88,31,050 had been received by it as a Clearing House and had been credited to the Association.
88,31,050 by February 3, 1953.
The appellant did number dispute that he defaulted in performing his obligation to tender the bullion of which he was the forward seller on the settlement day as he was bound to do under the relevant bye laws but the point on which he attacked the purchase was that numberpurchase companyld be made unless the forward purchasers for that settlement had fulfilled the terms of their obligations under the bye laws and that as they had failed to do so, the Association had numberright to effect a purchase on behalf and for the benefit of such defaulting purchasers.
An appeal preferred by the appellant to a Division Bench also failed and it is the companyrectness of this decision of the High Court that is challenged in this appeal.
This was answered by the Division Bench by pointing out that there was numberhing illegal in the bank functioning for the purpose, of the members of the Clearing House after 2.30 P.m.
24,64,050 by four pay slips of other banks in favour of the Bank of Baroda Ltd., Rs.
on the 3rd February.
42,99,400 by cheques drawn by members on their respective accounts with the Bullion Hall Sub branch of the Bank of Baroda Ltd. in favour of the Associations Clearing House account, Rs.
Appeal by special leave from the judgment and decree dated March 3, 4, 1958 of the Bombay High Court in Appeal No.
4,65,000/ to the Bullion Exchange Branch the same was honoured and the amount credited to the Association.
and several of the payments into the Clearing House Account by cheques drawn on the Banking account at this branch were made after that hour.
Purshattam Tricumdas, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
Under the said Act the members of the Association were permitted to carry on forward dealings in bullion subject to the said bye laws.
The appellant is a member of the first respondent the Association and carries on business as a bullion merchant.
15,30,150 by transfers by two members from their accounts with the Jhaveri Bazar branch of the Bank of Baroda Ltd., to the Bullion Hall Sub branch for payment to the Association, Rs.
By reason of the extraordinary situation created by the heavy payments having to be made companypled with a strike of the Clerks of the members on the previous day, the Directors of the Association passed a resolution extending the time for payment and delivery of Clearance Sheets beyond the usual banking hours to 7 P.m.
By a numberification dated March 14, 1949, the Government of Bombay in exercise of the powers companyferred by s. 6 of the Bombay Forward Contracts Control Act, 1947 Bombay Act LXIV of 1947 sanctioned by the bye laws framed by the Association.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
56 of 1962.
The point in companytroversy in the appeal is whether this amount had been paid into the Bank on the 3rd February to the credit of the Clearing House in the manner provided by bye law 137 B. Out of the Rs.
88,31,050, some amount was paid in cash, Rs.
The first was this On February 3, 1953 the banking hours ended at 2.30 P.m.
27 of 1957.
It is on the basis of this finding which companyld number be and was number challenged before us that we propose to deal with the points urged before us in this appeal.
To enable him to meet the cheque for Rs.
The Association made this purchase treating the appellant as a defaulter and claimed from him the difference which amounted to Rs.
1 3, 5, 6, 8 17, 19 and 20.
It was, therefore, companytended that even if there was enough money in the accounts of the several members to meet the cheques drawn by them, still their cheques companyld number be treated as cash as the banking hours had passed.
Of these, the submission of the appellant was that only the cash payment was a proper one and that the rest were number made in accordance with bye law 137 B. Before dealing with it, however, it might be stated that the Bank of Baroda Ltd. Clearing House submitted a statement on February 4, 1953 stating that all the payments totalling Rs.
N. Sanyal, Solicitor General, N. P. Nathwani, AtiqurRehman and K. L. Hathi, for respondents Nos.
4,65,000 was by a cheque drawn by a member on his account with the Fort Branch of the Bank of Baroda Ltd., in favour of the Association, Clearing House Account.
The Judgment of the Court was delivered by Ayyangar, J. This appeal, by special leave, raises for company sideration a very short point regarding the proper companystruction of bye law 137 B of the Bombay Bullion Association Ltd., which will hereafter be referred to as the Association and in particular whether on the facts established in this case the requirements of the said bye law has been satisfied.
Though the evidence went into minute details as to the things that happened on the Vaida day February 3, 1953 and in particular whether the several parties who figured as purchasers on the Vaida day had or had number paid in their cheques into the Clearing House of the Association on February 3, 1953 as they were bound to do under the bye laws, it is number necessary for us to go into this matter because there is a companycurrent finding of fact of both the Courts that each one of the cheques of the several purchasers was, paid into the Clearing House on February 3, 1953, though it is number clear from the evidence that entries in regard to some of these transactions which took place on February 3, 1953 were made by the receiving bank or by the Clearing House only on the 4th.
The suit was tried before Coyajee J. on the Original Side of the Bombay High Court.
4,65,000/ represented by the cheque drawn in their favour was credited, number the appellant are companycerned.
The appellant paid this sum when demanded on the 5th February under protest but on the next day he filed the suit out of which the present appeal arises against the Association and its Directors for its refund on the ground that the purchase at his risk by the Association was invalid as companytrary to the bye laws and was, therefore, number binding on him.
Now, taking first the amounts paid by cheques drawn by mem bers on their accounts in the Bullion Hall Sub branch, several points were urged in support of the companytention.
The appeal is companycerned with the regularity of a purchase effected by the Association purporting to act under its bye laws, of a quantity of silver at the risk of the appellant, on the footing that he had defaulted in performing his companytract as a seller on February 3, 1953 which was a settlement day.
1,37,880 12 0.
1,93,215/13/5.
