Appeal No 398 of 1956
Appeal from the judgment and order dated March 19 1956 of the Bombay High Court in Appeal No 45 of 1955 arising out of the judgment and order dated March 23 1956 of the said High Court in its Ordinary Original Civil
Jurisdiction in Suit No 468 of 1951
M C Setalvad Attorney General for India N P Nathwani J B Dadachanji section N Andley and Rameshwar Nath for the appellants
Purshottam Tricumdas K K Desai and I N Shroff for the respondents
March 31
The Judgment of the Court was delivered by 348 BHAGWATI J
This appeal with a certificate of fitness is directed against the judgment and decree passed by the High Courtof Judicature at Bombay in appeal from its ordinary Original Civil Jurisdiction confirming though on different grounds the judgment and decree passed by a single Judge of that High Court in Suit No 468 of 1951 instituted by the appellants Original Plaintiffs to recover from the respon dents Original Defendants a sum of Rs 180099 8 0 with interest and costs
Since the year 1932 the first appellant has been a member of the East India Cotton Association Ltd hereinafter referred to as  the Association   as the sole proprietor of the firm of Messrs Narrondass Manordass There in after referred to as the member firm
The first appellant along with other partners carried on business in partnership in Bombay inter alia as Cotton Merchants and Commission Agents in the name and style of Messrs Narrondass Manordass the 2nd appellant hereinafter referred to as  the partnership firm 
The respondents are a partnership firm and also a member of the Association
Between September 23 1947 and December 10 1947 the member firm sold to the respondents 2300 bales of Broach Vijay Fine 34 Navsari andor Bardoli 78 Cotton for MarchApril 1948 Delivery
Out of these 2300 bales 1100 bales were disposed of by means of  Havalas  and in respect of the remaining 1200 bales there were cross contracts
In the result when the time for  Delivery  arrived sales in respect of 700 bales remained outstanding and the member firm was liable to give delivery of 700 bales to the respondents
As however the member firm failed to give delivery of the said 700 bales to the respondents under the relevant by laws of the Association the respondents  Invoiced Back  these 700 bales to the member firm on May 3 1948 and as a result of this  Invoicing Back  a sum of Rs 107530 8 0 became due and payable by the member firm to the respondents and with regard to the transactions of all the 2300 bales taken together an aggregate sum of Rs 179749 8 0 became due and payable by the 349 member firm to the respondents
In respect of this sum of Rs 179749 8 0 the respondents sent to the member firm eight separate  Debit Notes  in respect of varying amounts and finally a consolidated debit note for Rs 179749 8 0
It appears that the contract notes in respect of these transactions had been signed by one Ramanlal Nagindas who had been employed as a salesman in the Ready Cotton Department of the partnership firm
The appellants contended that the said Ramanlal Nagindas had no authority to enter into the said transactions or to sign contract notes in respect thereof on behalf of the appellants and also that the said contracts were not in accordance with the by laws of the Association and they therefore denied their liability in respect of the said transactions
The partnership firm however as the beneficiary under the said contracts decided to pay the amounts claimed by the respon dents without prejudice to the rights and contentions of both the parties
On May 7 1948 the said sum of Rs 179748 8 0 was paid by the partnership firm and was received by the respondents in terms of the letter addressed by the respondents on the said date The payment is made by you and accepted by us without prejudice to the rights and contentions of both the parties in respect thereof
 A further sum of Rs 350 being the amount of penalty for the alleged failure to tender the aforesaid 700 bales of the said contracts of BroachVijay MarchApril 1948 Delivery was also paid by the partnership firm to the respondents on June 6 1948 without prejudice to their aforesaid contentions
The said Ramanlal Nagindas had entered into similar transactions with several other merchants and some of them claimed arbitration under by law 38 A of the Association
Petitions were thereupon filed by the member firm in the High Court at Bombay being Petitions Nos
A51 A52 A55 and A56 of 1949 under section 33 of the Indian Arbitration Act inter alia for a declaration that there existed no valid and enforceable arbitration agreement between the parties
Mr Justice Shah delivered judgment in the said petitions 350 on August 20 1950 holding inter alia that the said contracts were void as being not in accordance with the by laws of the Association and allowed those petitions
The respondents to the petitions thereupon filed petitions under article 136 of the Constitution for special leave to appeal to this Court against the said judgment of Mr Justice Shah
These petitions were however dismissed by this Court on or about April 6 1951
The appellants thereafter by their attorney s letter dated May 2 1951 called upon the respondents to return the said sum of I Is
180099 8 0 being the aggregate of the said two sums of Rs 179749 8 0 and Rs 350 with interest thereon at the rate of 6 per cent
per annum
