' This is an application under section 33, Arbitration Act whereby the applicants have sought a declaration that the arbitration agreement contained in the contract between them and the respondents herein dated 29-3-1968 has ceased to nave effect and is inoperative.
2. Briefly, the facts which form the background of this case, are that Messrs Haji Hashim Haji Ahmed & Brothers, applicants herein, agreed to purchase and export, and the Trading Corporation of Pakistan the respondents herein, agreed to supply 120000 metric tons of Maserati rice at the rate 120 per metric ton. The terms and conditions of the contract were reduced to wriiing in an agreement dated 29.3-1968 duly executed by the parties. The mean quantity stipulated to be supplied was, as aforesaid, 120000 metric tons with an option to the sellers of 10% increase or decrease. The goods had to be shipped according to the agreed schedule of shipment as under
(i) From 1-4-1968 to 30-6-1968-30000 tons.
(ii) From 1-7-1968 to 30-9-1968-30000 tons.
(iii) From 1-10-1968 to 31-12-1968-30000 tone.
(iv) From 1-1-1969 to 31-3-1969-30000 tons.
' The contract expressly stipulated that time shall be of the essence of the contract in the following terms :- "Time shall be of the essence of the contract for shipment of rice in four shipping periods mentioned above as well as for total quantity."
3. The applicants admittedly short-shipped the goods in the second and third shipping geriods to the extent of 6442 tons and 27628 tons, respectively. But they attributed their inability for lifting the entire stocks during the said two shipping periods, to the acts of the respondents in violation of the contract. The uplifted stocks were disposed of by the respondents in the open market locally. And the alleged loss suffered thereby was sought to be reimbursed by encashment of bank guarantee furnished by the applicants under the terms of the contract.
4. Presumably compelled by these circumstances, on 1-1-1969 the applicants moved this Court under sections 20 and 41, Arbitration Act, seeking. To have the dispute between the parties referred to arbitration and to restrain the respondents from encasing the bank guarantee. By order dated 30-1-1,,,69 this Court referred the matters in dispute between the parties to the sole arbitrator for decision. In the arbitration proceedings before the sole arbitrator, the respondents filed their written statement claiming Rs, 47,45,845 as damages on the plea that the applicants had committee breach of contract by not lifting the entire stipulated quantities during the aforesaid two shipping periods, resulting in loss suffered by them intern account of resale of Vie stocks at lower than the contractual price.
5. The arbitrator by his awar9 dated 20-8-1970 awarded a sum of Rs, 10,02,125 to the respondents.
The award has been filed in this Court (vide Suit No, 376/70) and is being contested by both the parties.
6. It will be noticed from the above narration of facts that the dispute which was referred to the arbitration te rtained to the second and third shipping periods. Before the conclusion of the arbitration proceedings, however, the respondents on 29-9-1969 wrote to the applicants informing them that the last quantity of 30003 tons pertaining to the fourth shipping period had been sold by them and claimed equivalent of .60 lacs by way of damages. The applicants repudiated the claim but it seems no further action was taken by the respondents in pursuance of their aforesaid claim for 2i years until they served the applicants a fresh notice dated 8-3-1972. In this notice the respondents alleged that as to the fourth shipping period, the total quantity of 42000 metric tons (30000 mean plus 12000 in virtue of the option clause of the contract) was to be exported by the applicants before 1.4-1969 wherein they had failed and the quantity was resold resulting in loss to the respondents to the tune of 1,12,59,904 for the difference in prices between the contract price and the re-sale price etc. A demand for payment of this amount was made, failing which it was threatened that the arbitration agreement contained in the clause 20 of the contract shall be invoked. The applicants by their reply dated 20-3-1972, once again repudiated the claim of the respondents. Thereupon the respondents served the applicants notice dated 22-3-1972 intimating the appointment of Mr. Aslam Abdullah Khan, Secretary, Election Commission of Pakistan, to be their sole Arbitrator to settle by arbitration the disputes that are now pending between the parties.
The arbitrator, thus appointed, wrote to the applicants on 25-3-1972 intimating them of his having entered upon the reference and calling upon the respondents to file their claim against the applicants on or before 8-4-1972.
7. The present application under section 33, Arbitration Act was thereupon filed on 7-4-1972 by the applicants seeking to have the effect of the arbitration agreement determined as stated above.
