MODI & CO. versus UNION OF INDIA

MODI & CO.

UNION OF INDIA

December 1, 1967

(J. C. SHAH, V. R.AMASWAMI AND V. BHARGAVA, JJ.)

Forward Contract (Regu/aJion) Act 74 of 1952, ss. 2(/) and 15(1)-C on tract for sale of Twills providing for delivery on specified date-if ~ 'non-transferable specific delivery contact tvitltin s. 2(/l-Principles for determinin1:.

The appellant entered into contract in September 1960 With the res-c pondent through the Director-General. Supplies and Disposals, whereby ® agreed to sell 500 bales Twills on terms and conditions contained in an exchange of letters. 'file date of delivery , .. ·as fixed as November 30, 1960 and after the contract was entered into, the appellant depositecl with the Resen·e Bank of India an amount by way of security deposit in accor-dance with the terms of the contract. On November 30, the appellant informed the respondent t:hat the contract was void and illegal being in violation of the provisions of the:Forward Contract (Regulation) Act 74 of 1952 and that the security deposit should therefore be refunded. The respondent however took the position that the contract was legal ~nd bincling and as the appellant had .failed to deliver the goods as stipulated, it would purchase the goods elsewhere at the risk of the appellant. The respondent thereafter incurred an extra expenditure of about Rs. 76,000 and after giving credit to the app.ellant for the amount of security deposit claimed the balance amount of about R,. 56.000 from the appellant. Upon the latter's failure to pay, the respondent took recourse to the arbitration clause of th~ contract and appointed an arbitratr[1]r to determine the dis-pute.

Before the arbitrator could give his award. the appellant filed an appli-cation before the High Court under s. 33 of the Arbitration Act, praying for declaration that the arbitration clause was illegal and, void and fo1 an injunction restraining the respondent from prosecuting the arbitratiOn proceedings. The High Court dismissed the application holding that the contract \Vas "non-transferable specific delivery contract'' ri.nJ. was not hit by the provisions of the Act.

On appeal to this Court,

HELD : (dismissing the appeal) The questioo as to whether the coo.tract was transferable or non-transferable specific delivery contract is question \vhich ultimately depends on reasonable construction of the contract. On proper construction of the terms of the contract and hB.ving regard to the surrounding circumstances, there was an implied agreement between the parties that the rights and liabilities under the cont'ract were not to be transfeFrc<l and the bill of lading relating to the contract was also not to be transferred. It follows therefore that the contract in question was non-transferable specific delivery contract with-in the meaning of s. 2(f) of the Act and was not hit by the notifieation iSllUed on March 29, 1958 issued by the Central Government under s. 15 ( l) of the Act relating to jute/goods. [569 E; 571 C-E]

Khardoh Company Ltd. v. Raymon & Co. (India) Private Ltd. (1963) 3 S.C.R. 183. referred to.

Civ11. APPELLATE JURISDICTION: Civil Appeal No. 395 of 1965.

Appeal by special leave from the judgment and order dated September 18. 1963 of the Calcutta }iigh Court in Matter No. 97 of 1963.

A. K. Sen and D. N. Mukherjee, for the appellant.

B. R. L. l,vengar and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Calcutta High Court dated September 18, 1963 dismissing an application under s. 33 of the Arbitra' tion Act.

By its letter dated September 14, 1960, the appellant made an offer for sale to the respondent of 500 Bales (1,50,000 bags) 'B' Twills on the terms and conditions mentioned in the said letter. The offer was accepted by the Director-General. Supplie;; & Disposals on behalf of the respondent by his letter No. CAL/ DL·l/5750-L/ll/Modi/158 dated September 16, 1960. The appellant depositc<l with the Reserve Bank of India the sum of Rs. 20, 182.50 P. towarc.s security deposit on September 22. 1960 as required by the acceptance letter. The date of delivery fixed under the contract was November 30, 1960 and the ~­pondent sent the appellant despatch instructions dated Novem-ber 21. 1960, through the Director of Supplies & Disposals. On November 30, 1960 the appellant, however, intimated to the respondent that the contract was void and illegal and requested that the security deposit should be refunded. The case of the appellant was that the contract was in violation of the provisions of the Forward Contract (Reglllation) Act, 1952 (Act 74 of 1952). hereinafter called the 'Act'. Ry his letter dated Decem-ber 1. 1960 the Director of Supplies wrote on behalf of the res-pondent that the contract was legal and binding and as the appellant had failed to deliver the goods as provided in the agreement the respondent would purchase the goods at the risk of the appellant. The respondent ~ncurred extra expepd.iturc amounting to about Rs. 76,410 and after giving credit to the appellant for the amount of Security Deposit, sum of Rs. 56,000 still remained due to be paid by the appellant to the respondent. As the appellant failed to pay, the respondent took recourse to the arbitration cl. 21 of the contract and appointed an Arbitra· tor to determine the dispute between the parties regarding the agreement. Before the Arbitrator could give his award, the appellant filed an application before the High Court under s. 33 of the Arbitration Act praying for declaration that the arbitra-tion clause was illegal and void and for an injunction restraining

the responder.t from prosecuting the arbitration proceedings. By its judgment dated November 19, 1963, the High Court held that the contract was "non-transferable specific delivery contract" and was not hit by the provisions of the Act and accordingly dismissed the application of the appellant.