The respondents failed and neglected to pay to the appellants the said sum or any part thereof with the result that on May 7 1951 the appellants filed the suit against the respondents for repayment to them of the said sum with interest and costs
In the plaint as filed the appellants averred that the said contracts were void under the Bombay Cotton Contracts Act 1932 as being not in accordance with the by laws of the Association inter alia in the following respects 1 The contract notes produced by the respondents omitted to state the difference of Rs  above or below the settlement rate of hedge contracts for the purpose of periodical settlements as required by by laws 139 and 141 and 2 no provision was made in any of the aforesaid contract notes with regard to the measurement of bales as required by the official form for delivery contracts prescribed in bylaw 80
The respondents in their written statement contended that there was no by law which required any person to agree upon any difference above or below the settlement rate of hedge contracts for the purpose of periodical settlements and to state the same
They further contended that the relative provisions contained in the official contract form had become obsolete as at all material times there were no hedge contracts bearing different numbers and in practice the said contracts were not put through periodical settlements
351 They also contended that at all material times there was no by law which required any person to agree upon any specific measurements in respect of the bales agreed to be purchased inasmuch as the operation of by law 101 in regard thereto had been suspended by the Board since November 30 1942
After the suit reached hearing the appellants amended the plaint by averring that by reason of the said payments having been made by them and accepted by the respondents without prejudice to the rights and contentions of both the parties there was an implied agreement between them that in the event of the appellant s establishing that they were not bound to pay the said sums to the respondents and that the respondents were not entitled to the payment thereof the respondents would repay or return the same to the appellants
This plea was traversed by the respondents in the supplemental written statement which they filed
The learned trial Judge followed the judgment of Mr Justice Shah and held that the omission of the clause regarding measurement in the contract notes did not alter the character or legal effect of the contracts
He similarly held that the omission of any reference in the contracts to the amount of difference above or below the settlement rate of hedge contracts in the last term of the contract notes rendered the contracts void
He however was of the opinion that there was no implied agreement between the parties of the nature alleged by the appellants and that the payment made by appellants to the respondents was voluntary and therefore dismissed the appellants  suit with costs
The appellants preferred ail appeal against this decision and the appellate Court dismissed the appeal and confirmed the decree passed by the learned trial Judge though on different grounds
The appellate Court agreed with the learned trial Judge that the omission of the term regarding measurement in the contract notes did not affect the character or legal affect of the contracts
In regard to the omission to fill up the difference above or below the settlement rate 352 fixed for the hedge contracts in the last clause of the contract notes however the appellate Court was of the opinion that there was no obligation on the parties to agree to add or deduct the difference above or below the settlement rate as contended by the appellants
If the parties did agree then the contract form provided that the agreement should be set out therein
If however they did not agree then the first part of cl
2 of by law 141 would come into play and the settlement of the delivery contract would go through on the basis of the settlement rate of the hedge contract
The omission to fill up the difference was thus of no consequence and did not invalidate the contracts
The appellate Court also differed from the trial Judge on the question of the implied agreement and held that if the appellants succeeded in establishing that the respondents were not entitled to receive the payments the respondents were bound to repay the sums paid by the appellants to them
In view however of the conclusion reached that the contracts were not void the appellate Court dismissed the appeal
The provisions of the Bombay Cotton Contracts Act 1932 Bom
IV of 1932 and the by laws of the Association which fall to be considered by us may now be referred to Section 81 Bombay Cotton Contracts Act 1932  Save as hereinafter provided in this Act any contract whether either party thereto is a member of a recognized cotton association or not which is entered into after the date on which this Act comes into operation and which is not in accordance with the by laws of any recognized cotton association shall be void
 By law 80 of the Association  Forward contracts between members how made Delivery Contracts between members shall be made on the official form given in the Appendix
Hedge contracts between members may be verbal or in writing and when in writing shall be in one or other of the forms given in the Appendix
