- (1.) THIS is a plaintiff's second appeal from the judgment and decree of the Senior civil Judge, Ajmer, dated the 14th November, 1958, affirming the decree of the second Additional Sub-Judge, First Class, Ajmer dated the 31st January, 1956. By these decrees the plaintiff's suit for damages amounting to Rs. 1,875/- was dismissed and the defendant's counter claim of Rs. 1,000/-, was decreed.
(2.) THE material facts leading to this appeal may be briefly stated as follows: on 21st of May, 1954, the defendant M/s Jethanand Wadhumal and Co. Ajmer through on of his managers Shri Lachman Dass contracted to purchase 500 x 36 Ibs. tins of Prabhat Brand Hydrogenated Ground-nut and Til Oil (Vegetable Ghee) on some terms and conditions, the material conditions being as follows: (a) Quantity and quality: 500 x 36 lbs. Prabhat Brand hydrogenated Ground. nut Oil and Til Oil. (b) Period of delivery; from 1st July 1954 to 31st July 1954 on any day at the option of sellers. (c), (d) and (e) relate to rate, octroi and advance payment, and are not material. (f) Terms of the payment shall be made as payment : soon as the delivery is tendered at the purchaser's godown or his nominee's godown. (g) and (h) relate to sales-tax and other terms which are not material. . The defendant advanced Rs. 1,000/- to the plaintiff under a cheque in pursuance of the contract. The contract was not implemented. The plaintiff accordingly filed a suit for the recovery of Rs. 1,875/- as damages. His case was that he was always willing and prepared to perform his part of the contract but the defendant failed to take delivery in sp-;te of requests, registered notice and a telegram. According to him the contractual rate being Rs. 32/- per tin and the market rate on or about 3ist of July, 1954 at Ajmer being Ks, 26/4/- per tin, the plaintiff suffered damages to the extent of Rs. 2,8757 -. Giving credit for Rs. 1,000/- deposited by the defendant in advance, he filed a suit for Rs. 1,875/ -.
(3.) THE defendant contested the suit on various grounds. The main plea with which we are concerned in this appeal relates to the illegality of the contract. The defence was that the contract being a "forward contract" was in violation of the forward Contracts (Regulation) Act of 1952. The defendant also filed a counter claim for Rs. 1,000/-paid to the plaintiff in pursuance of the contract. It appears that at the time of arguments on certain preliminary legal issues relating to the illegality of the contract, the defendant did not rely upon the provisions of the forward Contracts (Regulation) Act of 1952 but took shelter under the provisions of the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order, 1944 (hereinafter referred to as the "order" ).;