Case: Messrs. Khimji Poonja And Company Vs. Shri Baldev Das C. Parikh

the contract. According to him, even if the contract note was not in the prescribed form, that fact did not affect the preexisting contract which had only to be made subject to the bye-laws but need not have been made in writing at all. Accordingly, the learned Judge dismissed the application.(15) Being aggrieved by that decision, the respondent went upon appeal which was heard by Stone C. J., and Coyajee J., who accepted the appeal, set aside the dismissal of the respondents petition and gave the declaration prayed for and set aside the award. The appellants have now come upon appeal before us after having obtained the necessary certificate from the Bombay High Court.(16) We find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us in Bombay."(18) Instead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay."(19) The respondent contends that this term is not in accordance with the bye-laws of the Association. The appellants on the other hand contend that there is no discrepancy, because a provision for a rate not less than Rs. 25 per bale does not contravene or is not inconsistent with the provision for a rate not less than Rs. 12 per bale. In other words, any rate above the rate of Rs. 12 may be stipulated in accordance with the terms of business to which the contract was subject, for, it did not contravene the requirement that the rate should not be less than Rs.12 . It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with that bye-law.(20) The contention of the respondent has been and is that by reason of the omission of the two clauses at the end of the contract note actually issued by the appellants, it was not in accordance with the bye laws. The learned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract. This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds](11) The Contract Notes actually rendered by the appellants to the respondent, however, were in forms, a specimen copy whereof is set out at pages 12-15 of the Paper Book. A comparison of the two forms of the contract notes will reveal the following difference : (1) In the contract note rendered by the appellants to the respondent the last sentence providing for deposit at the end of the margin clause is missing. There is, however, a rubber Stamp impression on the top of the back of the Contract to the following effect :"In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to me/ours in Bombay."Evidently, this rubber stamp provision is a reproduction of the sentence that used to be found at the end the margin clause before bye-law 51-A was amended and the clause itself was amended by the Government Notification of 1944. (2) The two new clauses required to be inserted in the contract referred to above have also beenWe find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye-laws, the contract itself must be void. We do not, however, feel pressed to emphasise this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dohors the written contract note, as held by Chagla J., we have yet to see whether the so-called pre-existing oral contract was in accordance with the bye-laws, for, if it were not, then it would be hit by S 8, Bombay Cotton Contracts Act, 1932. There is no suggestion that the terms of the so-called preexisting oral contract were in any way different from the terms subsequently recorded in the contract votes actually issued.(17) In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye-laws, should have been as follows :"In addition to the above, the deposit (not carrying interest payable) under bye-law 51A, namely, at a rate not less than Rs.12 per bale shall, when demanded, be made by you to me/us inInstead of that sentence, we have the rubber stamp impression reading as follows :" In addition to the above, the deposit (not carrying interest) payable under bye -law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay.It is true that the opening clause of the contract note makes the contract subject to the appellants usual charges and terms of business, but the contract is at the same time subject to the bye laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constituent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accordance with bye-law 51A. Apart from this consideration there is another serious objection to the rubber stamp provision. The language of that rubber stamp provision clearly indicates that it purports to summarise and set out what is payable under bye-law 5l-A, In fact, as already stated above, bye-law 51-A had been amended and what is payable under the amended bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 12 . Therefore, the rubber-stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with thatlearned Attorney-General appearing for the appellants contends that the contract was expressly made subject to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract.This contention, we are satisfied, is unsound. Bye law 65-A in terms regulates the relation between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the appellants if they became the last buyers, could under that bye-law, exercise any of those options at their own discretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the appellants as agents would be free to exercise their option. "unless I/We shall have received express instructions from you in writing to the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period." By reason of the omission of the two clauses, this right of the respondent as constituent is not made a terra of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accordance with the bye-laws on this ground also.