Whether verbal or written all contracts shall be subject to the by laws 353 provided that in the case of Delivery Contracts By laws 149 to 163 inclusive shall not apply
The specimen of the official contracts form in triplicate as used in 1947 48 Vide Exhibit  D  contained the following terms amongst others No Contract Note From Brokers To Messrs    
We have this day bought by your order and for your account subject to the By laws of the East India Cotton Association Ltd From Messrs   bales of Cotton at Rs per candy delivered in Bombay in full pressed bales
Measurement tonsper 100 bales
For delivery contracts only
for the purpose of periodical settlement of this contract we agree to a difference of Rs abovebelow the settlement rate of hedge contract No Remarks Bombay 194 No Contract Note From Brokers To Messrs    
We have this day sold by your order and for your account subject to the By laws of the East India Cotton Association Ltd To Messrs   bales of Cotton at Rs per candy delivered in Bombay in full pressed bales
Measurement tonsper 100 bales
For delivery contracts only
For the purpose of periodical settlement of this contract we agree to a differ ence of Rs  abovebelow the settlement rate of hedge con tract No Remarks  Bombay  194 The contract notes which are rendered between the member firm and the respondents however contained no term as to measurement and so far as the last clause was concerned the blanks in regard to the difference of Rs above or below the settlement rate of hedge contract No were not filled in
The relevant by laws in connection with these two terms contained in the official contract form were by law 101 and by laws 139 and 141 By law 101
Claims for excess measurement
In respect of all Forward Contracts measurement 45 354 shall approximate 13 12 tons per 50 bales provided that in respect of Forward Contracts other than Hedge Contracts the parties may agree upon any other measurement
In all Forward Contracts for any port the rate or rates of freight for any excess measurement over 13 12 tons per 50 bales shall be fixed by the Board from time to time and unless otherwise fixed the rate for such excess for all ports shall be Rs 15 per ton in respect of each lot of 50 bales measuring more than 13 12 tons but not more than 14 12 tons and in respect of each lot of 50 bales measuring more than 14 12 tons Rs 35 per ton for any excess over 13 12 tons
No allowance for excess measurement shall be payable by the seller a unless the buyer has given to the seller reasonable notice fixing an appointment for measurement or b unless the buyer submits a claim to the seller within 6 weeks after the complete lot has been weighed over
The Board shall have power from time to time and at any time to suspend the operation of this Bylaw as regards measurements
By law 139 Settlement Days
All Delivery Contracts other than those excepted under By laws 136 and Hedge Contracts shall be subject to periodical settlements through the Clearing House and in every case the parties to the contract must be members of the Association
Settlements of differences due on open contracts and of other liabilities to be settled through the Clearing House shall be made once weekly on days which shall be fixed by the Board and notified in a calendar to be published annually
The day on which Balance Sheets are required to be submitted to the Clearing House shall be known as Settlement Day
 By law 141
Settlement rates 1 For the purpose of these settlements settlement prices for all positions of the Hedge Contract shall be fixed by the Board on or about the third working day immediately preceding Settlement 355 Day
The prices so fixed shall be I P M prices on the day of fixation
2In the case of Delivery Contracts the settlement price of the Hedge Contract shall be the basis for the periodical settlement
Such allowances as shall be agreed upon by the parties in their contract to cover any difference between the cotton contracted for and the cotton which is the basis of the Hedge Contract shall be added to or deducted from the said settlement price
In the case of contracts for descriptions which are not tenderable against the Hedge Contract the parties may either agree in their contract upon an allowance above or below the Hedge Contract for the purpose of their periodical settlement or may apply to the Board to fix settlement rates
          
The only question for our determination in this appeal is whether the contracts between the parties were not in accordance with the by laws of the Association and therefore void
There is no doubt that all the contracts were subject to the by laws of the Association
The question still remains whether they were in accordance with the by laws because if they were not in accordance with those by laws they would be void
The expression  not in accordance with  has been the subject of judicial interpretation in Radhakisson Gopikisson vs Balmukund Ramchandra 1
Their Lordships of the Privy Council there held that the form prescribed was not a stereotyped one and that literal compliance with it was not essential
The only thing required was that the contract notes must contain all the terms and conditions set out in the form in order to comply with it
Their Lordships were of the opinion that substantial compliance with the form would be enough and if such sufficient compliance with the by laws was found in a particular case that would save the contracts from being declared void as not being in accordance with the by laws
