods and in the alternative for damages for conversion thererof. The learned Judge came to the conclusion that the arbitration clause was wide enough to cover the dispute which was the subject-matter of the plaint and that the dispute raised in the plaint as to wrongful detention and conversion were directly linked up with the agreement. The learned Judge thereafter said : "I cannot but hold that such disputes arise out of the said contract containing the said arbitration clause and at any rate they definitely pertain to the said forms and conditions. " 4. The learned Judge referred to the decision in (1) Johurmull Parasram v. Louis Dreyfus Company Limited, reported in AIR 1949 Cal. 179, on which reliance was placed by counsel for the plaintiff in support of the proposition that if the suit as pleaded is a suit independent of the contract then the Court has no power to stay the suit though it is satisfied that the framing of the suit is merely a means of avoiding the consequences of alleging the true nature of the claim. The learned Judge expressed the opinion that he was more inclined to follow the decision in (2) Chandanmull jhaleria and others v. Clive mills Company Limited and others, reported in AIR 1948 Cal. The learned Judge expressed the opinion that he was more inclined to follow the decision in (2) Chandanmull jhaleria and others v. Clive mills Company Limited and others, reported in AIR 1948 Cal. 257, because Chandanmull's case, (supra), was a later case and it appeared from Chandanmull's case, (supra), that the decision in Johurmull Parasram had been much shaken. It will appear that one of the points discussed in Johurmull Parasram v. Louis Drefus Company Limited, (supra), was that a dispute as to whether a contract was frustrated or not did not come within the ambit of the arbitration clause. In Chandanmull Jhaleria and others v. Clive Mills Company Limited and others, reported in AIR 1948 Cal. 257, the Bench decision was that it was clear that a dispute as to whether a contract had been frustrated or not was at the very least a matter relating to the contract in the present case there is no aspect of frustration of contract. The decision in Johurmull Parasram as far as question of frustration is concerned cannot be said to be the correct view after Chandanmull Jhaleria. But the observation in Johurmull Parasram v. Louis Dreyfus Company Limited, (supra), in so far as consideration of the plaint is concerned has not been dissented from in Chandanmull Jhaleria's case, (Supra. The second contention of counsel for the appellant was that the learned Judge was not correct in the opinion that the words such as 'pertaining to the contract' would be applicable to the arbitration clause in the present case because the arbitration clause spoke of "infringement of terms and conditions hereinbefore mentioned and disputes or differences arising out of or pertaining to the paid terms and conditions. " Emphasis was placed by counsel for the appellant on the words to contend that disputes or differences if any in the present case did not arise out of or pertain to the terms and conditions. In short, it was said that the arbitration clause did not speak of infringement of terms and conditions of contract or of disputes or differences arising out of or pertaining to the contract and therefore the subject-matter of the suit was not covered by the arbitration clause. Counsel for the appellant amplified these contentions under four broad heads. In short, it was said that the arbitration clause did not speak of infringement of terms and conditions of contract or of disputes or differences arising out of or pertaining to the contract and therefore the subject-matter of the suit was not covered by the arbitration clause. Counsel for the appellant amplified these contentions under four broad heads. First, that the suit filed in the present case was not for enforcement of contract; secondly, that the suit as pleaded is not for breach of term of contract or damages for breach of term; thirdly, that the suit has nothing to do with the terms and conditions mentioned in the letter of agreement and fourthly, that the suit is based on liability in tort. Therefore, counsel for the appellant contended that the arbitration clause did not apply in the present case. 5. Reliance was placed a on the decision in Johurmull Parasram v. Louis dreyfus Company Limited, reported in air 1949 Cal. 179 (52 CWN 137) in support of the contention that it would have to be found out by looking at the plaint and the plaint alone whether the suit was based on contract or whether the suit as framed was independent of contract and the question as to whether the plaint was camouflaged or what was the real nature of the claim would not be considered but only the allegations in the plaint. Reliance was also placed in (3) Ghewarchand Rampuria v. Shiva Jute Bailing Limited, reported in AIR 1950 Cal. 568 in support of the proposition that if the suit was filed for damages for wrongful conversion it would be a suit based on tort and the cause of action would not be within the ambit of the arbitration clause. In ghewarchand's case, (supra), the defendant entered into an agreement with the plaintiff for purchase of certain quantity of jute. The plaintiff delivered some quantities. The defendant rejected certain quantities and called upon the plaintiff to remove the same. The plaintiff thereafter attempted to obtain