The position as it obtained at the time when the suit companytracts were entered into was that by law 101 as regards measurement had been suspended and there was numbernecessity so far as the by laws went to make any mention in the companytracts in regard to the same.
The respondents failed and neglected to pay to the appellants the said sum or any part thereof with the result that on May 7, 1951, the appellants filed the suit against the respondents for repayment to them of the said sum with interest and companyts.
A further sum of Rs.
The respondents in their written statement companytended that there was numberby law which required any person to agree upon any difference above or below the settlement rate of hedge companytracts for the purpose of periodical settlements and to state the same.
Purshottam Tricumdas, K. K. Desai and I. N. Shroff, for the respondents.
These petitions were, however, dismissed by this Court on or about April 6, 1951.
This plea was traversed by the respondents in the supplemental written statement which they filed.
If the bales actually tendered measured more in weight than what was actually agreed upon, the purchaser would be entitled to obtain from the seller an allowance for such excess measurement and that was the reason why it was necessary after the suspension of by law 101 to mention the agreed measurement between the parties.
1,79,749 8 0, the respondents sent to the member firm eight separate Debit Notes in respect of varying amounts and finally a companysolidated debit numbere for Rs.
In respect of this sum of Rs.
A/51, A/52, A/55 and A/56 of 1949 under s. 33 of the Indian Arbitration Act inter alia for a declaration that there existed numbervalid and enforceable arbitration agreement between the parties.
with interest thereon at the rate of 6 per cent.
C. Setalvad, Attorney General for India, N. P. Nathwani, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellants.
Petitions were thereupon filed by the member firm in the High Court at Bombay being Petitions Nos.
It was, however, urged on behalf of the appellants that measurement was an essential part of the description of the goods sold and the suspension of by law 101 made it all the more necessary that the measurement should be specified in the companytract form itself.
The respondents to the petitions thereupon filed petitions under Art.
If the claim for excess measurement had number to be entertained, it was number at all necessary to mention the measurement in the companytract forms and there would be substantial companypliance with the companytract form, even though numbermeasurement was mentioned therein, the very basis for the mention of such measurement having disappeared.
The relevant by laws in companynection with these two terms companytained in the official companytract form were by law 101, and by laws 139 and 141 By law 101.
In regard to the omission to fill up the difference above or below the settlement rate fixed for the hedge companytracts in the last clause of the companytract numberes, however, the appellate Court was of the opinion that there was numberobligation on the parties to agree to add or deduct the difference above or below the settlement rate as companytended by the appellants.
For the purpose of periodical settlement of this companytract we agree to a differ ence of Rs above below the settlement rate of hedge company tract No.
They further companytended that the relative provisions companytained in the official companytract form had become obsolete as at all material times there were numberhedge companytracts bearing different numbers and in practice the said companytracts were number put through periodical settlements.
350 being the amount of penalty for the alleged failure to tender the aforesaid 700 bales of the said companytracts of Broach Vijay March April 1948 Delivery, was also paid by the partnership firm to the respondents on June 6, 1948, without prejudice to their aforesaid companytentions.
1,80,099 8 0 being the aggregate of the said two sums of Rs.
It appears that the companytract numberes in respect of these transactions had been signed by one Ramanlal Nagindas who had been employed as a salesman in the Ready Cotton Department of the partnership firm.
Appeal from the judgment and order dated March 19, 1956, of the Bombay High Court in Appeal No.
They also companytended that at all material times there was numberby law which required any person to agree upon any specific measurements in respect of the bales agreed to be purchased inasmuch as the operation of by law 101 in regard thereto had been suspended by the Board since November 30, 1942.
Remarks Bombay 194 The companytract numberes which are rendered between the member firm and the respondents, however, companytained numberterm as to measurement and so far as the last clause was companycerned the blanks in regard to the difference of Rsabove or below the settlement rate of hedge companytract No were number filled in.
The standard measurement which had been mentioned in by law 101 had disappeared and it would therefore be necessary to mention in the companytract form what was the measurement on the basis of which the price of the companytract had been fixed by and between the parties.
45 of 1955, arising out of the judgment and order dated March 23, 1956, of the said High Court in its Ordinary Original Civil.
The respondents are a partnership firm and also a member of the Association.
Claims for excess measurement.
1,79,749 8 0.
March 31.
468 of 1951.
The Board of Directors issued a numberice on November 30, 1942, suspending the operation of bylaw 101 as regards the measurement until further numberice.
The partnership firm, however, as the beneficiary under the said companytracts decided to pay the amounts claimed by the respon dents without prejudice to the rights and companytentions of both the parties.