It was however urged on behalf of the appellants that by law 80 prescribes the form in which the contracts were to be entered into and all the terms and 1 1932 LR 60 IA 63
356 conditions incorporated in the official contract form had to be strictly complied with that the omission of the term as to measurement as also the omission to fill in the blanks in regard to difference of Rs above or below the settlement rate of hedge contract No    were such departures from the form prescribed as would render the contracts void because it could not be then said that there was sufficient compliance with the statutory form
Reliance was placed in support of this contention on Burchell vs Thompson 1 Ex parte Stanford In re Barber 2 Thomas vs Kelly 3 and Parsons vs Brand  Cols vs Dickson 4
The principle emerging from these decisions was enunciated to be that if the document executed by and between the parties departed from a characteristic part of the form prescribed or made a difference in the legal effect of the instrument it would not be in accordance with the form and would therefore be void
It would all depend upon the materiality of the particular term which is incorporated in the form
If the non compliance with the requirements of the form were such as to make the document something else by reason of a characteristic part of the form not being followed or the document would lose some legal effect which it would have had if the proper words had been inserted therein it cannot be said that there is sub stantial compliance with the statutory form
Considering the term as to measurement in this light it appears that the same had its basis in the requirements of the trade in regard to the pressing of the bales
The bales which were the subject matter of these forward delivery contracts were either meant for transport within the country or export outside the country
The bales were to be fully pressed so as to occupy the minimum space either in transport by rail or by steamer and initially they were bound with hoops
The baling hoops were however difficult to obtain from Japan and therefore the bales came to be bound with ropes made of cotton jute coir and hemp
The bales thus bound otherwise than with hoops 1 3 4  357 occupied more space and difficulties were encountered by the merchants because of their being obliged to pay extra insurance and freight charges in respect of such bales
Not only did the railways charge more for the transport of such bales the shipping companies also did so and the insurance companies charged higher rates for insurance because the bales were not pressed in a manner which would minimise the risks of insurance
All these factors brought about a situation creating difficulties between the purchasers and the sellers of cotton and these difficulties had to be resolved by the Association
by law 101 had proceeded on the basis of cotton bales being bound with hoops the approximate measurement in tons as agreed and understood in the trade being 13 12 tons per 50 bales
That was the standard measurement
It was open however to the parties to agree upon any other measurement
If any measurement other than the standard measurement was agreed to an adjustment had to be made by reason of such difference in measurement and by law 101 provided that certain amount therein specified had got to be paid by the seller to the purchaser as and by way of allowance for such excess measurement
Towards October 1942 the situation in regard to the baling hoops deteriorated so much that it was thought desirable that bales bound with ropes should be permitted to be tendered under the by laws of the Association and that the operation of by law 101 as regards measurements should be suspended
There were heavy fluctuations in the prices of the materials permitted to be used and it was therefore thought advisable to fix certain allowances from time to time or before the beginning of the delivery periods taking into consideration the extra insurance and freight charges if any in respect of such bales
A sub committee appointed by the Association made a report in this behalf on October 29 1942 and on November 20 1942 the Board of Directors of the Association passed a resolution approving the recommendations of the subcommittee with this modification that the allowance to be prescribed in the price of bales bound with ropes 358 as against the price of bales bound with hoops as provided in by laws 96 and 119 be fixed before the commencement of the season and not be altered from time to time
The Board of Directors issued a notice on November 30 1942 suspending the operation of bylaw 101 as regards the measurement until further notice
The position as it obtained at the time when the suit contracts were entered into was that by law 101 as regards measurement had been suspended and there was no necessity so far as the by laws went to make any mention in the contracts in regard to the same
If the claim for excess measurement had not to be entertained it was not at all necessary to mention the measurement in the contract forms and there would be substantial compliance with the contract form even though no measurement was mentioned therein the very basis for the mention of such measurement having disappeared
