HIRJI BHARMAL Vs. BOMBAY COTTON LTD

JUDGEMENT

(1.) THE suit out of which this appeal arises is based on three contracts by which the plaintiffs agreed to sell cotton to the defendants. The first contract is dated "18th December, 1951 and by this contract the plaintiffs sold 500 bales of Bengal Deshi Cotton at Rs. 640/- per candy F. O. R. Bombay. The second and the third contracts are of even date 22nd December, 1951. By the first of these two contracts the plaintiffs sold 2145 bales also of Bengal Deshi Cotton at Rs. 627/- per candy F. O. R. Bombay, and by the second they sold 1000 bales at Rs. 627/- per candy F. O. R. Bombay.

(2.) THE main dispute with regard to these two contracts between the plaintiffs and the defendants was that according to the defendants this cotton was to come from Pcpsu region and the cotton was to be accepted by the defendants on buyers' selection, i. e. their selection. As against this the plaintiffs' contention was that this cotton was to be of Dhuri Line and was to be of "fair average quality". The plaintiffs relied in the suit on contracts which according to them were in writing and in the written contracts on which they relied these two terms appear, viz. , that the cotton was to be of Dhuri Line and was of fair average quality. The defendants contended that the contracts were oral, that they had never been reduced to writing, and they also contended that the contacts had not been signed by the parties. They therefore urged that the contracts were void and unenforceable. It appears that up to 28th January, 1952 samples with regard to 1015 bales in respect of the three contracts had been approxred by the defendants. On 29th January, 1952 the contract notes in respect of these three contracts were sent by the plaintiffs to the defendants and these contract notes, as already pointed out, contained the two terms which were in dispute between the parties. On 29th January, 1952 the defendants wrote to the plaintiffs pointing out :

(3.) BEFORE we turn to the question of law, which is really the substantial point in this appeal, we might briefly dispose of the question of fact, and the question of fact is whether the two contract notes annexed to the plaint embody the actual terms of the contract arrived at between the parties, and the second question is whether on the facts of the case it could be said that the contract was a written contract. The contract was actually entered into by a salesman of the plaintiffs and the defendants. The plaintiffs' salesman was one Chandrasen and the defendants' salesman was Umersi, and the learned Judge in his judgment has preferred the testimony of Chandrasen to that of Umersi. He has also accepted the evidence of Barot as to what transpired at the interview between him and Hirji, and if that evidence is to be accepted it is clear that Hirji withdrew the objections be had raised to these two terms of the contract and accepted the terms embodied in the contract notes sent by the plaintiffs. it is perfectly true that after this interview the contract notes were not sent back by the plaintiffs to the defendants and a point has been raised by Mr. Dcsai that as the contract notes were not sent back and were not accepted by the defendants, the contract could not be said to be a contract in writing. in our opinion, that is not the true position. if we are to accept the evidence of Barot -- and we see no reason to differ from the learned Judge in his appreciation of this witness' testimony, -- then the position is clear that the terms of the contract were reduced to writing, that the written contract was sent to the defendants, and the defendants raised a dispute with regard to some of its terms. When that dispute was settled between Barot and Hirji, then the defendants accepted the written contract, and the mere fact that the contract notes were not again submitted to the defendants and continued to remain with the plaintiffs cannot in any way alter the legal position. Barot has explained the reasons why these contract notes were not returned to the defendants for their signature after the interview. He says that it was left to some clerk to return the contracts and either due to the negligence or dishonesty of that clerk the contract notes were not returned to the defendants. On the question as to whether the defendants' version with regard to the actual terms of the contract or the plaintiffs' version should be accepted, to a large extent the question turns on appreciation of oral testimony and of considering the demeanour of witnesses, and as already pointed out, the learned Judge has preferred the evidence of Chandrasen to that of Umersi. With regard to the interview, unfortunately Hirji was dead at the date of the trial, but the evidence put forward is that of his son Damjibhai. The learned Judge was not at all impressed by the evidence of Damjibhai and he has accepted the evidence of Barot as to what transpired at the interview. If, therefore, the evidence as to interview of Barot is accepted, it is clear that the terms of the contract between the parties were those as embodied in the contract notes sent by the plaintiffs to the defendants and annexed to the plaint.