8. In support of the application Mr. A. K. Brohi, learned counsel for the applicants raised a two-fold contention. Ne first contended that in the first arbitration it was incum5ent upon the respondents to submit their entire claim before the arbitrator so that all the existing disputes including the claim relating to the fourth shipping period were determined by the arbitrators, for it is not permissible in law to break up the dispute for piecemeal submission. The second contention of Mr. Brohi was that in any case the claim presently sought to be enforced is barred by limitation. As to the first submission Mr. Brohi went on to argue that although the contract stipulated lifting of the goods by installments, it was essentially a single indivisible contract. If therefore, the contract was broken, in any manner, it was broken en bloc and not in part only. In this connection, learned counsel pointed out that the case of the respondents all along was that the applicants were guilty of anticipatory breach and therefore, the necessary consequence was that the entire contract came to an end leaving no part of it surviving and operative. Proceeding from these premises learned counsel went on to contend that once the arbitration clause was invoked and the disputes referred to arbitration, culminating finally in the award passed by the arbitrator, the arbitration clause stood exhausted.
Accordingly OA arbitration agreement no longer survives to cover any remaining disputes arising out of the contract. It was further urged that once the cause of action arose in respect of the contract as a whole the respondents were under the legal obligation to bring it under adjudication in the previous arbitration. Their failure to include the claim as to the fourth shipping period forming part of the same cause of action, therefore, precluded them from seeking fresh reference to arbitration in view of the bar contained in Order II, rule 2, C. P. C.
9. Mr. A. I. Chundrigar, learned counsel for the respondents refuting the contentions of Mr. Brohh submitted that there is nothing on the record to show that the respondents had rescinded the contract and therefore, the contract did not come to an end even after the applicants committed the breach of its terms as to the second and third shipping periods. According to Mr. Chundrigar, in a contract for the sale of goods providing for instalment-wise deliveries separately paid for, such as the present one the failure on the part of the buyer to take delivery of one or more instalments does not ipso facto result in the repudiation of the whole contract. He therefore, submitted that the cause of action as to the claim relating to the fourth shipping period, which had not yet commenced to run by then, had not arisen. On the questions of law raised on behalf of the applicants, learned counsel contended that there can be a number of arbitrations under the same arbitration agreement. According to him, under the terms of the contract in this case, each shipping period could give rise to a separate and independent cause of action ; and therefore, disputes arising out of each shipping period could validly be submitted to arbitration successively.
10. Now it is common ground that the contract stipulated for delivery of the goods by installments spread over four shipping periods. The effect of breach in respect of one or more installments by the buyer or the seller is governed by section 38 of the Sale of Goods Act, 1930 which reads as follows :- "38.-(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments.
(2) Where there is a contract for the sale of goods to be delivered by the stated installments which are to be separately paid for, and the seller makes no delivery of defective delivery in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments it is a question in each case depending on the case, whether the breach of the contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, bat not to a right to treat the whole contract as repudiated."
A bare perusal of this section quite clearly makes out that a breach an installment contract regarding one or more installments does not necessarily discharge the performance of other installments. If the contract is severable and each installment is considered deliverable as if under a separate contract, the breach in respect of one installment will not affect the obligation of each contracting party in regard to future installments. It is however, as is clearly spelled out by the provisions of the statute, a question of construction of the contract in each case as to whether an entire contract is to be split up for the purpose of performance only or whether there are separate and several contracts. A contract in swab, a case maser fit tea the full delivery may amount to total failure of consideration, for when thei consideration is entire by failing partially it fails entirely.
11. Mr. Brohi invited my attention to the clause of the contract relating to the schedule of shipment, the relevant part of which has been reproduced in the foregoing part of this order. This clause stipulates that time shall be of the essence of the contract for the shipment of the goods in the four shipping periods mentioned as well as for the total quantities. Learned counsel therefore, contended that if the time was of the essence as to the total quantities, it follows that in case of breach of contract as to one of the shipping periods would amount to the breach of the whole contract. He next referred to the award which sets out in detail the respective cases and contentions of the parties as to the disputes under adjudication under the first arbitration. It was his contention that the case of the respondents in the first arbitration was all along that the applicants were guilty of anticipatory breach of contract and that the contract was terminated w,e,f, 1-1-1969.
