' TANZIL-UR-REHMAN, J.-This is an appeal against the judgment the 1 4-5-1473 of a learned Single Judge of this Court passed in Suit No, 239 of is arising out of proceedings under the Arbitration Act, 1940, between the appellants and respondent No. 1.
2. The respondent No. 1 had invited tenders "for export of rice": In response thereto the said appellants submitted their tender which was accepted by the respondent No. 1. Thus a contract of sale "for export of rice" was concluded between the appellants and the respondent No. 1 i. e.
Government of Pakistan. This contract of sale was, however subject to the conditions laid down by the Government of Pakistan in Notification No, S. R.
0. 822 (K)166 dated 27th August, 1966 issued by the Ministry of Agriculture and Works, (Food Division). The conditions relevant for this case appear in para. 3 and para. 5 of the said, Notification which are reproduced as under :- "3. Packing.-Rice shall be packed in double gunny bags, the inner bag being in serviceable condition, and the outer one being new. Each bag shall contain 200 or 205 Lbs. Nett of rice.
5. Title.-The property in the rice shall pass to the buyer after the bag is tied to the ship's tackle.
3. It appears- that while the respondent No. 1 was ready and willing to make delivery of the rice, for the purpose of export, in double bags, as laid down in para. 3 of the said Notification, the appellants themselves required the delivery of rice in single bag, in view of the condition contained in the Letter of Credit opened in their favour by the purchaser abroad. The arrangement was, therefore, altered at the request of the appellants and the shipment of rice was made in single gunny bags.
4. It is, however, noticed that the appellants obtained a statement of shipment issued by the Assistant Director, Rice T. P. X., wherein it was noted that the rice had been packed by the respondent No. 1 in 53336 single gunny bags and, therefore, 53336 bags were due to the appellants. The appellants, after the entire shipment was over, claimed from the respondent No. 1,53336 gunny bags as having not been used in packing by the respondent or its equivalent price which, according to them, amounted to Rs, 1,24,826.24. The respondent No, Host no time in repudiating the said claim.
5. As a result of the said repudiation, it was offered by respondent No. 1 that the matter may be referred to arbitration as provided in para. 10 of the Notification stated above, to which the appellants agreed and thus I. A. Khan, C. S. P. Joint Secretary, Government of Pakistan was nominated as "Sole Arbitrator". The appellants filed their claim before the learned Arbitrator, who is shown as respondent No, 2 before us. The parties also produced their evidence before the Arbitrator, but he rejected the claim of the appellants by his Award dated 22nd February, 1971 holding that no amount was due to them on account of the transaction in dispute from respondent No. 1.
6. The said award was filed in this Court. Notices of the filing of the same were issued to the parties and the appellants filed their objections under sections 30 and 33 of the Arbitration Act, 1940. The learned Single Judge of this Court, by his judgment dated 4th May, 1973 dismissed the objections filed by the appellants and while confirming the award made it a rule of the Court. The appellants have now challenged the said judgment in this appeal.
7. The contention advanced on behalf of the appellants is that there was a contract concluded between the parties for the purpose of rice with two gunny bags, one serviceable and the other new, for 200 or 205 Lbs. Net of rice. As the rice was packed in one serviceable bag only, the appellants are entitled to the other new bag. It was further contended that at no time the appellants waived their right of claiming the other bag inasmuch as they obtained a certificate from the Assistant Director Rice, T. P. X. Who states that 53,336 single original bags were used for the entire shipment and that 53,336 outer new bags were due to the appellants.
8. Before considering the contentions raised by the learned counsel for the appellants, we will like to make a reference to the observations made and findings given by the learned Arbitrator, in respect of the matter in dispute.
9. Dealing with the claim for the gunny bags the learned Arbitrator observed in his Award that the object of the contract was to arrange for the export of rice to foreign buyer and the provision for two gunny bags was in order to ensure that the reputation of country does not suffer and that due arrangement be made to protect the interests of the recipients of exported rice at the other end.
He further observed that the provision of double gunny bags was only for the purpose of packing to ensure safe delivery of the consignment, not for the benefit of the buyer. It' the buyer himself volunteered to take the contracted quantities of rice in single gunny bags, the Government was not obliged to pay the price of the gunny bags voluntarily surrendered by the buyers unless at the time of surrender such a demand was specifically made by the buyer and accepted by the Government.
10. As regards the appellant's contention relating to the issuance of a statement by the Assistant Director, the learned Arbitrator held that the statement signed by the Assistant Director, Rice T. P. X., who was only a Field Officer, did not mean that the Director of Food had assumed a liability to supply 53336 bags to the appellants. A statement of this kind could easily be secured by the appellants from Assistant Director with the intention of using it as an authority to support the claim which they had up their sleeves.
11. These findings as given by the learned Arbitrator in his Award were accepted by the learned Single Judge "to be reasonable and in accord with the principles governing the sale of goods as enunciated in the Sale of Goods Act".