It was however urged on behalf of the appellants that measurement was an essential part of the description of the goods sold and the suspension of by law 101 made it all the more necessary that the measurement should be specified in the contract form itself
The standard measurement which had been mentioned in by law 101 had disappeared and it would therefore be necessary to mention in the contract form what was the measurement on the basis of which the price of the contract had been fixed by and between the parties
If the bales actually tendered measured more in weight than what was actually agreed upon the purchaser would be entitled to obtain from the seller an allowance for such excess measurement and that was the reason why it was necessary after the suspension of by law 101 to mention the agreed measurement between the parties
This argument however ignores the fact that simultaneously with the suspension of the operation of the by law 101 by laws 96 and 119 which referred to forward and hedge contracts respectively were altered and provision was made therein to incorporate measures consequent upon the tender of bales bound with ropes 359 in place of bales bound with hoops
The consequences of such tenders were worked out in the by laws as thus amended and allowances in the price of bales bound with ropes as against the price of bales bound with hoops were also provided for
These allowances were in accordance with the resolution of the Board dated November 20 1942 to be fixed before the commencement of the season and if such allowances were provided for there was nothing further to be done in regard to the difference in measurement if any
If the situation which obtained after November 20 1942 provided for a tender of bales bound with ropes instead of bales bound with hoops in fulfilment of the contracts entered into between the parties that was well known to all the members of the Association and it was open to them while fixing the prices themselves to take count of the extra charges for insurance and freight which would be payable by the purchaser in the event of bales bound with ropes being tendered instead of bales bound with hoops
It therefore follows that the omission to mention the measurements in the contract notes did not render the contracts not in accordance with the by laws
There was no such by law in operation at the time and even otherwise there was no need whatever to incorporate in the contract notes any term as to measurement
It could not therefore be said that there was any departure from an essential or a characteristic part of the contract form or that the legal effect of the contracts was changed so as to invalidate the same
When we come to the term in regard to the differences of Rs   above or below the settlement rate of hedge contract No   we find that that had reference to periodical settlements of contracts through the clearing house
In accordance with bylaw 139 all delivery contracts other than those excepted under by law 136 and hedge contracts were subject to periodical settlements through the Clearing House which settlements had to be made once weekly on days fixed by the Board
If the contracts had got to go through the clearing house in this manner it was necessary also that settlement rates should be fixed 360 and by law 1411 provided that settlement prices for all positions of the hedge contract should be fixed by the Board
The settlement prices thus fixed were to be taken as the basis for the periodical settlement of delivery contracts and it was further provided in bylaw 1412 that such allowance as shall be agreed upon by the parties in their contracts to cover any difference between the cotton contracted for and the cotton which was the basis of the hedge contract shall be added to or deducted from the said settlement prices
This was the basis of the provision contained in the relevant term of the contract form
In the case of contracts for descriptions not renderable against the hedge contract it was open to the parties either to agree upon an allowance above or below the hedge contract or they would make an application to the Board to fix the settlement rates
Whenever there was an agreement in this behalf the parties were to mention the difference thus agreed into the contract form and the periodical settlements of delivery contracts were to be effected on that basis
The question arises as to whether the parties were bound to enter into any such agreement at the time they entered into the contracts
It was contended on behalf of the appellants that such an agreement was necessary because it would otherwise involve the parties into payment of large sums of money on the settlement day next after the day of the contract
The hedge contracts appertained to cotton of the lowest average and if the quality of cotton which was the subject matter of the contract between the parties was as was usual of a higher variety it would involve the payment of large amounts by way of differences on the next settlement day which certainly would not be within the contemplation of the contracting parties
If that was so the parties would agree to a difference between the rates of the cotton contracted for and the cotton which was the basis of the hedge contract and this difference above or below would serve to minimize the incidence of such payment on the next settlement day
It was therefore submitted that it was incumbent on the parties when entering into a contract to 361 fill in this term as to differences