delivery of certain bales of jute. But on some pretext or other the bales were not delivered. The plaintiff wrote to the defendant to return the bales; but the defendant did not return the bales. The plaintiff thereupon filed the suit for damages for wrongful conversion of the goods. There was an arbitration clause in the contract between the parties. But on some pretext or other the bales were not delivered. The plaintiff wrote to the defendant to return the bales; but the defendant did not return the bales. The plaintiff thereupon filed the suit for damages for wrongful conversion of the goods. There was an arbitration clause in the contract between the parties. The arbitration clause was as follows : "any dispute whatsoever arising out of or in any way relating to this contract or to its construction or fulfilment or payment between the parties hereto and whether arising before or after the date of expiration of this contract will be referred to the arbitration of two persons, one to he appointed by each party. " The Bench decision in ghewarchand's case, (supra), was that the cause of action in that case was based, wholly upon tort and tort alone which had no connection direct or indirect with this contract itself. Counsel for the appellant relied on the observation in the Bench decision in ghewarchand's case, (supra), that if the cause of action on which the claim is based is independent of the contract or is one which does not arise on the contract or is not in relation to the contract then the giving of the history of the case or making reference to the contract would not bring the case as pleaded within the arbitration clause. In the present case counsel for the defendant-respondent contended that the subject-matter of the proceedings attracted the arbitration clause because of infringement of terms and conditions as also of disputes or differences arising out of or pertaining to terms and conditions. It is said that decisions are sometimes apt to confuse rather than illuminate points in controversy in a particular case. It is, therefore, always necessary to keep in the forefront the arbitration agreement and to ascertain whether the legal proceedings are in respect of any matter agreed to be referred. 6. Counsel for the appellant relied on the decisions in (4) Bengal Jute Mill company Limited v. Lalchand Dugar, reported in AIR 1963 Cal. 405 ; (5) Sudhangsu bhattacharjee v. Ruplekha Pictures, reported in AIR 1954 Cal. 6. Counsel for the appellant relied on the decisions in (4) Bengal Jute Mill company Limited v. Lalchand Dugar, reported in AIR 1963 Cal. 405 ; (5) Sudhangsu bhattacharjee v. Ruplekha Pictures, reported in AIR 1954 Cal. 281 ; the decision of the Supreme Court in (6) Gaya Electric Supply Company Limited v. State of Bihar, reported in AIR 1953 SC 182 , in support of the proposition that the arbitration clause would be decisive of the subject-matter agreed to be referred and the plaint in the present case did not come within the arbitration clause. Three reasons were given by counsel for the appellant as to why the plaint in the present case could not be paid to be the subject-matter agreed to be referred. First, it was said that the agreement for supply of boat far carriage of jute from the mills to port contained terms and conditions of agreement and those terms and conditions related to supply of boats for carriage of goods from the mills to the port and there was no term or condition that the defendant would have to return the goods to the plaintiff under the contract and it was not the plaintiff's case that the plaintiff asked for return of the goods under the contract and therefore the arbitration clause did not apply; secondly, it was said that the subject-matter of the agreement was not the plaintiff's goods and there was no term in the contract regarding plaintiff's title, ownership, and possession and therefore the plaint as formulated in the present case is for return of the plaintiff's goods and the plaintiff is asserting rights, title, ownership and possession of the goods which do not come within the arbitration clause and therefore the plaint is not in respect of any matter agreed to be referred; and thirdly, it was said that the plaintiff's demand as owner is not the subject-matter of agreement and the plaintiff's claim for value in respect of such possession and ownership and title to the goods does not come within the terms of the arbitration clause and is not in respect of the matter agreed to be referred. Counsel for the appellant also relied on the Bench decision in (7)Balmukund Ruia v. Gopiram Bhataca, reported in 24 CWN 775 and the observations appearing at pages 781-782 of the report that the jurisdiction of an arbitrator depends not upon the existence of a claim or the accrual of a cause of action but upon the existence of a dispute and it was contended that in the present case there was no dispute between the plaintiff and the defendant and therefore the arbitration clause is not attracted. It may be said here that counsel for the appellant also relied on the decision in (8) Piercy v. Young, reported in 14 Ch. D. 200 and the decision in Wallis and another v. Hirsch and others, reported in 140 English Reports 131 in support of the proposition that it had to be found out as to what the intention of the parties was in regard to arbitration agreement and it was contended that in the present case the demand for return of the goods was not within the contemplation of the parties as a term and condition and therefore the arbitration clause would also not apply. 