9911796707
TMI Blog1969 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... se races in Western India and are accordingly doing so at Bombay and Poona. The defendants have made various Rules relating to the placing of bets at such races, namely, "Betting Rules-Rules for Betting with Bookmakers", "Totalizator Rules-Win and Place", "Rules for the Forecast Pool", "Rules for Double and Treble Events Betting (Accumulators)", "Rules for the Daily Treble Event Pool" and "Rules for the Jackpot". On every race-day the defendants operate a separate Win Jackpot Pool and persons making bets for this Pool are required to nominate in advance before the start of the first of the five selected races the winning horses, that is, the winners in all the selected races, in the correct sequence, scheduled to be run that day according to the Official Race Card. The Official Race Card is a card published by the defendants and sold on the day of each race meeting and it contains, amongst other information useful to those who attend races, a reproduction of the above Rules. The relevant rule of the Rules for the Jackpot, with which I am concerned in this originating summons, is Rule 8 which is as follows : 8. Dividends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not presented and surrendered during the abovementioned period the Club shall be released of all liabilities and be discharged from all claims in respect thereof. Investors should not destroy any Tickets or Vouchers until after the dividends have been declared. 5. According to the plaintiff, on January 1, 1069 he attended the races at Mahalaxmi and purchased several tickets for the Jackpot Pool. The Official Race Card for that day has been tendered by consent and is Exh. B. At the end of the day the plaintiff found that he held five winning tickets, or rather, in the terms of the said Rule 8, successful vouchers or slips, each for a dividend of ₹ 2,092.50p. The actual holding of the plaintiff was one card No. 85959 and four slips bearing Nos. 11/4441, 14/2276, 13/4704 and 11/4440, the dividends on which aggregate to ₹ 10,462.50 p. On the next day, that is, on January 2, 1969, the plaintiff surrendered the said five tickets to the defendants and obtained in exchange from the defendants a document bearing No. 1211, which is exh. A. This document is in the following terms : This document is signed not only by the manager and the general manager of the defendants b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginating summons on March 11, 1969. 6. It is the plaintiff's case that under the said Rule 8 of the Rules for the Jackpot in cases where dividends are of ₹ 5,000 and over, the defendants have an option, when a request is made to them by the investor, to make payment by cheque against presentation and surrender of the successful vouchers or slips and that by the said document, exh. A, the defendants have exercised such option and have agreed to make payment to the plaintiff of the said sum of ₹ 10,462.50 p. by cheque and that having once exercised the option given to them by the said Rule 8 the defendants are not thereafter entitled to go back on the exercise thereof and to insist that they would make payment in cash. By their written statement the defendants have taken two preliminary objections, namely, (1) that this originating summons does not fall within the scope of Rule 254 of the Original Side Rules as neither the Rules for the Jackpot nor the document, exh. A, can be said to be a "written instrument" within the meaning of the said Rule 254, and (2) that in the facts and circumstances of this case the Court in the exercise of its discretion under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed or will. Rule 254 cannot be invoked unless a document falls in one of these three classes. Admittedly, neither the Rules for the Jackpot nor the document, exh. A, is a deed or a will. The question is whether both documents or either of them fall in the third class and can be said to be a "written instrument". Rule 254 is substantially the same as the old English Rule 1 of Order LIVA of the Rules of the Supreme Court, 1883, which provided as follows : In any Division of the High Court, any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested. The scope of Order LIVA, Rule 1, came to be canvassed in Mason v. Schuppisser (1899) 81 L.T.R. 147. In that case Stirling J., while construing the meaning of the expression "written instrument" in Order LIVA, Rule 1, opined (p. 148): ...It seems to me that the word 'Instrument' was meant to receive a wide construction, and that, it would apply to any written document under which any right or liability, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to assign the remainder of the term under the said lease without the consent of the defendant. At the hearing of the summons an objection was raised on behalf of the defendant to the Court determining the question on an originating summons and it was urged that the plaintiff should be directed to proceed by means of a regular suit. Disposing of that contention the learned Judge observed (p. 181) : I think the procedure which has been adopted by the plaintiff in the present instance is entirely correct. Under the rules of this Court (see Chapter XIII) any person claiming to be interested under a deed or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested. The corresponding rule in England is H. S.C. Order XIII, rule 1. Among matters dealt with from time to time under the last-mentioned rule, have been questions as to whether an effective notice to determine a lease had been given (Viola's Indenture of Lease, In re. Humphrey v. Stenbury [1909] 1 Ch. 244), whether a license to assign had been unreasonably withheld (Young v. Ash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lizator of the Club, for the Rules for the Jackpot are expressly made subject to the Rules of Racing and the General Rules of the Totalizator of the defendant Club. The question of construction of these Rules, forming as they do the terms and conditions of the contract between the parties, would, in my opinion, be a proper subject-matter for the construction by the Court under Rule 254 of the Original Side Rules. So far as the document, exh. A, is concerned, as I will presently show while dealing with the merits of the matter, it is not possible to hold or construe this document as merely an acknowledgment that the winning tickets or slips described therein have been received by the defendants. In my opinion, for reasons which I will presently set out in a later part of this judgment, this