RAI SAHEB ULFATRAI HUKUMCHAND Vs. NAGARMAL GOPIMAL RAO

JUDGEMENT

(1.) THE plaintiff, who carried on business at Delhi, employed. the defendants, who carry on business in Bombay, as his pakka adatias to effect for him forward transactions in gold, silver, cotton and linseed. Certain transactions were outstanding on October 5, 1939, and the plaintiff says that on that date the defendants wrongfully closed those transactions. He gave to the defendants instructions to close those transactions upon the footing that they were still outstanding on October 14, 1939, and says that if the defendants had carried out those instructions, as they were bound to do, a sum of Rs. 4225-10-9 would have been found due to him on taking the accounts between the parties. THE defendants, on the other hand, say that they were entitled to close the outstanding transactions on October 5, 1939, and that, upon the footing that they were so entitled, a sum of Rs. 67-5-3 is payable to them by the plaintiff on taking the accounts on that day, and they counterclaim for that amount.

(2.) IT is necessary to ascertain what terms were arrived at for conducting the business between the parties, this being in dispute. The plaintiff before employing the defendants had previously employed Messrs. Dhanpatmal Diwan-chand to effect his forward transactions. One Ramnarain Jauhar was a partner in that firm. According to the plaintiff, he had arranged terms with Ramnarain Jauhar upon which the business was to be done including the payment of deposit and margin in respect of the various commodities. Ramnarain Jauhar joined the defendant firm. In the correspondence, to which I shall presently refer, he described himself as a partner in the defendant firm. According to the evidence of the defendants he was not a partner, but was employed for the purpose of introducing business with a possible partnership in view. This makes no difference, because although he has, according to the: defendants, improperly signed the letters, to which I shall refer, as a partner, the defendants accept responsibility for them.

(3.) A further question arising is as to the proper construction to be placed upon the paragraph in that letter, which I have already quoted in full, in regard to the plaintiff's right to do forward business without any deposit. According to the defendants, the word "or" in that paragraph means what it ordinarily would mean, viz., that it gave to the plaintiff alternative rights to do business in respect of the different classes of commodities mentioned up to the limits mentioned. According to the defendants, if the plaintiff did business in four lots of linseed, for instance, he would not be entitled, while such a contract was outstanding, to do business in any of the other commodities without paying a deposit. For the plaintiff it was argued that the word "or" should be given an inclusive or non-alternative sense. It was contended that it was the intention of the parties to do business in various commodities which are mentioned in the letter, and that the intention was to give the plaintiff the right to do business in any of those commodities up to the limit mentioned. If this had been the intention, I should have expected the word used to be either "and" or "and/or". I have to remember that a pakka adatia, who does forward business without an initial deposit, may incur a considerable risk if the market suddenly drops. In construing this part of the letter, therefore, I feel bound to give a strict meaning to the use of the word "or". I accept, therefore, the construction contended for by the defendants, and hold that once the plaintiff has done business to the limit mentioned in any one of the commodities specified, if he wishes to do business in any of the other commodities, he must, so long as the business already done to the limit mentioned is outstanding, pay deposit in respect of the further business.