12. Before considering the contentions of the learned counsel in relation to the facts of this case, I shall first examine the legal questions raised by Mr. Brohi. Now Mr. Brohi submitted that if the contract is broken the aggrieved party is under the legal obligation to include his entire cause of action or claim arising from such breach, in his submission to arbitration, for once the arbitration agreement is invoked it gets exhausted on conclusion of the arbitration. I find no warrant for the wide proposition that there can be only one reference under an arbitration agreement. There is nothing in the Arbitration Act so as to restrict the right of an aggrieved party and there can be cases where successive resort can be had to arbitration if B successive disputes arise in a series of transactions under the same contract as long as the contract remained operative and disputes arise regarding each such transaction separately. In H. E. Daniels v. Carmel Exporters and Importers Limited (1) two separate disputes arose out of -a contract of sale, the first as to the quality of the goods and later, as to whether the goods were of the contract description or not. The parties had agreed to refer all disputes arising out of the contract, but the sellers objected to the arbitration of the second dispute on the ground that it was res judietzta. The Court held that at the time of first arbitration there was only one dispute between the parties, namely, as to the quality of the goods.
The second dispute was clearly a dispute arising out of the contract of sale and consequently the parties had agreed to refer it. Similarly, in Ravee v. Farmer (2) it was held that an award on a submission of all matters in difference is no bar to the recovery of a demand which, though it existed as a claim at the time of the reference, was not then a matter in difference and had not been referred to the arbitration. Thus whether the arbitration agreement gets exhausted with one arbitration is a question in each case depending on the scope of the submission clause, whether it is restricted to one arbitration or contemplates a reference of disputes arising out of the contract from time to time. The arbitration clause in the present contract is couched in such all-embracing language as follows "Any dispute or question of any kind arising out of or under the terms of the contract . . . . . . . And any dispute relating to its construction or any portion thereof after the execution of the contract
(l) (1953) 2 Q B 242 (2) (1791) 4 T R 146 ' shall be referred to a decision of a sole arbitrator to be nominated by the seller, upon every and any such reference the assessm ent of the cost incidental to the reference and award respectively shall be in the discretion of the arbitrator.
' I am therefore, of the opinion that the present arbitration did not get exhausted by the first arbitration and its scope was, wide enough to allow successive arbitration.
13. This does not, however, mean that a party to a dispute covered by the submission clause is at liberty to split up his cause of action and submit only a part of claim or some of the matters in dispute at one time and seek a fresh reference with regard to the rest of the matters in a subsequent arbitration. That splitting up of the claim is prohibited in a Court of law is undeniable in view of the provisions of Order H, rule 2,D C. P. C. Which requires that every suit should include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action and the omission to sue in respect of any portion of the claim bars any further action in respect thereof.
This Rule is based on the principle that defendants should not be twice vexed for one and the same cause. Although Mr. Chandigarh made his submissions on the assumption that the rule could be attracted in this case for his argument was that the cause of action for each installment of the goods was an independent cause, the bar contained in the aforesaid rule would apply to arbitrations has vexed by mind to some extent.. For it is well-established that the technical rules of procedure contained in the Code of Civil Procedure are not extended to arbitration proceedings.
14. In H. M. Daniels Limited v. Carmel Exporters and importers Limited, to which I have earlier referred, I have however, found authority for the view that the rule is applicable in the case relevant for this purpose, were that the parties entered into a contract for sale and purchase of a quantity of China Star aniseed, which provided for quality to be "about as per sealed sample". The buyers claimed arbitration on the ground of defect of quality and an award was made in their favour. Later, the buyers, alleging the discovery of a hidden fault in the goods, claimed a second arbitration on the ground of misdescription. The sellers refused to participate in the arbitration, stating that the contract had already been arbitrated once and that the case was res judicata. Nevertheless, the second arbitration took place at which an aware was made in favors of the buyers. The buyers then brought proceedings to enforce the award. The plea of res judleata was reiterated before the Court of Appeal. The Court, although decided the case in favors of the buyers on a different point, held the view that the sellers would have succeeded if they had raised the res judlcata point before the arbitrator. In reaching this conclusion Picher, J. Relied on an earlier case of the Court reported as Conquer v. Boot (1), which was an action in Court of law decided on the principle of res judicata.
It may be stated that the term res judicata is used in different senses in England and in Pakistan.
What the English lawyers call res judicata namely the rule which prevents a party from suing again on the same cause of action is dealt with in Pakistan by Order II, rule 2, C. P. C. Whereas what is res judicata in Pakistan is dealt with in England under the breach of law of estoppel by record which relates to judgment inter partes.
(1) (1928) 2 K a 336
15. In the light of the foregoing, I have come to the conclusion that neither on principle nor on authority I can accept the contention that in every case a single arbitrator would exhaust the arbitration agreement. Authoritative view seems to support, on the other hand that one contract may give rise to more than one cause of action which may be referred separately and successively to arbitration. Furthermore, no exception can be taken to the proposition that even in the case of arbitration an aggrieved party is bound to submit his entire claim arising out of the same cause of action in the same arbitration.
