PESTONJI JEHANGIRJI Vs. JAISINGDAS HANSRAJ

JUDGEMENT

(1.) The appellants are the heirs and executors of Jehangirji Hormasji, a merchant in Bombay. Jehangirji had certain transactions with the respondents, who are a firm of merchants trading at Khamgaon ; and on 23 March 1892 he sued the respondents in the Court of the Civil Judge at Akola for Rs. 24600-1-6 as the balance due to him on those transactions. The respondents brought into Court Rs. 2571, which they admitted to be due, and they denied liability for the rest. The Civil Judge at Akola, on 30 April 1897, gave decree for Rs. 13,421. On appeal, the Judicial Commissioner of the Hyderabad Assigned Districts, on 29 November 1899, reversed this decree, holding that the respondents were liable for 110 more than the sum brought into Court. The question in the present appeal is which of those judgments is right.

(2.) On the face of the documents the contracts now in dispute were sales of cotton by Jehangirji to the amount of 2800 Bojas; and, although in each case the sale purports to be to a third party, yet it is common ground that by registering the sale note the respondents, to whom it was transmitted, made themselves liable, as the agents of Jehangirji, to the purchaser. It is also common ground that delivery of the 2800 Bojas not having taken place, the appellants must be debited with some sum representing those undelivered Bojas, and the whole question is, with what sum ? The case of the respondents is that it was an implied term of the contract and that the rate payable for cotton not delivered should be fixed by a certain Committee of Khumgaon merchants dealing in cotton ; that this body, called a Panchayat, has fixed the sum at Rs. 57-14 per Boja ; and that this is conclusive of the controversy. The case of Jehaugirji, as stated in his plaint, was that, "If the plaintiff failed to deliver the goods, both parties should calculate the price of the goods not so delivered at the rate of ready goods of the Sutta description prevailing in the Khamgaon market on 13 March 1892."

(3.) From the position thus assumed by Jehangirji, of ignoring the Panchayat, he was dislodged at the trial of his own evidence. Ho first said, "If I did not make delivery, the rule in the printed contract Exhibit D/XIV applied. On looking at Exh. D/XI I find no such rule as referred to by me above." He then said "The rule which was to apply was that the rates were to be settled by rates ruling on the day of delivery." But he went on, "These rates were to be settled by certain shroffs appointed by the Sutta shroffs at Khamgaon ; and the profits and losses were to be determined by these rates if the rates settled were fair and true. This the shroffs do in accordance to the practice of the Sutta trade at Khamgaon. ... I knew of this system of appointing a Panchayet and settlement of rate by them and settlement of profits and losses to be determined accordingly, if the rates are fair and true, since it is a practice that prevails all over Berar and in other places." This admission is qualified, as will be observed, by the words "if the rates were fair and true": and the case of the appellants ultimately consisted of an impeachment of the rate fixed by the Panchayet as not having been "fair and true."