RANGASA Vs. HUKUMCHAND

JUDGEMENT

(1.) JACKSON , A.J.C. 1. The defendants Rangasa and Kisan Patel had purchased 1,100 khandis of cotton seed through Salemuhammad Nurmuhammad as brokers for delivery on Pous Sudi 15 Sambat 1982 (1925-26 A.D.). Salemuhammad Nurmuhammad had in turn purchased this quantity of cotton seed from the plaintiff for delivery on the same date. In November 1925 it was agreed between the plaintiff and the defendants that the contract should be treated as one directly between them and on 10th November 1925 the defendants wrote the letter (Ex. P. 6) to the plaintiff and another letter (Ex. P. 7) to Salemuhammad Nurmuhammad. On the date fixed for delivery, which corresponds to 29th December 1925, the defendants did not desire to take delivery as the price of cotton seed had gone down considerably and they agreed to pay to the plaintiff the difference in the prices. They executed an acknowledgment in favour of the plaintiff agreeing to pay Rs. 6,240 onl2nd January 1926 and the plaintiff has now sued to recover that sum with interest thereon at 12 per cent, per mensem.

(2.) THE defendants had pleaded in the lower Court that they had been induced to execute the acknowledgment through fear and under threats from the plaintiff. They also alleged that the contract was a wagering one, that nothing can be recovered on it by a suit and even that it was agreed between the parties that nothing would be recoverable. The main contention in appeal is that the contract was a wagering one. An attempt has been made to show that the plaintiff did not really step into the shoes of Salemuhammad and take his place as a party fro the contract. The defendants' own letters go to show that Salemuhammad was eliminated and the plaintiff and the defendants stood face to face in connexion with the contract originally entered into through Salemuhammad as broker. The pleadings of the defendants equally show that there was a contract between them and the plaintiff; and it seems to me that the only question I have to consider is whether the acknowledgment was executed by the defendants in favour of of plaintiff in respect of a wagering contract.

(3.) THERE is evidence to show how the defendants settled other contracts entered into in circumstances similar to those of the one that I am considering. Gokuldas (P.W. 3), Purnaji (P.W. 4), Chotalal, (P.W. 5), who is employed by H. Rawjai and Co., and Bansiralal (P.W. 8), who is employed by Rambax Laxmandas, depose to contracts entered into, in the first place, with Salemuhammad Nurmuhammad, in which the broker was eliminated, as he was in the contract with the plaintiff, and which became direct contracts with the defendants. Some of these witnesses depose to delivery of the goods contracted for. Gokuldas (P.W. 3) says that delivery was made by storing the goods in the kotha of Rambax Laxmandas which had been taken on rent for the defendants; and delivery in a similar manner is deposed to by Purnaji (P.W. 4) and Bansiralal (P.W. 8). It appears, however, that in none of these cases did the defendants actually take delivery. According to Gokuldas, one of the defendants, Kisan, mortgaged a field to cover the difference in prices and according to Purnaji the other defendant Rangasa gave a mortgage for Rs. 3,000, which again must relate only to the difference. Bansiralal does not say how the matter was eventually settled. The evidence is therefore somewhat inconclusive as to how the defendants settled other contracts for delivery on Pous Sudi 15 in the year in question; but it certainly does not prove that delivery was never intended by either party.