TAR MAHOMED JANOO Vs. KMSLAKSHMANA AIYAR AND SONS

JUDGEMENT

(1.) This is an appeal from a judgment of Kunhi Raman, J., in a suit, tried on the Original Side of the Court. The appellants, who are the plaintiffs, are a firm of merchants dealing wholesale in cotton yarn at Cocanada and other places. The defendants are a firm also dealing in cotton yarn and have a branch at Cocanada. The defendants are the selling agents of the Madura Mills, Limited, for a certain area in the Madras Presidency, but in the contract with which the appeal is concerned, they contracted as principals. On the 15 April, 1943, the plaintiffs and defendants entered into a contract at Cocanada under which the defendants were to sell to the plaintiffs inter alia twenty-five half bales of yarn, 60s second quality, at Rs. 27-8-0 per 5 lbs. The delivery was to be given in the month of August, 1943, but the contract provided for an extension of the period by three months, should the delay be the result of a cause over which the sellers had no control. There was delay in the fulfilment of this part of the contract, but it is common ground that the delay was excusable.

(2.) On the 4 September, 1943 the defendants wrote to the plaintiffs stating that these twent five half bales of cotton yarn were ready for delivery to them at Coca-nada. Delivery was not taken until the 29 September. On the 23 of that month a notification was issued under the Cotton Cloth and Yarn Control Order, 1943 (which will hereafter be referred to as " the order ") by which a maximum price was fixed for cotton yarn of this count. This was less than the contract price. When the plaintiffs took delivery, they did so under protest, as they considered that they were entitled to a reduction in the price fixed by the contract as the result of the amendment in the Order. The defendants refused to give delivery until the contract price was paid and consequently the plaintiffs were forced to comply with their demand. They filed the present suit to recover with enterest a sum of Rs. 5,125 which they maintain they had been unlawfully compelled to pay. The learned Judge dismissed the suit as he considered that the Order did not apply to this contract. The plaintiffs have appealed.

(3.) In order to understand the position it is necessary to refer to various amendments made in the Orderand to the Cotton Cloth and Yarn (Contracts) Ordinance 1944, which will hereafter be referred to as "the Ordinance." The Order was promulgated on the 17 June, 1943. It did not then fix maximum prices but gave the Textile Commissioner power to do so. On the 31st August, 1943, the Textile Commissioner fixed the maximum prices, both ex-factory and retail at which yarn might be sold. The notification did not, however, fix the price of 60s. Clause 2 of the notification said : The ex-mill maximum prices apply in respect of all deliveries on and after the 19th Ausust 1943, of goods originally contracted for delivery in August, 1943 and onwards. On the 23 September, 1943, this notification was amended. The following clause was inserted as Clause 2: The maximum prices, ex-mill and retail, for cloth and yarn of kinds or qualities other than those specified above shall be more or less, as the case may be, than the prices fixed above by an amount equal to the customary difference between the prices of the nearest kinds or qualities specified and the kinds and qualities not so specified. Clauses 2 and 3 of the earlier notification remained, renumbered as 3 and 4 respectively. Here 60s were not referred to specifically but the insertion of the new clause had the effect of fixing the ceiling price of 60s at Rs. 22-6-0 per 5 lbs