7. Reliance was placed by counsel for the appellant on the decision in (10) Ganpatrai Gupta v. Moody Brothers limited, reported in 85 CLJ 136 in support of the proposition that the arbitration clause was to be strictly construed and clear language was necessary in order to oust the jurisdiction of the court. In Ganpatrai's case, (supra) the conflict was between printed portion of a contract and a typewritten portion of the contract. The printed portion contained an arbitration clause. The type-written portion also contained an arbitration clause. Under the printed clause the arbitration was to be under the provisions of the Arbitration Act; under the typewritten clause it was not mentioned as to whom the reference was to be made for an arbitration. The arbitration clause was held to be vague. This decision does not aid the appellant in the present case. 8. The decisions on which counsel for the appellant relied all turn on the three questions. First, what is the ambit of the arbitration clause? Secondly, what the claim of the plaintiff is in the plaint, namely, whether it is in respect of matter agreed to be referred; and thirdly, whether there are disputes and differences between the parties. 8. The decisions on which counsel for the appellant relied all turn on the three questions. First, what is the ambit of the arbitration clause? Secondly, what the claim of the plaintiff is in the plaint, namely, whether it is in respect of matter agreed to be referred; and thirdly, whether there are disputes and differences between the parties. The decision in Wallis v. Hirsch, (supra), on which counsel for the appellant relied for ascertaining the intention of the parties was on the question as to whether the allegation of fraud would come within the arbitration clause for a stay of the suit. Discretion was not exercised to stay because of the bonafide suggestion of fraud. The decision in Piercy v. Young, (supra), is also not of any assistance to the appellant for the obvious reasons that in that case the question was whether the submission to arbitration included a dispute, namely, whether the shares of partners were purchased on behalf of the plaintiff and defendant or of the defendant alone and whether the defendant had purchased the shares of the plaintiff ns well as of the other partners. The arbitration clause was that any difference or dispute which might arise between the partners should be settled by the arbitration to be agreed upon between the partners. The arbitration clause itself as also the nature of the dispute in Piercy v. Young, (supra), are sufficiently distinctive to take the dispute out of the arbitration agreement. 9. In the present case the first question which has to be ascertained is as to whether there is a dispute or not. It will appear from the affidavit evidence of the respondent in the petition for stay that the respondent submitted bills for the total sum of Rs. 1,72,000/- for hire due to the respondent and the allegations are that in spite of repeated requests the plaintiff failed and neglected to pay hire due to the respondent. The respondent further alleged as follows. All the bales were alongside the respective vessels; but they were not shipped on account of delay and laches on the part of the plaintiff. The plaintiff did not issue any fresh boat challans for placing the bales alongside the vessels excepting in respect of 132 bales and the said 132 bales were also not shipped though they were placed alongside the vessel. The plaintiff did not issue any fresh boat challans for placing the bales alongside the vessels excepting in respect of 132 bales and the said 132 bales were also not shipped though they were placed alongside the vessel. The respondent was at all material times ready and willing to place all the said 468 bales out of which 23 bales were lost by pilferage. Disputes and differences have arisen on account of the demands of the arrears of hires and regarding the placement of the goods alongside the vessel. Reference may be made to the correspondence between the parties appearing at pages 43 to 49 of the paper book. It will appear at page 47 of the paper book from the letter dated 6 February 1967 addressed by the appellant's solicitor to the respondent that in spite of repeated requests the respondent did not place bales of gunny alongside the vessels and/or failed to arrange for the shipment of the same in terms of the agreement. The solicitor's letter further stated that request was made to place 347 bales alongside. It was stated in the same letter that in case the respondent failed to comply with the request to place goods alongside the vessels, the respondent should arrange to return 347 bales to the plaintiff. With regard to the other 91 bales the solicitor's letter stated that the same had not been placed alongside and the respondent was called upon to return the same to the plaintiff's mills within 24 hrs. This letter indicates two things; first, that the goods were not placed and demand was made to return the goods upon failure to place the goods, that is, in respect of 347 bales. Secondly, with regard to 91 bales it is stated that the respondent failed to place the goods and, therefore, the respondent was asked to return. 