16. I would now turn to the main question at issue between the parties whether the contract as a whole stood terminated before the differences between the parties were referred under the first arbitration. As observed at the outset in case of installment contracts whether a breach in respect of one or more installments constitutes a repudiation of the whole contract or whether it is severable breach not giving a right to the other party to treat the whole contract as repudiated, is a question dependent in each case, on the terms of the contract and the circumstances of the case.
For the decision of this question it is necessary at this stage, to notice some further relevant facts of this case.
17. I have already mentioned the broad framework of the facts which led to the first arbitration.
There is no dispute over the fact that the applicants short-lifted a certain quantity of goods during the second and third shipping periods. After this on 31-12-1968 (i,e, on the last date of the third shipping period) the applicants wrote to the respondents to say that the essential understanding underlying the contract was that the rice would be sold in the International Market at the minimum rate stipulated in the contract, but it was no longer possible to do so. The letter stated "The fact that we have not been able to ship 31,000 tons by 31st December, 1968, indicates not a failure on our part, but a recognition of the prevailing conditions in the World Market which rendered it impossible for us or any one else to have effected the sales in question on the World Market for foreign exchange."
' The applicants on this basis offered to fulfil their obligations under the contract by paying the price in equivalent Pakistani currency and secure as much foreign exchange as possible.
Simultaneously they warned the respondents inter alia that there snail be no attempt to sell or re- sell the rice up to 31-3.1969 (the last date of the fourth shipping period). The respondents by their reply dated 1-1-1969 rejected the over of the applicants and asserted that the applicants had "failed to comply with the terms" of the contract. In this letter they also gave notice that the short- shipped quantity would be sold at the risk of the applicants. Thereupon the applicants on 17-2-1969 wrote to the respondents offering to ship immediately 21,000 tons to foreign buyers at various prices, the average of which worked out at pound 111 per metric ton and the remaining balance at the same price level within the stipulated period. The applicants followed up by another letter of 25-2-1969 wherein they accused the respondents that by entering into a contract for export of 34070 tons of rice at pound 109/15 F. O. B. Per metric ton to a foreign party the respondents had "established a level of market price" and as such "no buyer in the world market will now be prepared to buy from any one Basmati rice at pound 120 per ton". Once again the respondents spurned this offer as being contrary to the terms of the contract. Finally the applicants by their letter on 31-3-1969 reiterated their offer to pay the price of goods in Pakistani rupees for the last instalment pertaining to the fourth shipping period, which was incidentally expiring on that date and took up the stand that the contract had stood frustrated. On 2-4.1969 the respondents gave to the applicants notice of re-sale of goods and sold the goods thereafter.
18. Mr. Chundrigar referring to the above-mentioned correspondence between the parties submitted that the applicants had clearly kept the contract alive and contended that on the other hand there is nothing to show that the respondents rescinded the contract. Thus, according to the counsel, a breach of contract as to the fourth shipping period finally occurred on 31-3-1969. The learned counsel cited Radial Kothari v. Lakshmi Chand (1) in support of his submission that each shipping period gave rise to successive obligations breach of one of which does not amount to repudiation of the whole agreement, though it may give rise to separate cause of action. Mr. Brohi, on the other hand, argued that the contract stood repudiated by the applicants' letter dated 26-12- 1968 wherein they had pointed out to the respondents that their deal with Yugoslavia at the rate of pound 105 per metric ton bad frustrated the applicants' offer to sell 35,000 tons on 1-1-1969.
Additionally he contended that having exercised their right of re-sale of the short-shipped goods on 24-1-1969, the respondents clearly rescinded the contract and cannot now be allowed to plead that the contract remained operative thereafter.
19. The main question is, was the contract rescinded or did it come to an end before the submission in the first arbitration ? If the answer is yes, the parties were absolved from future obligations under the contract (except of course for breach thereof) and in that case the respondents were bound to put in their entire claim for the breach of contract as a whole.
20. I would agree with Mr. Brohi that the applicants had by their letter of 26th December, 1968 clearly repudiated the contract by their unequivocal refusal to accept the goods at the stipulated price on the allegation that the respondents were responsible for bringing down the price in the international market. But would the unilateral act of repudiation by a party to the contract have the effect of terminating the contract or in other words would the contract ipso facto stand rescinded ?
