1. WAHEEDUDDIN 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.
2. 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.
3. Thereupon, the respondent cancelled the contract and claimed the difference between the market rate and the contract rate and claimed Rs, 2,06,250 vide Bill, Exh. 4, dated the 7th January 1961. The appellant failed to pay the said amount. The respondent buyers made a reference, Exh. P. 5, on the 16th February 1961, to the Narayanganj Chamber of Commerce and Industry for deciding the dispute between the parties in terms of the Arbitration clause. The appellant contested these proceedings but the Arbitrators, after hearing the parties on the 4th July 1961, by Award Exh. 9, accepted the respondent's claim and directed the appellant to pay Rs, 2,06,250 to the respondent.
4. The award was forwarded to the Court by the Registrar, Tribunal of Arbitration, Chamber of Commerce and Industry under section 14 (2) of the Arbitration Act, 1940, for enforcing it. The appellant contested the validity of the award in Title Suit No, 110 of 1961. They filed objections which were dismissed on the 31st August 1963 and the award was made a rule of the Court. 1 he appellant challenged this order in F. M. A. No, 90 of 1964 in the High Court of East Pakistan, Dacca. This appeal was dismissed on the 14th December 1965. This decision is being challenged in this appeal before us.
5. Special leave was granted in this case to examine the various objections raised by the appellant on the validity of the award given against them.
6. In support of the appeal, Mr. Shamsuzzaman, learned counsel for the appellant has raised the following objections on the validity of the award :- (1)That the reference on behalf of the appellant is signed by Mr. A. Sobhan, a partner of the firm, and as he was not authorised to sign the contract, the reference to arbitration is void.
7. (2)That M/s. M. Sarkies & Sons, who signed the contract were neither a person, nor a firm, nor a company but merely a department of M/s. James Finlay & Company Ltd. M/s. James Finlay & Co. appointed several attorneys to act on its behalf but M/s. M. Sarkies & Sons were not such attorneys.
8. The attorney was one Mr. C. W. Tassie but he signed the contract as M. Sarkies & Sons. It was contended that in these circumstances, the contract was void ab initio due to want of mutuality and there was no valid reference to arbitration.
9. (3)The Arbitrators have misconducted themselves in receiving rejoinders, Exhs. 8, 8 (a), C, C (1) and C (2) from the respondent behind the back of the appellant.
10. (4)That the award was improperly procured. Mr. Longwill, the Manager of the respondent 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. It is alleged that the respondent were able to find out the names of the Arbitrators and had influenced them through these officers.
11. These objections will be dealt with separately.
12. Objection No, 1 that Mr. A. Sobhan was not competent to sign the contract and, therefore, no valid reference has been made between the parties was neither raised before the Arbitrators nor before the Civil Judge, nor before the High Court. This point was not even raised in the petition for special leave to appeal. In view of this, this point cannot be allowed to be raised at this stage in this appeal before us.
13. The next objection that M/s. M. Sarkies & Sons are neither a person nor a company, nor legal person competent to enter into a legal contract was argued at length on behalf of the appellant. From the evidence placed on the record, it appears that M/s. James Finlay & Co. Ltd., is the parent company and M/s. M. Sarkies & Sons, is a department of that company which deals in Jute. Thus M/s. James Finlay & Co. is carrying on jute business under the name of M. Sarkies & Sons and is the owner of that business. It is not disputed that M/s. James Finlay & Co. Ltd., is a legal person and could carry on business under a different name and style. A legal person is entitled to carry on business in different names. It is proved on the evidence of Mr. M. A. Halim who is the Junior Officer of M/s. M.
14. Sarkies & Sons that M/s. M. Sarkies & Sons is a department of M/s. James Finlay & Co. Ltd., and M/s. James Finlay & Co. is carrying on business under that name and style. In my opinion, a legal person is entitled to carry on business under an assumed name and style and in law, there is no prohibition on it. Mr. Shamsuzzaman, learned counsel for the appellant, has referred to the cases of Rampratab Brijmohandas and others v. Gavrishankar Kashiram , Samrathrai Khetsidas v.
15. Kasturbhai Jagabhai , Bhagvan Manaji Marwadi and others v. Hiraji Premaji Marwadi , Ram Prosad Chimonlat v. Anundji & Co. and Hari Bundhu Pal and others v. Hari Mohand and others , to show that a firm consisting of sole proprietor cannot bring a suit in the name of the firm but must sue in the name of the proprietor. This point is not involved in the present case. No suit has been filed in this case on behalf of a sole proprietor and the decisions referred to above have no material bearing on the facts of the present case.1 2 3 4 5 It was next contended that the contract between the parties is signed in the name of M/s. M.
16. Sarkies & Sons and, therefore, there is no valid reference to the Arbitrators. This contention also has no force. In law, a contract can be signed in the trade name of a business by a person duly authorised on their behalf by the owners of such business. In Stroud's Judicial Dictionary (4th Volume), under the caption "Signed: Signature". it is stated at p. 2785 as under ,- "The mark of the testator (and, it seems whether he can or cannot write) is a sufficient signature even though his name is not placed against the mark (Re Field, 3 Curt. 752: Baker v. Dening 8 A & E 94; and, particularly, Re Bryce, 2 Curt. 325), or even where a wrong name is written against the mark; for in 'hat case "the execution is perfect as soon as the mark is affixed", and therefore, "it matters not what someone else may have written against the mark" (per Cresswell, J. 0., Re Douse 31 L J P M & A 172; see also Re Clarks 27 ibid 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)."
17. 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.
18. 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)".
19. 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."
20. 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 in the name of M/s. M. Sarkies & Sons, in any way, is defective or not permissible 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 Finlay & Co. Ltd., and the contract between the parties is quite a valid one.
21. 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 and Banarsi Das v. Cane Commissioner, Uttar Pardesh & another . 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."
22. The same view was expressed in the case of Banarsi 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 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.
23. 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.
24. There is no evidence on the record to show that these documents were brought to the notice of the Arbitrators and has caused any prejudce 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 Government 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."
25. 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 misconduct in the discharge of their duties.
26. The last point that was urged on behalf of the appellant is that Mr. L on will, 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 the6 7 names of the Arbitrators from the Chamber and must have disclosed them to the respondent. In my opinion the mere fact that these persons ere 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.
27. 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.
28. 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.
29. HAMOODUR RAHMAN, C. J.--I agree.
30. M. R. KHAN, J.--I agree. AIR 1924 Bora. 109 AIR 1930 Bom. 216 AIR 1932 Born. 516 I L R 49 Cal. 524 34 C W N 36 AIR 1955 SC 812 AIR 1963 SC 1417