TMI Blog1967 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the byelaws of the Association. and on terms and conditions set out therein The respondents denied the existence of the contract and also its validity. The High Court dismissed the application holding that M/J(N)6SCI-13 the contract was invalid in that it did not comply with the requirements of s. 15 sub-s. (4) of the Forward Contracts (Regulation) Act, 1952. By special leave, the appellants have appealed to this Court. The relevant recitals in the notes, which, it was claimed, constituted the contract between the parties may first be set out: 7A, Clive Row, Calcutta-1 Sunder Lal Son. Messrs. Bharat Handicrafts (Private) Ltd. Dear Sirs, We have, subject to the terms and conditions hereinafter referred to, this day sold to Messers., Sunderlal Son by Your order, and on your account: Yours faithfully, Sunderlal Sons. Calcutta, 16th September, 1960 Messrs. Sunderlal Son Dear Sirs, We have, subject to the terms and conditions hereinafter referred to this day bought from Bharat Handicrafts (Private) Ltd., by your order, and on your account: Yours faithfully, Sunderlal Son. Validity of the contract was challenged by the respondents on, two grounds- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in writing. Sub-sections (1), (2) and (4) of s. 15 in force it the date of the contract were these: (1) The Central Government may by notification in the Official Gazette, declare this section to apply to such goods or class of goods and in such areas as may be specified in the notification, and thereupon, subject to the provisions contained in section 18, every forward contract for the sale or purchase of any goods specified in the notification which is entered into in the area specified therein otherwise than between members of a recognised association or through or with any such member shall be illegal. (2) Any forward contract in goods entered into in pursuance of sub-section (1) which is in contravention of any of the bye-laws specified in this behalf under clause (a) of sub-section (3) of section 11 shall be void-- (i) as respects the rights of any member of the recognised association who has entered into such contract in contravention of any such bye-law, and also (ii) as respects the rights of any other person who has knowingly participated in the transaction entailing such contravention. (4) No member of a recognised association shall, in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the prescribed form of the note there is a slip in which normally the confirmation of the other party to the contract would be obtained,. The confirmation slip was it appears detached from the sold note, but it was not produced before the High Court by the appellants. Counsel for the appellants says that the respondents did give a slip confirming the contract in the sold note, but it was unfortunately not tendered in evidence in the High Court, and he applies for leave to tender in evidence that confirmation slip in this Court. The confirmation slip sought to be produced in this Court purports to bear the confirmation by a person who has signed it as 'M.L. Bahati'. This document was admittedly in the possession of the appellants and could have been produced by them in the High Court. No rational explanation is fur- nished for not producing the document before the High Court. Again the document does not prove itself: to make out the case that the respondents had consented in writing to the terms of the contract, evidence that the signature M. L. Bahati was subscribed by the person bearing that name and that he was authorised to confirm the note on behalf of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of s. 15 does not invalidate a contract merely because there is no writing evidencing or confirming the consent or authority of the non-member, even if the member has entered into a contract in respect of goods purchased or sold on his own account. Counsel says that the prohibition imposed by the Parliament against the entry into such a contract does not make it void: only by entering into the contract the appellants are rendered guilty of an offence under s. 20 sub-s. (2) of the Act. In support of that contention, counsel says, that since in ss. 15(1), 15(2), 17(2) and 19 the Parliament has expressly enacted that in certain eventualities forward contracts shall be illegal or void, but in s. 15(4) no such consequence is indicated, a contract even in breach of the prohibition is enforceable, though it may expose the appellants to a criminal prosecution. Reliance is placed in support of that plea upon Shri Bajrang Jute Mills Ltd. v. Lalchand Dugar 68 Cal. W.N. 749. in which the Calcutta High Court observed in dealing with the validity of a contract entered into by a member of a recognised association on his own account with a non-member in respect of specified goods: ......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or confirming the consent or authority of such person. The prohibition imposed by cl. (4) is not imposed in the interest of revenue; the clause is apparently conceived in the larger interest of the public to protect them against the malpractices indulged in by members of re- cognized associations in respect of transactions in which their duties as agents conflict with their personal interest. The Parliament has clearly made a writing evidencing or confirming the consent or authority of a non- member as a condition of the contract, if the member has entered into a contract on his own account. So long as there is no writing as is contemplated by s. 15(4) or the proviso thereto, there is no enforceable contract: it is the consent or authority in writing or confirmation of such consent or authority which brings into existence an enforceable contract. Any other view. would attribute to the Parliament an intention to impose a prohibition which would be rendered for all practical purposes futile. Under s. 20 sub-s. (2) of the Act a penalty is imposed on any person who enters into a forward contract in contravention of the provisions contained in sub-s. (4) of s. 5. The penal clause is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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