JESSIRAM JAGANNATH Vs. TULSIDAS DAMODHAR

JUDGEMENT

(1.) In this suit the plaintiff sues for a certain sum of money alleged to be due to him as the result of dealings between himself and the defendant in silver. According to the plaintiffs case there were forward contracts between the parties for the Maha and Fagan vaidas of 1967, that is to say, February and March 1911. The defence is that there was a settlement between the parties and that nothing is now due to plaintiff; in the alternative that whether there was a settlement or not the transactions were in furtherance of wagering, and, therefore, unenforceable at law.

(2.) In proof of the alleged settlement, there is nothing but the defendant s own word, supported by books of very questionable character. There is also a strange incident of a letter alleged to have been written and sent by the defendant in reply to the plaintiff s notice of demand. It is part of the plaintiff s argument that if there had really been such a settlement as the defendant now relies on, that would have been set up at the earliest opportunity ; whereas in fact it only appears in the written statement and is then made an alternative and really a subordinate defence. The defendant s answer is that by this letter he did immediately set up his present defence of settlement. The defendant has produced his press-copy of this letter, and it is certainly singular that he should have taken the trouble of getting it press-copied in the very unusual way he alleges. He has also produced a post office receipt to prove that on the date alleged he did post a letter to the address of the plaintiff. The plaintiff replies that he received somewhere about that time an empty envelope addressed in handwriting he did not recognise. I confess that I do not think it likely that the defendant should have intentionally omitted to enclose the letter in the envelope for which he obtained a postal receipt. Yet it is quite possible that by some inadvertence he may have omitted to enclose the letter in it. Except as bearing upon the relative veracity of the plaintiff and the defendant and upon the argument drawn from the alleged subordination of this line of defence and its being so long withheld, the point would have no great importance. I am not prepared to say that the plaintiff has deliberately sworn to a falsehood when he denies ever having received such a letter as the defendant swears that he wrote and posted to him. Now, as to the defendant s sworn testimony touching the settlement, it is contradicted by the sworn testimony of the plaintiff and his witness Ranchhoddas, both in my opinion much better witnesses than the defendant. The defendant s counsel has criticised the plaintiff s evidence insisting that it was evasive and untrustworthy. It is true that upon many points on which the Court desired information the plaintiff either could not or would not supply it. That may be accounted for by the great difficulty people of his class find in understanding that what appears to them almost a matter of course in daily practice seems to require so much explanation in the Courts. After having observed the plaintiff s demeanour very carefully throughout his long examination in the box, I am not prepared to say that he was a bad witness. Compared with the majority of his class, I am inclined to think that he was rather good than a bad witness ; while the worst that can be said of Ranchhoddas is that he is found to be indebted to the plaintiff in the sum of Rs. 10,000. He is, however, a wealthy man, and it can hardly be suggested that he has come forward to deliberately perjure himself on account of so relatively small an obligation. On the other hand he is a Bania like the defendant and his sympathies might be expected to be on the defendant s rather than on the plaintiff s side. The books by which the defendant has sought to support the alleged settlement are exposed to obvious criticism. I do not feel that I can place any reliance upon them. The plaintiff has charged the defendant with deliberately manufacturing the particular entries in these books in order to support his case, and that criticism has at least as good and solid ground to rest upon as can usually be found when documents of the kind are so challenged. The books are suspicious and it is, to say the least, quite possible that the material entries have been prepared for the purposes of this suit. I think, therefore, that this part of the defence entirely breaks down.

(3.) In the alternative the defendant has set up a defence which is only too common in this city, that the dealings resulting in the balance due to the plaintiff, for which this suit is brought, were in furtherance of wagering. Now, the contracts with which I have to deal were for the sale by the plaintiff to the defendant of fifty-two bars of silver for the February vaida and the purchase by the plaintiff from the defendant of sixty-seven bars for the March vaida. The February vaida settling date was the 25th of February and the March vaida settling date the 27th of March. There were side teji mandi contracts between the parties in connection with both the simple forward contracts which I have just mentioned. The settling date for the teji mandi contracts differs from the date of vaida or ordinary forward contracts ; and the existence of these teji mandi contracts has introduced some complication into what otherwise might appear to be an extremely simple case.