10. It will appear from the affidavit of Hari Kissen Joshi, a partner of the respondent that bills for the total sum of Rs. 1,72,000/- for hire included the claim for hire in respect of another agreement dated 3 January 1966. The approximate sum of Rs. 2,12,000/- was stated in the affidavit to be due in respect of hire relating to two agreements;- one dated 3 January 1966 and the other forming subject-matter of the present appeal. 1,72,000/- for hire included the claim for hire in respect of another agreement dated 3 January 1966. The approximate sum of Rs. 2,12,000/- was stated in the affidavit to be due in respect of hire relating to two agreements;- one dated 3 January 1966 and the other forming subject-matter of the present appeal. In paragraph 7 of the affidavit of Hari Kissen Joshi it will appear that reference was made to the letter of the appellant's solicitor dated 6 February 1967, which has already been referred to and the deponent Joshi alleged that the letter was received on 7 February 1967 and was handed over for reply to the respondent's solicitor. But in the meantime the suit was instituted on 13 February 1967 and the defendant could not reply to the said letter. In paragraph 7 it is also alleged by the deponent Joshi that the plaintiff issued boat challans for 132 bales and they were accordingly placed alongside the vessel and the remaining bales could not be placed alongside the vessel because of the plaintiff's default and neglect in supplying boat challans. The affidavit of Kashi Nath seksaria in answer to the application for stay contains allegations in paragraph 5 thereof that the alleged disputes and differences with regard to the purported accounts relating to the purported arrears of hires are irrelevant for the purpose of the application for stay. The deponent Sekseria alleges that the claim for Rs. 1,72,000/- is in respect of another agreement dated 3 January, 1966. In paragraph 6 of the affidavit of seksaria at page 21 of the paper book alleges that in spite of repeated requests and instructions of the plaintiff the defendant-respondent failed and neglected to place the goods alongside the various vessels by reason whereof the respondent had to instruct the petitioner to place the goods alongside the vessels or to return the same to the plaintiff's mills. In paragraph 8 of the affidavit the deponent Seksaria at page 22 of the paper book denied that any portion of the said goods could not be shipped on account of delay or laches of the respondent. 11. The affidavit evidence contains the rival contentions of the parties. In paragraph 8 of the affidavit the deponent Seksaria at page 22 of the paper book denied that any portion of the said goods could not be shipped on account of delay or laches of the respondent. 11. The affidavit evidence contains the rival contentions of the parties. On the one hand, it is alleged that instructions were not given and therefore the goods could not be placed; on the other hand, there are allegations that instructions were given and the goods were not placed alongside. The plaintiff asked for return of the goods. 12. Counsel for the appellant contended that the plaintiffs demand for return of the goods would not be within any term or condition of the agreement and, therefore, the arbitration clause was not attracted at all. Counsel for the respondent, on the other hand, contended that the decision in (11) Governor general v. Associated Live Stock reported in A. I. R. 1948 Cal. 230 held that if a party brought an action in respect of any matter not agreed to be referred the Court would have no jurisdiction at all to stay the proceedings and in order to arrive at a conclusion as to whether the action was in respect of matters agreed to he referred, the court had to examine the arbitration clause and ascertain its ambit and scope and if one party based his claim outside the contract but the other based his defence on the contract, the resulting disputes certainly would arise out of the contract. Extracting that observation counsel for the respondent contended that in the present case if recourse was taken to the terms and conditions of the agreement by one party then such feature would be indicative of the fact that the dispute that the party raised was within the arbitration clause. Reliance was placed on the decision of the Supreme court in (12) A. M. Mair and Company v. Gordhandas Sagarmull, reported in 87 CLJ 123. The dispute in that case was whether there was an extension of time for delivery. It was held by the supreme Court that the court would have to find out on a true construction of the contract what the arbitration clause was. The dispute in that case was whether there was an extension of time for delivery. It was held by the supreme Court that the court would have to find out on a true construction of the contract what the arbitration clause was. The dispute as to extension of time for delivery was held to be covered by the arbitration clause on the ground that if it was open to the respondent to raise such an objection that there was an extension the further dispute between the parties as to whether there could be extension or not would have to be interpreted by taking recourse to the contract to establish the claim of the parties in that case. It was, therefore, said that the dispute, the determination of which turned on the true construction of the contract, would also be a dispute under or arising out of or concerning the contract. Borrowing