The right of rescission of the contract has been always held to vest in the aggrieved party and not in the party guilty of the breach. For the purposes of the present case I am unable, of course for obvious reasons, to consider whether the applicants were justified to assert that the contract was frustrated, as that issue is sub judice in the previous proceedings. The argument has proceeded on the assumption that the repudiation by the applicants whether justified or not had the effect of bringing the contract to an end.
21. In Heyman v. Darwin Ltd. (2), while considering the effect of repudiation by one party to the contract unless the other accepts it, Viscount Simon L. C. At page 340 of the report observed : "If one party so acts or so expresses himself, as to show that he does not mean to accept and discharge the obligation of contract any further, the other party has an option as to the attitude he may take up. He may, notwithstanding so-called repudiation, insist on holding as co-contractor to the bargain and continue to tender due performance
(1) AIR 1938 Rang. 364 (2) (1942) 1 All E R 337 'of his part. In that event the co-contractor has the opportunity of withdrawing from his false position, and, even if he does not, may escape the ultimate liability because of some supervening event not due to his own fault which excuses or puts an end to further performance."
'The learned Judge cited with approval the observations of Lord Summer in Hirji Muiji's case (I) as under t "Rescission (except by mutual consent or by a competent Court) is the right of one party, arising upon conduct by the other, by which he intimates his intention to abide by the contract no longer. It is a right to treat the contract as at an end it he chooses to claim damages for its total breach, but it is a right in his option."
'Concluding his discussion Viscount Simon L. C. Remarked : "However, repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation, on the one side, and acceptance of the repudiation, on the other."
' I am, therefore, clearly of the view that the applicant's refusal to abide by the contract in its original terms did not have the effect of terminating the contract, as it is quite obvious that in the correspondence that ensued, the respondents all along treated the contract as subsisting and there is nothing on record to show that they exercised their option to treat the contract as terminated so as to absolve the applicants of their obligations under the contract. The subsequent correspondence between the parties, as detailed above, only dealt with the alteration of the terms of contract and for accepting the altered performance.
22. In this view of the matter the contention that the breach of contract in respect of some of the installments would result in repudiation of the whole contract also becomes immaterial. Section 38(2) of the Sale of Goods Act obviously governs the question as to, in what cases such breach would entitle the party other than the one guilty of breach to treat the whole contract as repudiated. But considering the legal position, as discussed above, I am unable to read in the provisions of this subsection the meaning that by his own default a party to such contract can plead that the contract was rescinded unless the aggrieved party accepts the repudiation. The significant words of the subsection which clearly reflect this meaning are "whether the breach of contract is a repudiation of the whole contract, or whether it is severable breach giving rise to a claim for compensation, but not a right to treat the whole contract as repudiated". This would make it abundantly clear that the subsection provides protection to a party guilty of breach in respect of one or more installments against the other party treating the whole contract as repudiated. Thus the provisions of this subsection are material only in case there is a dispute that the innocent party had no right to hold the contract as repudiated. But this section cannot be invoked by the party in breach to unilaterally plead rescission of the contract even if circumstances exist justifying the other party to treat a breach as repudiation of the entire contract. The election by a party not in default to exercise his right of rescission by treating the contract as repudiated may be evinced by words or conduct. In this connection it is significant to
(1) 1926 A C 497 ' note that the first arbitration was invoked by the applicants and not by the respondents. It is, therefore, not in any way possible to hold that the respondents accepted the repudiation of the contract.
23. But Mr. Brohi contended that by exercising their right of re-sale the respondents brought an end to the contract in terms of subsection t4) of section 54 of the Sale of Goods Act, which is in the following terms : "Where the seller expressly reserves a right of re-sale in case the buyers should make default, and, on the buyer making default, resells the goods, the original contract of sale is thereby rescinded, without prejudice to any claim which the seller may have for damages."
' In support of his submission the learned counsel referred to R. V. Ward Ltd. v. Bignall (1) but the facts of that case are clearly distinguishable. The contract in that case was for sale of two motor- cars for a total price. The buyer paid a deposit leaving the cars in possession of the seller pending the payment of the balance. Subsequently he declined to make the payment and take delivery on the alleged ground of misrepresentation as to the date of manufacture of one of the cars.
Eventually the seller sold one of the cars by virtue of his statutory right of re-sale and sued the buyer for damages. It was held that the resale of one of the cars effected a rescission of the whole contract as the seller by the act of re-sale put it out of his power to perform his contract and his action was inconsistent with the subsisting sale to the original buyer. Thus, it is clear that the cited case was not an installment contract but a single indivisible contract. However, in the present contract, if the respondents re-sold the goods short-shipped, it cannot be said that thereby they put it out of their power to perform their contract as to the future installments.
