CHIMANRAM MOTILAL Vs. DIVANCHAND GOVINDRAM

JUDGEMENT

(1.) This is an appeal from (sic) Mr. Justice Blackwell. The case took several days (sic) of first instance and it has occupied more than a day (sic) Court, but the dispute is really confined within a small compass (sic) is agreed that on May 25, 1930, a contract was made (sic) which the plaintiffs agreed to sell to the defendants sixty bars (sic) and that that contract was negotiated on behalf of the (sic) by a broker named Dhanasing. There was a note of (sic) contract made in the plaintiffs Soda book in these terms :- (sic) old silver bars sixty to Diwanchand Govimdram deliverable on (sic) 30, by the hand of Dhanasing", and Dhanasing signed that (sic) in the plaintiffs book. The defendants case is that that note does not contain a complete record of the contract. They say that the quality of the silver was to be the highest quality which is known as 999, that the purchase-price was to include the customs duty, and that the plaintiffs were to get Kabul drawback certificates from the Customs. The learned Judge has found as a fact what the contract was. He says :- I hold that it was a contract for sixty bars of silver expected to arrive on May 30, and deliverable on that day of 999 hall-mark, the price to include customs duty and drawback certificates 60 be furnished by the plaintifis." That is to say he finds that the contract was as set up by the defendants, and on that (sic) holds that, inasmuch as the plaintiffs did not fulfil (sic) of the contract in obtaining drawback certificates, the defendants were entitled to repudiate the contract, and he, therefore, dismissed the action which was for damages for breach of the contract.

(2.) The only point on which any difficulty arose was as to the drawback certificates. There is no question that the silver was in fact 999 hall-mark. It is quite clear on the evidence that the defendants were in fact buying the silver for re-export to Kabul, and it was, therefore, very important for them that drawback certificates should be obtained. There was, as far as I can see, no difficulty in either side obtaining the drawback certificates, but unfortunately each party seems to have thought that the duty of obtaining the certificates rested on the other party, and nothing was, therefore, done until the documents had gone to the customs and it was then too late to obtain the certificates. The learned Judge's finding of fact as to what the contract was has been challenged in this Court, but, apart from the fact that the learned Judge after seeing the witnesses in the box preferred the evidence of the defendants witnesses to that of the plaintiffs, there are three documents which certainly support his finding. Those are Exts. 3, 4, and 6, which are entries made respectively in the books of the broker Dhanasing, in the books of another broker named Biharilal who was interested in the matter, and in the defendants books. All these three entries which are couched in quite different language refer to the fact as to the silver being bought on Kabul customs and subject to customs, that is to gay, they all support the defendants case. Of course it is perfectly true that the plaintiffs did not see any of these entries before they were produced in Court and they are not bound by them, but still if the entries are genuine as the learned Judge held that they were, they certainly support the view that the defendants themselves imagined that the contract was such as they have set up.

(3.) Then the next point taken by the plaintiffs is that, having regard to Section 92 of the Indian Evidence Act, the defendants were not allowed to give any evidence that the contract contained any provisions not included in Exh. A, which is the note in the plaintiff's book signed by Dhanasing. Section 92 has to be read with Section 91, and the effect of the two sections for the purposes of this case seems to me to be as follows. When the terms of a contract have been reduced to the form of a document, only the document can be proved. That is the effect of Section 91, and then Section 92 provides that in such a case no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms, and then there are several provisos, of which the first is:- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto ; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.