Bhargava, J. - (1.) This appeal by certificate has been filed by Koteswar Vittal Kamath who was defendant in Original Suit No. 12 of 1958 instituted in the Court of the Subordinate Judge, Cochin, by the respondent-plaintiff, K. Rangappa Baliga and Co., for recovery of damages for breach of contracts in respect of goods, purchased by the respondent on behalf of the appellant, of which the appellant refused to take delivery on the due dates. There is no dispute that the respondent was carrying on business as commission agents and was governed by the trade usage known as Pakka Aadat System, and the appellant under the same System was placing orders with the respondent for purchase of goods. In the course of these dealings the appellant placed three orders for purchase of 100 candies of cocoanut oil for one month's 'vaida' and, in accordance with those three orders, the respondent purchased 100 candies of coconut oil on three different dates, 14th February 1952 at the rate of Rs. 455 per candy, 16th February, 1952 at the rate of Rs. 447/8/per candy and 18th Feb. 1952 at the rate of Rs. 432/8/- per candy. The period fixed for delivery under these contracts was one month so that the due dates for performance of the contracts were 15th, 17th and 19th March, 1952 respectively. The appellant refused to take delivery of the goods on the due dates. It appears that the closing market rates on these due dates were Rs. 330, Rs. 335 and Rs. 352/8/respectively which were much lower than the prices at which these contracts had been entered into a month earlier. The respondent, therefore, institued the suit claming the difference in the two sets of prices by was of damages together with the usual commission and brokerage.
(2.) The suit was resisted on various grounds, but we are concerned with one of those grounds which has been canvassed before us in this appeal. This plea taken on behalf of the appellant was that all these three contracts were Forward Contracts and were void and unenforceable, because they were made in contravention of the prohibition contained in the Travancore-Cochin Vegetable Oils and Oilcakes (Forward Contract Prohibition) Order, 1950 (hereinafter referred to as "the Prohibition Order of 1950"). To meet this plea raised on behalf of the appellant, it was urged on behalf of the respondent that this Prohibition Order of 1950 was void in view of the fact that the law, under which that Order was passed, was repealed in March, 1950 and its continuance by the repealing law did not save its validity, because the provision of that law, under which it was deemed to continue in force, was itself void. We shall presently explain in detail the situation as to the laws relating to this subject which prevailed in Travancore-Cochin from time to time; but it may here be mentioned that this plea of the respondent was accepted by the trial Court as well as the High Court of Kerala. As a result of this view taken by those courts, the suit for damages was held to be maintainable, so that the trial Court decreed the suit for a sum of Rs. 18,750 with interest thereon at 6 per cent per annum and that decree was upheld by the High Court. It is against this decision of the High Court that the present appeal has been brought to this Court; and the only question argued before us has been confined to the validity of the contracts, the breach of which was the cause of action for the claim of damages by the respondent.
(3.) The contracts, which were the subject-matter of the dispute, were entered into between the parties at Mattancherry which was situated in the territory of Cochin State before India achieved Independence. On the 18th February, 1940, the Maharaja of Cochin, who was exercising sovereign powers in the State, made a Proclamation No. 8 of 1115 applying the provision of the Defence of India Act No. 35 of 1939 together with the rules and all amendments to the Act and the rules mutatis mutandis in Cochin State. Another provision in the Proclamation also brought into force all the rules and notification issued under the Defence of India Act. There was also a provision that even the rules or notifications issued in future would automatically apply in the State. Under the Defence of India Act and the rules framed thereunder. Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order, 1944 was passed for the territory of British India and, consequently, as a result of Proclamation 8 of 1115, it came into force in the State of Cochin. Subsequently, however, the Maharaja, under that Proclamation 8 of 1115, passed the Vegetable Oils and Oilcake (Forward Contracts Prohibition) Order, 1119 (hereinafter referred to as "the Prohibition Order of 1119") on the 14th April, 1944. This Order, thus, superseded the earlier Order which had been passed for British India and which had become applicable in Cochin State as a result of Proclamation 8 of 1115. The Prohibition under of 1119, in clause 3, laid down that "no person shall, after the specified date for any article to which this Order applies, enter into any forward contract in that article." The Order applied inter alia, to coconut oil, which was the subject-matter of the three contracts, the breach of which was the cause of action in the suit. "Thereafter, on the 27th September, 1946, the Maharaja promulgated the Cochin Essential Articles Control and Requisitioning Powers Proclamation 3 of 1122 and, under Clause 9 of this Proclamation the orders already made by the Cochin Government under the Defence of India Act and Rules, as applied by proclamation 8 of 115 were continued in force, so that the Prohibition Order of 1119 continued to reman in force. On the same date, the Maharaja also promulgated the Temporary Emergency (Powers) Proclamation 5 of 1122 and, under clause 2 of this Proclamation, the Defence of India Act and the Rules were continued in force in the State of Cochin together with all orders and notifications issued under the provisions of that Act and the Rules, his was followed by the Cochin Essential Articles Control and Requisitioning Powers Act 8 of 1122 promulgated on the 4th January, 1947. Under section 9 of this Act again all the rules and orders made under the Defence of India Act or under the Rules were continued in force in the State of Cochin. This was the position of the law in the state of Cochin before India achieved Independence.;