RENCHORD DAS JEEVANDAS Vs. SHAH HEERALAL CHAPAI

JUDGEMENT

(1.) THE 2nd of the two plaintiffs in O. S. 197 of 1121 on the file of the Anjikaimal District Court has brought this appeal against the dismissal of this suit which was for damages for alleged breach of five forward contracts made by the first defendant to supply groundnut oil to the first plaintiff. THE factum of the contracts and of non-delivery of the goods pursuant thereto was admitted by the defence and the plea was that the contracts were illegal and unenforceable as they were prohibited by the vegetable Oils and Oil Cakes (Forward Contracts Prohibition) Order 1119 promulgated by the Government of Cochin on 4th April 1944 under R. 81 (2) of the defence of India Rules made applicable to Cochin by the Defence of India proclamation 8 of 1115. Though there was controversy in the Court below upon various matters the only point raised in the appeal is that the contracts in question are excluded from the operation of the said Order by a notification issued by the Government under clause 5 which provides that Government may by notification in the Cochin Government Gazette exclude any contract or class of contracts from the operation of the Order and such a notification was issued, in the fact it accompanied the Order both being of even date. THE relevant part of the notification is as follows: "in exercise of the powers conferred by clause 5 of the Vegetable Oils and Oil Cakes (Forward Contract Prohibition) Order 1119, government are pleased to exclude the following classes of contracts from the provisions of the said order, namely: 2) Forward contracts for specific qualities or types of any article to which the Vegetable Oils and Oil Cakes (Forward Contracts prohibition) Order 1119, applies and for specific delivery at a specified price, delivery orders, railway receipts or bills of lading against which contracts are not transferable to third parties. " (See page 364-65 of Rules and notifications under Enactments of Cochin, 1119 ). This Order and notification are word for word the same as the Vegetable Oils and Oil Cakes (Forward Contracts Prohibition) Order, 1944, and the Notification dated 12th January, 1944, issued by the Central Government under powers given to them under clause 5 of the Order. If the contracts come within the excluded category they are enforceable, otherwise not.

(2.) LEARNED counsel for the respondents submitted before us that there have been delivery orders in connection with these contracts. This point which is disputed is sought to be established by reference to the appellant's books of accounts which were produced by him in the court below for the purpose of proving the quantum of damages. The question that there have been delivery orders in this case was not raised in the court below. The opposite party had therefore no opportunity to meet that case and explain the circumstances which may appear to be against him. The court below did not advert to that aspect, as it was not urged before it. Being a question of fact we cannot allow the respondent to raise it for the first time in appeal.