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Bombay High Court
Joshi Narbadashankar Hurjivan vs Mathuradas Gokuldas on 31 January, 1910
Equivalent citations: (1910) 12 BOMLR 1058
Author: K Basil Scott
Bench: B Scott, Kt., Batchelor


JUDGMENT

Basil Scott, Kt., C.J.

1. Two points have been urged by the appellant in this appeal: (1) that according to the rules of the Bombay Rice Merchants Association subject to which the contracts sued on were made both parties were to pay or receive differences and, that therefore the contracts were void as wagers; (2) that having regard to all the circumstances of the case it should have been found as a fact that neither party intended that delivery should be taken.

2. In support of the first point reliance is placed upon Rule 17 of the Rice Association Rules. That rule obliges the buyer to accept a delivery order if tendered up to 4 p. M. on the sixth day before the Vaida and provides that on the seller’s failure to make such delivery, the contract shall be settled by payment of the difference between the contract rate and the due date rate fixed by the Association.

3. Whether if the seller failed to give the delivery order in time the conditions imposed by the rules would make the contract a wager is one which we are not called upon to decide for it is found as a fact in the lower Court and not now disputed that all the delivery orders were tendered by the plaintiffs in time. The facts are therefore entirely dissimilar to those in Champsey v. Gill & Co. (1905) 7 Bom. L.R. 805 upon which the argument of the appellant is based.

4. There is no authority for the proposition that because under the terms of a contract an obligation to pay or receive differences may rise on the happening of a particular event the contract is void as a wager if that event does not happen. Such a result would be inconsistent with the principle underlying Section 57 of the Indian Contract Act.

5. As regards the second point, it is a pure question of fact which has been adequately dealt with by the learned Judge. We see no reason to differ from the conclusion at which he has arrived. We therefore dismiss the appeal with costs.


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