The question presented for determination in this appeal is whether the contract in question is transferable or non-transfer-able specific delivery contract within the meaning of the Act.

Section 2(i) of the Act defines "ready delivery contract" as meaning "a contract which provides for the delivery of goods and the payment of price therefor, either immediately or within such period not exceeding eleven days after the date of the contract ........ ". "forward contract" is defined under s. 2(c) as meaning "a contract for the delivery or goods at future date and which is not ready delivery contract". Section 2(m) defines "specific delivery contract" as meaning "a forward contract" which provides for the actual delivery of specific quali-ties or types of goods during specified future period at price fixed thereby or to be fixed in the manner thereby agreed and in which the names of both the buyer and the seller are mentioned". Section 2(f) defines "non-transferable specific delivery con-tra~!" as meaning.I "a .specific delivery contract, the rights or liabilities under which or under any delivery order, railway receipt, bill of lading, warehouse receipt or any other document of title relating thereto are not transferable". Finally, s. 2(n) defines "transferable specific delivery contract" as meaning "a specific delivery contract which is not non-transferable specific delivery contract".

Chapter IV of the Act contains provisions conferring autho-rity on Central Government to prohibit certain classes of forward contracts. Section 15 ( 1) of the Act states as follows : "15. ( 1) The Central Government may by notifi-cation in the Official Gazette, declare this section to apply to such goods or class of goods and in such areas as may be specified in the notification, and thereupon, subject to the provisions contained in section 18, every forward contract for the sale or purchase of any goods specified' in the notification which is entered into in the area specified therein otherwise than between members of recognised association or through or with any such member shall be illegal."

Section 17 provides : "17. (1) The Central Government. may, by noti-fication in the Official Gazette, declare that no person shall, save with the permission of the Central Govern-

mcnt, enter into any forward contract for the sale or purchase of any goods or class of good<; specified in the notification and to which the provisions of section 1: have not bee!' made applicable, except to the extent and in the inanner, if any, as may be specified in the notifica-tion.

(2) All forward contracts in contravention of the provision<; of sub-section (I) entered into after the date of publication of the notification thereunder shall be illegal.

( 3) Where notification has been issued under sub-section ( I), the provisions of section 16 shall, in the absence of anything to the contrary in the not ifica-tion, apply to all forward contracts for the sale or pur-chase of any goods spccitied in the notification entered into on or before the date of the notification and remain-ing to be performed after the said date as they apply to all forward contrdcts for the sale or purch"se of any goods spccifieJ in the notification under section 15."

Section 18 ( 1 ) stales that these provisions will not apply 10 non-transferable specific delivery contracts for the sale or pur-:!1asc of any goods.

According to the scheme of the Act therefore contracts of sale of goods arc divided into two categories. 'ready delivery con-tract.; and "forwarJ contracts". Forward Contracts are da;si-fied into those which are "spccifieJ delivery contracts" and those which are not. Then again. 'specific delivery contract:>' are divided into 'transferable specific delivery contracts' and 'non-transferable specific Jclivcry contracts'. Section 18( 1) cxcn1pts from the operation of the Act non-transferable specific delivery contracts. The net result of these statutory provisions is :hat all foiward contracts except those which are non-tr~nsfcrable specific delivery contracts, -can be declared illegal by notifica-tion issued under the Act.

Such notification was issued in this case by the Central Go\·ernmcnt on March 29, 1958 which is to the following effect :

"In exercise of the powers conferred by sub-sc.:-tion ( 1) of section 15 of the Forward Contracts (Regu-lation) Act, 1952 (74 of 1952) the Central Govern. ment hereby declares that the said Section shall apply to Jute/goo<ls (Hessian cloth made of jute or bags made 0£ such Hessian cloth and sacking cloth made of jute or bags made of such Sacking cloth) in the City of Calcutta.

Explanatior. :-"The expression 'City of Calcutta' means

(1) Calcutta as defined in clause ( 11) of Section 5 of the Calcutta Municipal Act, l95 l, (West Bengal Act No. 33 of 1951), together with part of the Hastings North or South edge of Clyde Row and Strand Road to the river bank and the areas which were previously under the new defunct Tollygunge Municipality;

(2) The Port of Calcutta; and

(3) The Districts of 24 Parganas, Nadia, Howrah and Hooghly".

