MATHURADAS GOKULDAS AND CO Vs. NARBADASHANKAR HARJIVAN

JUDGEMENT

(1.) This is a suit to recover on certain forward contracts for the purchase of rice, the due dates of which were the Pagan and Chaitar Vaidas of 1965 corresponding with February- March, and March-April 1909. The plaintiff's contention is that the defendant refused to take delivery as the market had gone against him; consequently the plaintiff sold the goods at his risk and on his account; and now claims the difference between the contract and the market rate. A preliminary difficulty was settled by plaintiff consenting to accept certain rates as the measure of damages. What was realised at the sales and whether or not the sales were bona fide and properly conducted becomes of no further consequences.

(2.) The defence is two fold: (1) General, that the contracts were wagering contracts. (2) That in respect of the contracts for the Fagun Vaida the plaintiff was in fault for not giving the defendant the delivery orders in time. Under the rules of the Rice Merchants Association the plaintiff was bound to do this before 4. p. m. on a certain day, whereas in fact he did not do so till about fifteen minutes later. The latter defence is inconsistent with the former. For it implies that the contracts were genuine. That defence could not be available to the defendant, if his principal defence is true that under other rules of the said Association the contracts were plainly wagering contracts, and were known and intended to be so, on both sides. However, I do not say that the defendant is not entitled to make an alternative case of this kind. I merely point out that doing so, weakens his position in his main defence. For amongst other criteria of what is and what is not a wagering contract the conduct of the parties is not the least important. I intimated to the defendant that 1 did not think there was anything in his second line of defence. This was after hearing the evidence upon it. Considering his general defence and all the circumstances of the case, I think, no Court would favour a contention of this kind which is purely technical. And being as it is in doubt, to put it most favourably to the defendant, the Court would not be too anxious to scrutinize the lapse of a minute or two, while it would be ready to doubt the accuracy of the defendant's clock (even assuming his evidence to be more trustworthy on this point than it is) and lean in favour of the evidence for the plaintiff which is at least as good and proves that the tender of delivery orders) was well within the prescribed time. If the defendant had been an honest dealer, if the contracts were genuine (it does not follow that they were not because the defendant was a dishonest dealer) I do not think that he, the defendant, would have raised a technical defence of this kind at all, hinging as it does on a variation in time of a few minutes only, the lapse of which could not really have injured him in any way. Some such considerations I intimated, as I have said, to defendant's learned Counsel who, in. deference to the Court's view, did not further press this point. I may add that on the evidence as it stands I should have had no hesitation in finding that the delivery orders were tendered in time, and, therefore, that, as a matter of fact, this defence failed.

(3.) The general defence splits into two parts. First, it is contended that as these contracts were made under the rules of the Rice Merchants Association, and as some of those rules at any rate have all the appearance of having been framed to permit and encourage wagering contracts, any contract admittedly made under them must be deemed to be affected with this taint, as possibly referable in certain circumstances to the rules which appear to recognize mere wagers. Second, it is contended that whether or not any and all contracts made under these rules are wagering contracts, these contracts certainly were and that to the knowledge and within the intention of both parties.