those observations from the decision of the Supreme Court it was rightly contended by counsel for the respondent in the present case that the affirmation by the plaintiff that the demand for goods was not based on any term or condition of the agreement between the parties was disputed and denied by the respondent by taking recourse to the terms and conditions of the agreement to show first, that the plaintiff-appellant cannot ask for return of the goods under the agreement because there is no specific term or agreement for return of the goods; and secondly, if such a demand was made for the return of the goods the defendant-respondent would take stand on the agreement and take recourse to the agreement to dispute and deny the plaintiff's right to ask for the return of the goods. Therefore, counsel for the respondent contends that the demand for the goods is within the arbitration clause. In my opinion, this contention of the respondent is sound and correct. Counsel for the respondent relied on the decision of the House of lords in (13) Heyman v. Darwins Limited, reported in 1942 AC 356 and on the observation appearing at pages 360-361 of the report in support of the two propositions, first, the court is to find out what the dispute is; and secondly, what dispute the arbitration clause covers. Counsel for the respondent relied on the decision of the House of lords in (13) Heyman v. Darwins Limited, reported in 1942 AC 356 and on the observation appearing at pages 360-361 of the report in support of the two propositions, first, the court is to find out what the dispute is; and secondly, what dispute the arbitration clause covers. Viscount Simon L. C. said at page 361 of the report (1942 AC), "turning now to the other question which I have called what is the present dispute about the answer has to be gathered from the affidavits filed in the application for stay, from the correspondence before writ exhibited to these affidavits and from the endorsement on the writ itself. " Therefore in the present case the affidavit evidence, the correspondence to which I have already referred would in my opinion indicate that disputes were raised; first, as to hire; and secondly, as to instructions for placing the goods alongside or for the breach of instructions to place the goods alongside. 13. The next question is how the arbitration clause is attracted. Counsel for the respondent contended that the words 'terms and conditions' appearing in the arbitration clause were referable to the contract because, after all, the terms and conditions form part of the contract. It was said by counsel for the respondent that it would appear from the agreement that terms and conditions were accepted and confirmed and, therefore, they were part of and equated with the contract. It is not necessary In the present case to go into the question as to whether the words "terms and conditions" could be synonymous with the word contract because the arbitration clause as it is couched is to be attracted in order to ascertain whether the subject-matter of the suit is agreed to be referred. 14. Counsel for the respondent placed emphasis on the decision in (14)Woolf v. Collis Removal Service, reported in (1948) 1 KB 11. The learned trial Judge also placed reliance on this decision, In Woolf's case, (supra), the arbitration clause was in wide terms as follows: "if the customer makes any claims upon or counter-claim to any made by the contractors, the same shall, in case of difference, be referred to the decision of two arbitrators. The learned trial Judge also placed reliance on this decision, In Woolf's case, (supra), the arbitration clause was in wide terms as follows: "if the customer makes any claims upon or counter-claim to any made by the contractors, the same shall, in case of difference, be referred to the decision of two arbitrators. " The plaintiff in Woolf v. Collins, (supra) contracted with the defendants to store goods in the ware-house at M. The contract contained an arbitration clause requiring any claim or counter-claim to be submitted to arbitration. The defendants stored the goods not in the warehouse at M. but in another place unsuitable for the purpose with the result that some of the goods were lost and others damaged. The plaintiff claimed damages. The defendants asked for stay of the proceedings. It was contended that although in his statement of claim "a claim sounding in contract is given pride of place. " yet there is a further or alternative claim for negligence and that such alternative claim cannot be referred to arbitration under the arbitration clause, since it is not made under the contract of, which that clause forms part. Asquith L. J. said, "claims which are entirely unrelated to the transaction covered by the contract would no doubt be excluded; but we are of opinion that, even if the claim in negligence is not a claim "under the contract", yet there is a sufficiently close connexion between that claim and that transaction to bring the claim within the arbitration clause, even though framed technically in tort. " Counsel for the respondent contended first, that all the terms and conditions appearing in the letter dated 2 November 1964 were for carriage of the plaintiff's mill products from the plaintiff's mill to different places within the port limit of Calcutta. Secondly term and condition No. 5. thereof indicated that the defendant would place the goods loaded in the barges alongside ships or jetties in compliance with the plaintiff's instructions and in the event of failure in placing alongside within the contracted date the defendant agreed to be liable for losses and damages and in case the stipulated time would not be allowed to the defendants for bringing the boats from the plaintiff's mill and placing them alongside ships or jetties, the defendants would not be liable for failure but would be entitled to demurrage and re-boating charges. Thirdly, term and condition No. 7 indicates that the defendant will be fully responsible for the safety of the plaintiff's goods so far lying in the defendant's boats and the defendant agreed to deliver them in perfect condition in accordance with the plaintiff's instructions. 