It was argued on behalf of the appellant that the contract in question was fi:i.rward contract within the meaning of the Act and was prohibited by the Government notification and therefcre no right or liability accrued to the parties 011 the basis of the contract. The contention of the appellant was that the ~ontract was not non-transferable specific delivery contract as defined ins. 2(0 of the Act and.as such it was illegal and void and the arbitration clause contained therein was of no effect and could not be availed of by either of the parties. We are unable to accept the argument put forward· on behalf of the appellant as valid. The question as to whether the contract was transferable or non-transferable specific delivery contract is question which ultima1ely depends on reasonable construction1 of the contract. On behalf of the appellant it was pointed out that there was no s::iecific clause in the contract which prohibited the tr;insfer of the rights and liabilities or which prohibited transfer of the bill of lading. But the absence of such specific clause is no> con-clusive as to the intention of the parties. It is true that when contract is reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can con-stitute term of the contract between the parties. If upon reading of the document as whole, it can fairly be deduced from the words actually used therein that the parties had agreed on particular term. there is nothing in law which prevents them from setting up that tem1. The terms of the contract can be expressed or there can be necessary implication of term from what has been expressed in the contract. The question therefore-resolves in the ultimate analysis upon the construction of the-terms of the contract between the parties. In this connection it is. well-established that in construing such contract it is legi-timate to take into account .the surrounding circumstances for·Jsccrtaining the intention of the parties. As was pointed out by this Court in Khardah Company Lrd. v. Raymon & Co. (India) Privare Lrd., ( [1]), the absence of specific clause prohibiting lransfer is not conclusive one way or the other on the que;tion whether there was an agreement betWeen the parties that the con-tract was to be non-transferable. What has to be seen is whether it could be held on reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agreement between the parties was that it was not to be transferred. In the present case, it should be noticed that the contract cannot be sublet or assigned by the selier under condition IO read with para 3(b) of the "Conditions of Contract contained in Form D.G.S. & D. 68 governing contracts placed by the Central ' Purchase Organisation of the Government of India. 1959 edition". Para 3(b) states:

" ( b) Subletting of Contract.-The Contractor ~i1ali

not subject, transfer or assign the contract or any part thereof without the written permission of the Purchaser. In the event of the Contractor contravening this con-dition the Purchaser shall be entitled to place the con· tract elsewhere on the Contractor\ account and at hi> risk and the Contractor shall be liable for any loss or damage which the.Purchaser may sustain in consequence or arising out of S.Uch replacing of the contract."

So far as the buyer is concerned, the contract itself shows that the jute bags were intended for "packing foodgrains which were arriving in bulk'" at an lndian port. The last paragraph 0f the letter of acceptance dated September 16, 1960 states that "the guunies are very urgently. required at the destination fo: packing imported foodgrains whi~h arc arriving in bulk". and "it was therefore of utmost impol1ance that shipment of the total quan-tity ordered shall be made in the vessels nominated by chc pur-chaser." There is also specific provision in the contract that the "stores shall be inspected prior to shipment by the i\.T.l.G.S., East fndia, Hastings, Calcutta, or his representative." There is also further stipulation that after the goods are inspected arrangements should be made to ship the stores in acc0r<lan.:c with the instructions contained in the· contract and that goods which arc not accepted in inspection should not be shipped. The name of the consignee is given in the contract as Asst. Director (Storage), Ministry of Food & Agriculture, Transit Shed No. 4, Visakhapatnam Port, Visakhapatnam and payment is to be made according to the procedure specified in the contract an·J the cost w::3 dcbitable to the Pay & Accounts Officer, Ministry ol Food & Agriculture, Bombay or New Delhi as the case may be under

(I) l1963J 3 s.c.R. 183.

Head of Account "87-Capital Outlay on the Schemes of Govt. Trading-Schemes for purchases of Foodgrains A.I. (3) (I) expenditure in India Section IV Special Purclttses both for Civil & Defence requirements-other Purchases-Purchase of gunni~ for imported food grains". In view of all these circ.umstances we an: of opinion that it was not contemplated by the parties that the rights under the contract should be transferred either by the buyers or by the sellers. It was pointed out for Lhe appellant that normally the Bill of Lading partakes of the nature of nego-tiable instrument and by endorsing it the holder of the l:iill of Lading can transfer ihe property in the goods to which the Bill of Lading relates and by parting with it the holder parts uot only with the property· in the goods but also with :heir possession. The proposition contended for by Counsel for the appellant is no doubt correct, but the question in this case is not the ab&tract question as to what the purchaser could or might haye done but what was in fact contemplated by the parties who were entering into the contract. For the reasons already given, we hold that on proper construction of the terms of the contract and having regard to the surrounding circumstances there was an implied agreement between the parties that the rights and liabilities under the contract were not to be transferred and the Bill of Lading relating to the contract was also not to be transferred. Jt follows therefore that the contract in question was non-transferable specific delivery contract within the meaning of. s .. 2(t) of the Act and the contract was .11ot hit by the notification dated March 29, 1958 issued by the Central Government under s. 15(1) of the Act.

For the reasons expressed we hold that the decfaion of the C~lcutta High Court dated September 18, 1963 is correct and this appeal must be dismissed with costs. IF R.K.P.S. Appeal dismissed.