If they agreed upon such differences the blank had to be filled in accordingly but even though they did not agree upon any such differences it was necessary for them to mention in the contract form that the difference above or below the rate of the hedge contract agreed upon by them was nil
It was contended on the other hand on behalf of the respondent that there was no obligation on the parties entering into the contract to fill in that term
If they agreed upon the difference all well and good but if they did not agree upon the difference the first part of by law 1412 stepped in and the consequences had to be worked out as if there was no agreement and the differences had to be paid on the settlement day next ensuing on the basis of the difference between the contract rates and rates of hedge contract even though it may involve a payment of a substantial amount all at once
According to this submission in the case of contracts for descriptions tenderable againt the hedge contract two positions arose viz 1 parties to the contract may not agree to any difference in which case it would not be necessary to fill in that term in the contract note or 2 they may agree to the difference in which event the difference would be mentioned in the contract note
In the case of contracts for descriptions which were not renderable against the hedge contract three positions would arise viz 1 the parties may not agree upon any difference in which event it would not be necessary to fill in the term as to difference in the contract notes 2 the parties may agree upon such difference and that would have to be mentioned in the contract notes or 3 the parties could apply to the Board to fix the settlement rates
It appears that the contention urged on behalf of the appellants would be more in consonance with business idea  because no business man would think of immediately forking out a large sum of money on the next ensuing settlement day
It would be tantamount to paying the price of the goods or a substantial part thereof long before the due date of delivery ever 46 362 arrived
While recognizing the necessity of arriving at an agreement in this manner we are however not impressed with the argument that in the event of no such agreement as to the difference having been reached it would even so be necessary to mention in the contract note that the difference agreed upon was nil
When the parties entered into the transactions all the terms and conditions of the contract would certainly be negotiated and agreed upon between them
It would be open to them in view of the by laws above referred to to agree upon the difference above or below the settlement rate of hedge contracts for the purpose of facilitating the settlements through the clearing house
But if no such difference above or below the settlement rate of hedge contracts were agreed upon between the parties it would not necessarily follow that the word nil had got to be mentioned in the contract notes
The very fact that no difference above or below the settlement rate of hedge contracts was agreed upon in the manner contemplated would be enough to spell out an agreement that no such difference was to be computed in arriving at the settlement rates in respect of these contracts
If that was the true position it would be Superfluous to write the word  nil  as contended for by the appellants and the consequences of such non mention would be the same as if the difference agreed upon was nil
By law 141 2 could then be worked out without any difficulty and the settlement rates in the case of delivery contracts would be fixed on the basis of the settlement price of the hedge contracts taking into account the facts that there was either no difference which was agreed upon or that the difference agreed upon was a specific one which was mentioned in the contract notes
It was however pointed out on behalf of the respondents that the official contract form contained the expression  abovebelow the settlement rate of hedge contract No 
Even though this may have been in consonance with the position as it obtained when the hedge contracts of five different varieties were in vogue involving the specification of hedge contracts as Nos
I to 5 that position substantially chanced 363 when hedge contracts of these 5 varieties were abolished and in their place and stead was substitute a hedge contract called the 1
The five varieties of hedge contracts were also for different deliveries which did not necessarily coincide one with the other and these contracts were not on the market all at one time With the result that it would be necessary if the requirements of the contract form had to be complied with to fill in the blank not only by describing the hedge contract number whether it was one or the other of the numbers I to 5 but also the particular hedge contract of a particular delivery
Even if it may be assumed that the blank to be filled in in this behalf required a mention not only of the hedge contract No but also of a particular delivery thereof all that went by the board when the I C C was substituted in place of the hedge contract Nos
I to 5
The old contract form which had been prescribed by by law 80 was continued without any change being effected therein by virtue of such substitution and if at all the parties to a contract were to fulfill the requirements of the contract form it would be necessary for them to strike out the words  hedge contract No and put in their place and stead the word  1 C C  Even there the 1