15. On these two terms and conditions it was contended by counsel for the respondent that the terms and conditions indicated that the defendant would place the goods loaded in the barges alongside the ships in accordance with the instructions of the plaintiff. Secondly, the defendant would be responsible for the safety of the plaintiff's goods. Thirdly, the defendant agreed to deliver the goods in accordance with the plaintiffs instructions. On these terms and conditions if the plaintiff demanded return of the goods that would be a dispute pertaining to or arising out of the terms and conditions and it would also be a dispute with regard to infringement of terms and conditions. First, the terms and conditions of carriage were for placing the goods alongside ships or jetties and the plaintiff was to give instructions to that effect and if instructions were not given as was contended for by the respondent and if the goods were not placed alongside and if thereafter demand was made for the return of the goods these disputes would be all embraced within the terms and conditions Nos. 5 and 7. In essence the demand for the goods which were to be placed alongside ships or jetties, when such goods were not placed alongside ships or jetties because of disputes as to instructions would be referable to terms and conditions as to whether the goods thereafter would have to be returned to the plaintiff's mill. The rival contentions would therefore be within the scope of the arbitration clause. 16. It was rightly contended by counsel for respondent that the respondent wanted the return of the goods and such demand was wrapped up with terms and conditions in the letter dated 2 November 1964 whereby the defendant agreed to carry the plaintiff's mill products from the plaintiff's mills to different places on the terms and conditions set out in that letter. These rival contentions and disputes between the parties, namely, that the defendant disputed that the plaintiff did not give instructions and therefore the goods could not be placed alongside ships or jetties and the contention of the plaintiff, on the other band, that instructions were given are within the ambit of the arbitration clause. In any event, if goods were not placed alongside the demand by the plaintiff for return of the goods to the plaintiff's mill would be incidental to the terms and conditions appearing in the letter dated 2 Nov. 1964 containing the terms and conditions of carriage and such a demand would also flow from the terms and conditions of carriage either not having been carried out according to one party or a demand for the goods made by the other side without going into the question as to whether there were instructions or not or whether there was failure to carry out instructions or not. In short, any demand for the goods would be a dispute within the terms and conditions of carriage because the dispute is between carriage and demand for the goods without or on failure of carriage of the goods from the mill premises to ships or jetties. The overhelming character of the agreement is that the arbitration clause which embraces disputes or differences arising out of or pertaining to terms or infringement of any term or condition, in the ultimate analysis, will resolve into the question whether the goods were carried from the mitt premises to different places within the port limit of Calcutta or whether there was any dispute which arose within the terms and conditions of carriage. The placement of the goods as opposed to non-placement of the goods, the carriage of goods as opposed to the demand of goods thereby preventing any carriage would be disputes or differences arising out of or pertaining to terms and conditions of the Contract was contended by counsel for the respondent to mean disputes arising out or in relation to the subject-matter of the agreement and reliance was placed on the statement of law in Russell on Arbitration, 17th Edition at page 47. I have already stated that it is not necessary to go into the question as to whether the arbitration clause in the present case would be referable to disputes or differences arising out of or pertaining to the contract which embodies the terms and conditions of the contract because in the present case the terms and conditions on which counsel for the respondent rightly relied support the contention that the suit is in respect of subject-matter agreed to be referred. For all these reasons I am of opinion that the suit and all proceedings therein should be stayed and the learned judge was right in his conclusion that the suit should be stayed. For all these reasons the appeal is dismissed with costs.