document constitutes an agreement between the parties under which the defendants received the winning tickets or card and slips on the strength of the assurance given and promise made by them to the plaintiff that they would make payment of the dividends in respect of such winning tickets by cheque. An agreement between the parties as contained in the said Rules and in the document, exh. A, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstood as including reference to a formal legal writing like an order made under a statute or subordinate legislation or any document of a formal character made under constitutional or statutory authority. We have no doubt in our mind that the expression 'instrument' in S. 8 was meant to include reference to the Order made by the President in exercise of his constitutional powers. So construed, the President's Order would, even after the repeal of the Ordinance aforesaid, continue to govern cases of detention made under It. 30 aforesaid under the Ordinances. Now, if we look at the definition of the word "instrument" as given in Stroud's Judicial Dictionary, Third Ed. Vol. 2, at pp. 1472-1474, we find that the word "instrument" bears different meanings in different contexts and that it is defined variously in several statutes. The general meaning of the word "instrument" as given in the passage from Stroud's Judicial Dictionary quoted in the judgment is "a writing". What their Lordships of the Supreme Court had to construe in the case of Mohan Chowdhury v. Chief Commr., Tripura was the meaning of the word "instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cises its discretion under Rule 255 against deciding a question of construction on an originating summons are also well-settled. In Vithaldas v. Dulsukhbhai , following English cases, Pratt J. held that an originating summons was not the proper procedure to be adopted where there were disputed facts of such complexity as to involve a considerable amount of oral evidence. Similarly, in Mason v. Schuppisser, at p. 149 (2), referred to earlier, Stirling J. observed that one class of cases to which an originating summons has been held not appropriate is where there is a disputed question of fact. In Lewis v. Green Warrington J. refused to hear an originating summons on the ground that even if the question of construction was decided in favour of the plaintiff, there were several defences on facts raised by the defendant which would still remain to be determined and that the question of construction was not such as would necessarily put an end to the litigation. The case before me involves a pure question of construction of the Rules for the Jackpot and the document, exh. A. There are no disputed questions of fact, all the facts being admitted either in the pleadings or at the hearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of the dividends on the successful vouchers, or slips by cheque, provided the dividends are ₹ 5,000 and over. On such a request being made, it is open to the defendants to accede to it and to make payment by cheque against surrender of the successful vouchers or tickets within the specified period, that is, within the period specified in Rule 9 of the Totalizator Rules. This right to make a request, however, does not confer on the investor any right to receive payment by cheque. The option is of the defendants and the successful investor cannot compel the defendants to make payment by cheque unless the defendants are willing and agreeable so to do. Under Rule 8 of the Rules for the Jackpot the plaintiff has, therefore, no right to receive payment by cheque of the dividends in respect of his successful card and slips. 11. On a request under Rule 8 of the Rules for the Jackpot being made to them and on their acceding to it, the defendants may, instead of immediately making payment by cheque, agree to make payment by cheque. When the defendants so agree they, of course, do so for their own convenience. When, while agreeing to make payment by cheque, no time for givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has also referred me to a judgment of Tek Chand J. in Kali Charan v. Ravi Datt (1957) I.L.R. 10 Pun. 1286 where various English authorities on the subject of legal tender have been referred to. Mr. Desai has also invited my attention to the definitions of a bill of exchange and a cheque given in the Negotiable Instrument Act, 1881, and has urged that a cheque is merely a bill of exchange drawn on a banker and that upon such cheque being presented to the banker, the banker would be bound to pay the drawee in tender which is recognised in law as legal tender, namely, in the coin of the land or the bank notes issued by the Reserve Bank and that what the plaintiff was demanding by insisting upon a cheque was that instead of the defendants, a third party, namely, the banker, should make payment to him in cash. Strictly speaking, on the facts, this is not correct, for, it is conceded by Mr. Desai, learned Counsel for the defendants, that all cheques in respect of winning tickets which have been issued by the defendants are crossed and order cheques and that if the defendants make payment of the amount of the dividends in question to the plaintiff by cheque, such payment would also be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh, particularly where the amount is a large one, though such payment would be legal tender and such party would be within his strict legal rights in so insisting, such party would be considered unreasonable in business circles. In Sir Dinshah Mulla's Commentary on the Indian Contract Act, 8th Ed., at pp. 285 and 286, it is stated : There are hardly any recent English cases on tender of money debts, and the habits of modern business appear to have greatly diminished the importance of the subject. The defendants are not concerned with the reasons which have prompted the plaintiff to insist on payment by cheque. The only question for consideration is whether the plaintiff is entitled to receive payment by cheque and the answer to that question depends upon the special term of the contract between the parties with respect to the mode of payment. In the present case there exists such a special term which is contained in the document, exh. A, and the plaintiff is entitled to insist that the contract should be performed in accordance with its terms. 13. It was next argued that even if a contract contains such special term with regard to mode of payment, it is inoperative in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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