Leonard Stone, Kt. , C. J. - (1.) THIS is an appeal from the judgment of Mr. Justice Kania dated January 25, 1945.
(2.) THE matter arises out of two contracts for the sale of yarn dated respectively April 22 and 24, 1943. In the trial Court a number of points were taken, but these have dropped out or have been given up, leaving two main issues which we have to consider. THE issue which comes first is with regard to the validity of the contract. On that issue the appellant in this Court succeeded in the Court below. THE other issue concerns the quantum of damages for the breach of contract, and on that issue the respondents succeeded and the appellant filed this appeal. THEreupon the respondents cross-appealed on the issue of validity. THE cross-appeal has been argued first in this Court, since, if it succeeds, the appeal with regard to the quantum of damages would not arise. Mr. Tendolkar for the respondents on the cross-appeal submits that the transactions by the appellant (the vendor) were illegal and void as being in contravention of Notification No.24)3 of the Government of Bombay dated July 31, 1942, which is as follows: With effect from 1st September 1942 (that date was subsequently extended to the 1st of November 1942) no person in the Province of Bombay shall sell, store for sale, or carry on business in cotton yarn except under and in accordance with the conditions of a license in the form in Schedule B granted by the Yarn Commissioner for the Province of Bombay. Then there is Rule 121 of the Defence of India Rules upon which Mr. Tendolkar also relies, and that is in these terms: Any person who attempts to contravene, or abets, or attempts to abet, or does any act preparatory to a contravention of any of the provisions of these rules or of any order made thereunder, shall be deemed to have contravened that provision, or as the case may be that order.
(3.) BEFORE proceeding further it is necessary to mention certain dates and facts, The two contracts for the sale by the appellant to the respondents were each for 5,000 Ibs. of cotton yarn and are dated April 22 and 24, 1943. The original dates for delivery were respectively in June and in May of that year. But it is common ground that these dates were extended by mutual agreement to December 22, 1943, and that that is the date in each case on which a breach of contract took place. The contracts are in the name of the appellant and are his personal contracts, although in fact he was a partner in a firm of wholesale and retail cotton merchants called the Ruby Thread Company, the only other partner in that firm being Shridhar Balkrishna Antarkar. On August 21, 1942, an application for a license under the Notification of July 31, 1942, was made by " Shridhar Balkrishna Antarkar, partner Ruby Thread Co. " and on November 1, 1942, a license was in fact granted by the Yarn Commissioner for the Province of Bombay, the licensee being Shridhar Balkrishna Antarkar without the qualification of his being a partner in the firm of Ruby Thread Co. Accordingly on November 23, 1942, a letter was written to the Commissioner which said: We hereby wish to point out that the licenses in question were required to be brought out in the name of this firm i. e. ' The Ruby Thread Co. ', and not in the individual name of the undersigned. " " We shall therefore thank you to make the necessary amendment in your registers and oblige. That letter was sent by Mr. Antarkar "for the Ruby Thread Co. " It does not appear that any acknowledgment, far less a reply, was ever received to that letter. The appellant in fact himself obtained a license on September 24, 1943, that is to say long after the date of the two contracts, but before the extended date for delivery. By his evidence the appellant says that he has been doing business in yarn for the last three years and he continues : In 1942 I was doing business in the name of Ruby Thread Co. in partnership with S, B. Antarkar. He was a working partner. Antarkar applied for a license in the name of Ruby Thread Co, He had signed the application in his name for the partnership. The authority issued a license in the name of Antarkar. Then later in his evidence: Ruby Thread Company was not a registered partnership. There was no written partnership agreement. Exs. B and C (those in fact are the two contracts) were my personal contracts with the defendants. " I sold yarn to the defendants only and that was because they came with a recommendation from the Controller. Otherwise my business is of Government contracts.;