BALVANT VISHNU Vs. MISHRILAL SHIVNARAYAN

JUDGEMENT

(1.) This appeal aries out of a suit brought by the plaintiff to recover damages for a breach of the contract entered into by the defendants father, now deceased, with the plaintiff to purchase twenty Khandies of cotton. The contract was entered into on December 9, 1916, and was in these terms:-- To Shivnarayan Hajarimal Marwadi, residence Bhusaval, be pleased to road the salutations of Balvant Vishnu Nargundkar, residence Bhusaval. The object of writing this letter is that a contract is made between you and me for cotton, approximately 20 Khandies of large Malkapur measure, that is of 392 seers, at Rs. 150 for every Khandy. This contract was made approximately five or six days ago. You can take delivery of the said cotton goods on January 1, 1917, or any time before, by coming here, that is, by coming to our field in village Charthane, I will take the price of the goods immediately after the weighment and delivery of the cotton and on the same day. I have taken to-day for earnest two pairs of silver todas, both together 225 rupees in weight. Their price will be computed according to the market rate of today. If under the above contract you do not take delivery I will recover from you loss in accordance with the price at the time in Malkapur Peth, If the price be above Rs. 150 then I will give you the profit.

(2.) The plea of the legal representatives of Shivnarayan was that this was really a wagering transaction. The trial Court accepted that defence, principally on the ground that the last clause in the contract that "if the price be above Rs. 150, then I will give you the profit" was to be read as affording a key to the whole contract, and that the other terms were to be treated as a sort of disguise to conceal the real meaning of the parties, namely, that it was a sort of stake on the question whether the rate of the cotton on a particular date would be over or below Rs. 150. It is one of the defects in the judgment of the trial Court, to my mind, that though the learned Judge was satisfied that at least the plaintiff intended to carry out the first part of the agreement by giving actual delivery, if the defendant had only chosen to claim it, still he came to the conclusion that it was a wagering transaction. No doubt the learned Judge says that the common intention of both parties was to deal in differences only. He also found that the net damages amounted to Rs. 162 making due allowance for the price of the ornaments which are referred to in the contract He held that on the due date of the delivery Rs. 130 was the rate per Khandy and calculated the damages on that footing; but he dismissed the suit with costs.

(3.) The plaintiff appealed to the District Court, and the learned Assistant Judge who heard the appeal found on the first issue that the contract was of ft wagering nature, and in that view he did not consider it necessary to deal with the question of damages any further.