Banerjee, J. - (1.) This is an appeal from a judgment of Baohawat J. requiring our decision upon the effect and validity of an Ordinance made by the Governor of this Province.
(2.) The plaintiff is a merchant who has been carrying on business in Calcutta in jute goods for the last 30 or 35 years and during this time he entered into numerous transactions to the approximate value of rupees eighty to ninety crores. In the year 1949, the volume of his business exceeded Rs. 2 crores. Yet he never possessed a godown nor any place to store jute goods. He gives 'actual' delivery by means of delivery orders or mate's receipts. In his evidence he said : "The goods remain with the mills. We deal either in delivery orders or mate's receipts. Delivery order is in other words the goods. Whether you say delivery order or delivery of the goods, it is one and the same thing." That is how he carries on business.
(3.) As to the defendant, the learned trial Judge has thus summarised its position :- "A large part of the defendant's contracts is settled by paying the difference in price. In my judgment neither the making nor the settlement of a contract for purchase and sale of jute goods is a dealing in sale and purchase of goods involving actual delivery thereof. With regard to some of the contracts which are not settled, the defendant gives and takes delivery orders and receives and pays the price of jute goods against such delivery orders ........ . Some of the defendant's contracts are however strictly performed by actual delivery of the goods alongside the steamer.";