JAMNADAS ADUKIA Vs. CHETANDAS DAGA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Taraporewala dismissing the plaintiffs suit for Rs. 15,810 and interest in respect of certain outstanding forward transactions in wheat and linseed, and allowing the counter-claim of defendants Nos. 2 and 3 for Rs. 1883 and interest. These outstanding transactions consisted of 1150 tons of wheat and 175 tons of linseed for September 1924 delivery, and 50 tons of linseed for May 1925 delivery. All these transaction were closed by the plaintiffs on July 30, 1924, and tiny justify the closing before the due date on the ground that the defendants had failed to comply with an alleged custom by which the plaintiffs were entitled to Call for a "shroff's kabala," and in default to close the transactions at the then market rate. It is common ground that the case solely depends on the existence of this alleged custom. Chetandas The market was in favour of the plaintiffs on July 30, 1924, but against them at the due dates. Hence the difference between the claim and the counter-claim. The learned Judge after a lengthy trial found that the alleged custom was not proved, The plaintiffs appeal. [After dealing with a technical point the judgment proceeded:]

(2.) As regards the alleged custom, it is important to observe that it does noc extend to all shroffs and all kabalas. "Shroff" is a generic term for an Indian banker or financier, and is not confined to any particular community. So, too, "kabala" merely means a contract, But the alleged custom is confined to particular contracts of a particular class of shroffs, viz.v Marwari shroffs. And although the precise nature of those contracts and of that class of shroffs is in dispute, we are mainly concerned here with the business usages of the Marwari grain bazaar or market in Bombay. In the present case both the plaintiffs and defendants were members of the Grain and Seed Brokers Association and also of the Marwari Chamber of Commerce, which are mainly Marwari institutions.

(3.) It is also important to note that although the plaintiffs and defendants are said to have entered into the suit transactions as brokers, yet in fact neither of them was acting for any principal. Consequently inter se they were liable as principal and principal, and more resembled jobbers than brokers. Further, we have not got to determine a case between broker and shroff or between broker and merchant. It is conceded that the practice in the latter two cases may be different from that as between broker and broker, whether acting as jobbers or as agents.