MUHAMMAD ISHAK Vs. BALAJI

JUDGEMENT

(1.) 1. The judgment in this appeal will govern the two connected Revision Applications Nos. 463 and 464 of 1932. The plaintiff who is a cotton grower brought four suits against the common purchaser and four brokers who negotiated the sales between them. By consent the suits were tried together and decreed against the purchaser but dismissed in each case as far as the brokers were concerned. Appeals were made by the plaintiff against the decrees dismissing the suits against the brokers, and the plaintiff succeeded in these appeals which were consolidated. Three of the brokers have brought the matter further to this Court, the one by second appeal and two others by means of revision applications in view of the pecuniary limit enforced on them. The fourth broker appears to have taken no action.

(2.) THE plaintiff's case was that in each instance the purchaser, Uttamchand, bought cotton from him on the security of each defendant who also acted as a broker in the transaction. The brokers denied that they had acted in the transactions at all. The lower appellate Court found that the purchases were made through them, that by the custom of the Saoner market the brokers in that market were ipso facto sureties in respect of every transaction entered into by them, and that the claim did not arise out of a special contract of guarantee but was implied in the ordinary practice of cotton dealers and brokers at Saoner. It is against this decision that this second appeal and the connected revision applications have been made. It has been found that the cotton was deposited with the purchaser and that it was agreed that the price of the cotton was to be determined at the rate prevailing on such date as the purchaser might choose to claim it. The claim was made on 31st March 1929, over a month after the cotton had been deposited. The plaintiff's case was that the four brokers approached him on the same day clamouring for his custom and offering, as an inducement, the terms to which reference is made above and that he agreed to these terms, although he did not bring his cotton to the market on that day; that is to say he claims that a contract of guarantee was made on that decision.

(3.) THE argument advanced in the lower appellate Court and accepted by it that the defendants did not plead that they acted merely as broker since they denied the transaction altogether, and that it was their duty so to plead cannot be accepted. It was the duty of the plaintiff to plead on the assumption that it was his case that the brokers were ipso facto sureties, (which it was not), that the custom of the Saoner market Was such as to put this additional liability, which does not ordinarily exist, on the brokers. As I have said above, I ana bound by the finding that the four defendants did act as brokers between the vendor and the purchaser, but am in doubt whether the learned Judge has examined and appreciated the evidence with his usual care. To describe the plaintiff as a common type of unsophisticated villager and to accept his statement that he is an illiterate than who keeps no books of account when he is a considerable grower of cotton, lives in the tahsil head-quarters at Saoner, is a money lender and pays income-tax on that account to the extent of nearly Rs. 300 is a lapse of which the Judge should not have been guilty.