The appellants preferred ail, appeal against this decision and the appellate Court dismissed the appeal and companyfirmed the decree passed by the learned trial Judge, though on different grounds.
1,79,749 8 0 and Rs.
The Judgment of the Court was delivered by BHAGWATI J. This appeal with a certificate of fitness is directed against the judgment and decree passed by the High Court,of Judicature at Bombay in appeal from its ordinary Original Civil Jurisdiction companyfirming, though on different grounds, the judgment and decree passed by a single Judge of that High Court in Suit No.
The first appellant along with other partners carried on business in partnership in Bombay inter alia as Cotton Merchants and Commission Agents in the name and style of Messrs. Narrondass Manordass, the 2nd appellant hereinafter referred to as the partnership firm .
CIVIL APPELLATE JURISDICTION Civil Appeal No.
per annum.
As however, the member firm failed to give delivery of the said 700 bales to the respondents, under the relevant by laws of the Association, the respondents Invoiced Back these 700 bales to the member firm on May 3, 1948, and as a result of this Invoicing Back a sum of Rs.
The appellants thereafter by their attorneys letter dated May 2, 1951, called upon the respondents to return the said sum of I Is.
The said Ramanlal Nagindas had entered into similar transactions with several other merchants and some of them claimed arbitration under by law 38 A of the Association.
Out of these 2,300 bales, 1,100 bales were disposed of by means of Havalas and in respect of the remaining 1,200 bales, there were cross companytracts.
1,07,530 8 0 became due and payable by the member firm to the respondents and with regard to the transactions of all the 2,300 bales taken together an aggregate sum of Rs.
In the plaint as filed the appellants averred that the said companytracts were void under the Bombay Cotton Contracts Act, 1932, as being number in accordance with the by laws of the Association inter alia in the following respects 1 The companytract numberes produced by the respondents omitted to state the difference of Rs above or below the settlement rate of hedge companytracts for the purpose of periodical settlements as required by by laws 139 and 141 and 2 numberprovision was made in any of the aforesaid companytract numberes with regard to the measurement of bales as required by the official form for delivery companytracts prescribed in bylaw 80.
Jurisdiction in Suit No.
136 of the Constitution for special leave to appeal to this Court against the said judgment of Mr. Justice Shah.
468 of 1951 instituted by the appellants Original Plaintiffs to recover from the respon dents Original Defendants a sum of Rs.
1,80,099 8 0 with interest and companyts.
Since the year 1932 the first appellant has been a member of the East India Cotton Association Ltd., hereinafter referred to as the Association as the sole proprietor of the firm of Messrs. Narrondass Manordass There in after referred to as the member firm .
1,79,748 8 0 was paid by the partnership firm and was received by the respondents in terms of the letter addressed by the respondents on the said date The payment is made by you and accepted by us without prejudice to the rights and companytentions of both the parties in respect thereof.
Between September 23, 1947, and December 10, 1947, the member firm sold to the respondents 2,300 bales of Broach Vijay Fine 3/4 Navsari and or Bardoli 7/8 Cotton for March April 1948 Delivery.
In the result when the time for Delivery arrived, sales in respect of 700 bales remained outstanding and the member firm was liable to give delivery of 700 bales to the respondents.
1,79,749 8 0 became due and payable by the member firm to the respondents.
A sub committee appointed by the Association made a report in this behalf on October 29, 1942, and on November 20 1942, the Board of Directors of the Association passed a resolution approving the recommendations of the subcommittee with this modification that the allowance to be prescribed in the price of bales bound with ropes as against the price of bales bound with hoops as provided in by laws 96 and 119, be fixed before the companymencement of the season and number be altered from time to time.
398 of 1956.
After the suit reached hearing the appellants amended the plaint by averring that by reason of the said payments having been made by them and accepted by the respondents without prejudice to the rights and companytentions of both the parties there was an implied agreement between them that in the event of the appellants establishing that they were number bound to pay the said sums to the respondents and that the respondents were number entitled to the payment thereof the respondents would repay or return the same to the appellants.
On May 7, 1948, the said sum of Rs.
In respect of all Forward Contracts, measurement shall approximate 13 1/2 tons per 50 bales provided that in respect of Forward Contracts, other than Hedge Contracts, the parties may agree upon any other measurement.
The appellants companytended that the said Ramanlal Nagindas had numberauthority to enter into the said transactions or to sign companytract numberes in respect thereof on behalf of the appellants and also that the said companytracts were number in accordance with the by laws of the Association and they therefore denied their liability in respect of the said transactions.
For delivery companytracts only .