12. Now we revert to the contentions of Mr. M. M. Mahmoodi, the learned counsel for the appellants.
He relies upon the case of Burmah Shell Oil Co. v. The Trustee in the Port of Chattagong (1), wherein it was laid down by the Supreme Court that "to constitute a waiver there must be some conscious giving up of the right". Mr. Mahmoodi argues that there is no express waiver so far as his client's right of taking two gunny bags is concerned. There cannot possibly be any quarrel over the proposition of law laid down by the Supreme Court, but the proposition. Is further expressed in the case of Mustaqim v. Sher Bahadur (2) in the following terms :- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act or relinquishment or of conduct, such as would warrant an inference of relinquishment of the right."
13. Besides the above authorities, it will be advantageous to also refer to {{FOOT NOTE}}
(1) PLD 1961 SC 452 (2) PLD 1962 Pesh. 16 {{FOOT NOTE}} ' an Arab jurist, late Khalid al-Atasi, Qadi of Hima, who in his Sharh Al-Majalland Ahkam Al-,`Adkvah (Hima, Vol. 1, generally known as Sharh Al-Majalla) commenting on section 51 of the Majjalla writes that "sometimes the lapsing of a right, capable of being lapsed, is express and some times it is incumbent 6.41.:At..) and sometimes it is by indication (i)t.:1) or by implication (t0 V.)) except in the case of a right which (in Shariah) is not liable to be lapsed."
14. The waiver, abandonment or lapsing of a right, legally capable of being waived, abandoned or lapsed may either be expressly made by the person concerned, or it may be inferred from his conduct and all other attending circumstances of the case, It is not disputed by the learned counsel for the appellants that when the appellants asked for such modification in the said condition relating to the packing of rice, for the purpose of export, they did not specify that they were not to waive their right to obtain the other gunny bag or its equivalent price from the respondent No. 1. There was also no provision in the contract for compensation in such a case.
15. It also appears from the record that the appellants, as a result of some objection raised by the respondent No. 1, also produced amended Letters of Credit to the Accounts Directorate, deleting the work "New" from packing clause. This meant that delivery was to be made in the original used bags, which was accordingly made. At that time, too, the appellants did not make any reservation as to their right of claiming the other gunny bags or its equivalent price from respondent No. 1.
16. The learned counsel has referred to us section 20 of the Sale of Goods Act, 1930, but, on examination, it is found that the said provision of law does not advance the contention of the learned counsel for the appellants inasmuch as the property in goods passed to the appellants in the deliverable state after the bag was tied up to the ship's tackle as per para. 5 of the Notification referred to above. The appellants accepted the goods without any objection whatsoever in the process of shipment.
17. We may, however, refer to section 42 of the Sale of Goods Act, 1930, under which the appellants will be deemed to have accepted the goods as soon as the bags of rice were tied up to the ship's tackle and the goods were shipped to the buyer abroad, which is admittedly an act of the appellants inconsistent to the right of ownership of the respondent No. 1 in respect of the goods in question. By the acceptance of the goods in the deliverable state, as they were, and by not raising any plea for claiming the other bags or any compensation in lieu thereof, and, further, by getting the said goods shipped to the foreign buyer, in strict compliance of the terms of the Letter of Credit established in favour of the appellants, it is not open for the appellants to claim the other bag or its equivalent price. The appellant's right, if any, to claim anything by way of compensation for the other bags, which was, however, not for their benefit, finally lapsed on the acceptance of the rice having been loaded on the ship and its sailing to the foreign buyer.
18. The other contention of the learned counsel that the statement issued by the Assistant Director,, Rice T. P. X. Showed that the appellant's right did not lapse or was not waived by them has no force at all for several reasons ; firstly, that the said officer was not an authorised person to fix a liability on respondent No. 1 and, secondly, it was not an act of the appellants themselves affirming non- waiver in their favour and thirdly, the right, in the circumstances, had already lapsed and could not be said to have been revived either on the issuance of the said statement or on lodging the claim by the appellants with respondent No. 1.
19. Furthermore, these objections of the appellants relate to the findings of an Arbitrator and unless it is shown that the Arbitrator has misconducted himself or the 'proceedings or that the award has been improperly procured or is otherwise invalid, and the learned Single Judge has wrongly accepted the findings of the learned Arbitrator to be correct, we will feel reluctant to set aside the award and reverted the judgment of the learned Single Judge in the absence of its being proved to be illegal or erroneous. In this respect reference may be had to the case of Abdul Rehman Munshi v. Dr. Abdul Malik and others (1) and the case Province of East Pakistan v. Messrs Architect Engineer & Co. (2).
20. For the foregoing reasons, we dismiss this appeal with costs.
' FAKHRUDDIN G. EBRAHIM, J.-I agree that this appeal be dismissed with costs. {{FOOT NOTE}}
(1) 1968 SCMR 275 (2) PLD 1968 Dacca 245 {{FOOT NOTE}}