Case: Jute &amp; Gunny Brokers Ltd Vs. M/S. New Central Jute Mills Co., Ltd

in question, that the Board did not specify a date within which the contract was to be entered into and that, finally, the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and, therefore, the contract was void under S. 5 (2) of the Act, if Ss. 5, 6 and 7 were in force at the date of the contract.6. The respondent companys aforesaid application for setting aside the award having come on for hearing, the learned Single Judge sitting on the Original Side reported the matter, under R. 2 of Ch. V of the Original Side Rules, to the Chief Justice for forming a larger Bench for hearing of the said application. A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench. Three points were urged before the High Court, namely, (1) that the Act was ultra vires the Bengal Legislature; (2) that even if the Act were intra vires Ss. 5, 6 and 7 of the Act were never brought into force and (3). that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce. The High Court negatived all the contentions raised by the appellant company and by its judgment date January 23, 1953, allowed the application and declared the award to be null and void, but directed the parties to bear their own costs. This appeal, as already stated, has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court.7. The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court, namely, that even if the Act were intra vires Ss. 5, 6 and 7 had never been brought into force, and therefore, the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable. He does not dispute that, by virtue of S. 16 of the Act, the notification issued on December 29, 1950, under S. 2 (1) of the Ordinance has to be deemed to have been issued under the Act, but he contends that even so the notification dated December 29, 1950, cannot be read as having brought Ss. 5, 6 and 7 of the Act into force, for it, in terms, specified December 30 1950, as the appointed day "for the purposes of Ss. 5, 6 and 7 of the Ordinance." He urges that this Court has to take the notification made under the Ordinance as it finds it and then, under S. 16 of the Act, to deem it to have been made under the Act. According to him the fiction created by S. 16 ends as soon as the notification is deemed to have been made under the Act and goes no further. He concludes, on the authority of the decisions in Hamilton and Co. v. Mackie and Sons 1889-5 T L R 677 and Thomas and Co. Ltd. v. Portsea Steamship Co. Ltd., (1912) A C 1 that, on a plain reading of it, the notification, when it is deemed to have been made under the Act, makes no sense, for it does not purport to bring any of the sections of the Act, into force but expressly brings Ss. 5, 6 and 7 of the Ordinance into force. He submits that it is not for the Court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act. We are unable to accept this line of argument. The decisions relied on by the learned Attorney General can have no application to the present cash. In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and, therefore, the only thing to be done in those cases was to lift bodily the relevant provision of the charter party and to insert it in and to read it as a part of the bill of lading. It was held that so read it became insensible, for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading.A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act".

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds].A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act".