C C appertained to different deliveries which were not on the market all at one time
The months of delivery were nowhere required to be filled in in the contract form whether the contract form required the parties to have regard to the hedge contract No or the I C C and to that extent it can be said that the parties were expected to rely upon their commonsense and the practice of the trade as to what particular delivery was contemplated when the contracts were entered into between them
All this goes to show that the parties to the contract were not tied down to a literal compliance with the terms contained in the official contract form but were required to act according to the position as it then obtained and if they substantially complied with the requirements of the contract form that was enough
If the hedge contract No was not in vogue in the 364 market they need not conform to that provision in the official contract form but could make the necessary changes in accordance with the type of hedge contract which was then in vogue
Similarly they would have to record in the contract form the agreement reached between them in regard to the difference of Rs above or below the settlement rate of the hedge contract No if they came to a particular agreement in that behalf
if however no such agreement was reached between the parties and here the effect of no agreement having been arrived at in regard to such difference would be the same as if the agreement between them was that the difference was to be nil no mention need be made of such difference in the contract form
The result of either of the two latter positions would be that if the contracts were to pass through the Clearing House the settlement rates would be determined on the basis of the settlement price of the hedge contract fixed by the Board for those various settlements and the parties would have to pay to or receive from one another the differences calculated on the difference between the contract rates and those settlement rates
The whole of this discussion however is academic by reason of the fact that in practice delivery contracts were not put through any periodical settlements and at all material times the operation of this term in the official contract form  had become obsolete
This position was not disputed on behalf of the appellants and their counsel stated before the Court that he did not wish to dispute the fact that delivery contracts were at no time submitted to periodical settle ments in the Association
The effect of this procedure being adopted in the Association was tacitly to suspend the operation of these by laws as to periodical settlements in respect of delivery contracts and it would be superfluous nay absurd on the part of the business people entering into contracts subject to the by laws of the Association to incorporate in the contract form provisions which had become obsolete
If the contracts were not to pass through the periodical settlements in the Clearing House no question would 365 ever arise of settlement rates requiring to be fixed much less of the basis of such settlement rates being determined or of the difference of Rs above or below the settlement rate of hedge contracts being ever agreed upon between the parties
If under those circumstances the parties did not fill in those blanks which required to be filled in in the official contract form on the basis of by laws 139 and 141 being in operation it could not be said that they had failed to substantially comply with the requirements of the official contract form
The official contract form had to be filled in so far as it was practicable
The operation of these by laws was in effect suspended and by the tacit understanding of the trade they were to be treated as if they did not exist
It could not therefore be urged that the parties were put to the necessity of agreeing to such differences if having regard to the circumstances that prevailed it was impracticable to do so and if these blanks were not filled in as originally contemplated the contract notes could certainly not be impeached as being not in accordance with the by laws of the Association
It was however urged on behalf of the appellants that if the parties to the contracts intended not to comply with the requirements of by laws 139 and 141 that would by itself vitiate the contracts because in that event the contracts would certainly be not in accordance with the by laws of the Association
The parties in that event intended to perpetrate an illegality at the very inception of the contracts and the contracts were therefore void
There is considerable force in this argument but we do not feel called upon to consider the same in view of the fact that that was not the ground on which the validity of the suit contract was challenged in the plaint
We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of section 8 of the Bombay Cotton Contracts Act 1932
366 Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellant  and the respondents were not void as alleged
The appellants were therefore not entitled to recover from the respondents the said sum of Rs 180099 8 0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants  claim
We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance with the situation as it obtained
from time to time