24. On an examination of the two sections, namely, sections 38 and 54 of the Sale of Goods Act, 1 am of the view that the provisions of sub- section (4) of section 54 are not applicable to a case like the present one, if the seller after breach by the buyer, of one or more installments, re-sells the goods which the buyer refuses to take delivery of subsection (2) of section 38 clearly stipulates that a breach in relation to one installment does not invariably amount to repudiation of the whole contract. According to clause 13 of the contract, which is relied upon, as the express provision reserving the right of re-sale, the property in the rice was to endure to the buyers (applicants) "if the bag is tied to the ship's tackle subject to the reservation of right of disposal of rice by the seller (respondents) until payment of total price. " Obviously, therefore, the right under the contract could be exercised on the passing of title in the goods after the bag was tied to the tackle of the ship. It is not the case of the applicants that the respondents resold the goods after shipment. Clearly, therefore, the goods were not resold in exercise of the right of re-sale reserved by the contract. The provisions of subsection (4) of section 54 did not, therefore, come into play. The right that was reserved was the right of unpaid seller after the title to the goods passed to the buyer. Until the seller has appropriated the goods to the contract, he is obviously entitled to sell any goods to which he has title. This contention, therefore, fails.
25. However, this does not conclude the matter. Mr. Brohi was on firmer ground in his submission that the plea of the respondents in the first arbitration was that the whole contract was rescinded on 31-12-1968 relieving
(1) (1967) 1 Q B 534 'them of further obligations under the contract. In this connection I was referred to various passages of the award. In the discussion of issues Nos. 3 and 6 the arbitrator (at page 10 Annexure G) after referring to the respective pleas of the parties observed : "The question for consideration is whether the T. C. P. Committed breach of the agreement by treating the contract as terminated and proceeding to enforce bank guarantees on 1st January 1969. The T. C. P.'s stand is that the third shipment period concluded on 31st December, 1968 and because the respondents (applicants) had claimed frustration of the contract on 26th December, 1968, they (T. C. P.) were not under any obligation to keep the contract alive after 31st December, 1968."
' The Arbitrator reproducing the arguments of Mr. Pirzada, counsel for the respondents with reference to letters of 26th December, and 31st December, 1968 written by the applicants observed : "These letters amount undisputedly to bleach on the part of the respondents (applicants) and therefore T. C. P. Were justified to determine the contract on any one of these dates and in any case on 1-1-1969."
' The arbitrator summarized his conclusion by stating as under : "The agreement was determined by T. P. C. On 1.1-1969 on the basis of the respondents' (applicants) letters dated 26-12-1968 which clearly amounts to undisputed breach on the part of the respondents."
26, The above said extracts of the award clearly establish that the respondents' plea in the arbitration was that they had treated the contract as repudiated on 26-12-1968 and in exercise of their option terminated the same. Having taken this plea, by the doctrine of approbation and reprobation they are estopped from pleading now that they did not accept the repudiation of the contract by the applicants and, that their contract was alive up to the conclusion of the fourth shipping period by 313.1969. In M. R. Qureshi v. Government of West Pakistan (1), their Lordships granted leave to appeal, where a contradictory stand as to the benefit of War Services to the Assistants employed in the Civil Secretariat by the Government was taken on behalf of the Government. Even otherwise this principle is well recognized that a party cannot be allowed to take inconsistent pleas in the same proceeding and specially in a case where the party has invited the Court to adopt a particular course, the party is debarred from pleading contrary in such position. In the aforementioned case the Supreme Court extended the principle in the case of the same party in two different cases. J am, therefore, of the confirmed view that the respondents are estopped from going back upon their plea that the contract stood terminated on 1-1-1969. If this is the position then, as discussed above, the respondents could not split up their claim and had to include their entire claim including the alleged damages arising out of the breach relating to the fourth shipping period in the previous arbitration. This clearly leads to the inference that except for the purposes of the first arbitration the arbitration agreement is no longer available to raise the present dispute which was a part of the cause of action submitted earlier, by way of a fresh reference.
27. In the result I would allow this application and declare that the arbitration agreement contained in clause 20 of the agreement dated 29-3-68
(1) 1960 SCMR 33 ' executed between the parties ceases to have effect and is inoperative as to the disputes presently sought to be referred.