When by law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form
When the by laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the Clearing House the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs above or below the settlement rates of hedge contract No to be filled in by the parties
Equally untenable west he retention of the expression  Hedge Contract No when the five different varies of hedge contracts were abolished and one hedge contract named 1
C C was substituted therefor
We fully endorse the observations made by the appellate Court in the course of its judgment  We have had occasion to point out in the past how badly the by laws of the East India Cotton Association are drafted and how clumsily the forms also settled and the present form is an illustration of what we have had occasion to say in the past
 The manner in which the official contract form which had been settled when the by laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the by laws and the practice of the trade only enhances the difficulties of the parties and enables the parties who are so minded to raise all 367 sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association
It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the bylaw in operation from time to time and the practice of the trade prevailing in the Association
The result therefore is that this appeal fails and must stand dismissed with costs throughout
Appeal dismissed


Summary:
It was alleged that the appellant a youth of 18 years forcibly lifted PW 1 a girl of tender age of 11 12 years took her to a shallow place and committed rape on her on account of which she began to bleed profusely that on hearing the call of PW 7 the appellant ran away
A report was lodged with the police next morning
The girl was examined by a lady doctor who issued a medical certificate
The leaves collected from the place of occurrence the slides the swabs and the salwar were for warded to the Chemical Analyser and Serologist for examina tion and report
The appellant was prosecuted for committing rape on PW 1
The trial court convicted him under section 376 IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs2000 in default to suffer rigorous imprisonment for a further period of two years
On appeal the High Court while confirming the convic tion reduced the substantive sentence from imprisonment for life to rigorous imprisonment for seven years but retained the punishment in default thereof
In the appeal before this Court it was contended on behalf of the appellant that the carbon copy of the medical certificate given by the lady 124 doctor who examined PW 1 was inadmissible in evidence that having regard to the girl s age and the fact that her vagina admitted one finger with difficulty it was not possible to believe that there was penetration that there was delay in filing the First Information Report that since the girl was of a tender age the possibility of her wrongly involving the appellant could not be ruled out and that this possibility was strengthened by prior enmity absence of spermatozoa and infirm medical opinion
Dismissing the appeal HELD 1
Section 32 of the Evidence Act provides that when a statement written or verbal is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay the same is relevant and admissible in evidence
127F In the instant case the lady doctor who examined PW 1 and issued the medical certificate was not available for giving evidence as she had proceeded on long leave
In her absence the trial Judge felt that it would not be possible to secure her presence without undue delay and therefore permitted the prosecution to prove the certificate through PW 2 who was conversant with her hand writing and signa ture
Besides since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to section 62 of the Evidence Act
Therefore the medical certificate was clearly admissible in evidence
127D G 2
In the absence of penetration there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the salwar
Merely because the Doctor found that the vagina admitted one finger with diffi culty it cannot be inferred that there was no penetration as the muscles must have contracted by then
The appellant a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding
128B C 3
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case
The report of the Chemical Analyser and Serologist supports the version of the prosecution witnesses that there was profuse bleeding from the vagina
129F 128F 4
Immediately after the incident was narrated to the mother and other ladies no decision could be taken because of the absence of the 125 father
On his arrival he informed the Sarpanch who ad vised him to report it to the Police next day in the morn ing since it was too late to travel to the Police Station at that hour and accordingly the FIR was lodged on the next day
Therefore there is no delay in filing the FIR 128G H 5
It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the Crime
Except for the suggestion made in the cross examina tion of PW 8 and the statement under section 313 of the Code of Criminal Procedure there is no material on record to give credence to the suggestion that the son of PW 8 was inti mate with the prosecutrix and he had raped the girl
129C 6
There is strong reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant
In such circum stances there can be no merit in the appeal
127G