1976 Supreme(SC) 509

SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG AND JASWANT SINGH, JJ.
Timblo Irmaos Ltd., Margao Appellant
Versus
Jorge Anibal Matos Sequeira and another, Respondents.
Civil Appeal No. 1868 of 1968,
D/- 16-12-1976.
Advocates appeared
Mr. S. V. Gupte, Sr. Advocate, (Mr. Naunit Lal and Miss Lalita Kohli, Advocates with him), for Appellant; Mr. V. C. Mahajan and 735 Mr. R. N. Sachthey, Advocates, for Respondents.
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Headnote:

Evidence Act - Section 92 – Civil Procedure Code - Section 35 and 37 – Claim of compensation - Power of attorney - whether the second contract of 5th February, 1954, was duly covered by the authority conferred by the Sequeiras upon their attorney or not - whether the company had to pay the shippers any demurrage - whether such payment had to be made to the shipping company or not - Sequeiras are holders of a mining concession. They, it was alleged, had entered into the two contracts, one of 23rd January, 1954 through their attorney, Ramesh Jethalal Thakkar (hereinafter referred to as Thakkar Junior). for supplying 8000 tons of iron ore altered in some respects, by a later agreement and the other of 4th February, 1954 alleged to be binding on the Sequeiras although entered into through Jethalal C. Thakkar (hereinafter referred to as "Thakkar Senior), the father of R. J. Thakker. The most important clause in the contract of 23-1-1954, was that iron ore should be loaded in a ship Mary K at Marmagoa, and that the loading must be done at the rate of 500 tons per "weather working day" of 24 hours. Under the Contract the rate of demurrage for not loading the ship in time was to be paid at the rate of US $ 900.00 per day and pro rata for each fraction of a day. The buyer company was to pay what was called "despatch money" at half the rate of demurrage for time saved in loading. The payment was to be in the Portugese Indian rupees at the exchange rate Rs. 4.76 per US $. The buyers had also to make an initial payment of Rs. 55,000/- as soon as delivery by loading began. The buyers were also to establish a Letter of Credit, before 27th January, 1954, in favour of the sellers, the Sequeiras, for the full value of the iron ore after deducting Rs. 55,000/- paid initially, and Rs. 1/4 per gross ton awaiting final settlement by presentation within ten days, at the bank named in the agreement, by presentation of the certificate of weight issued by the Master of the vessel. Certificates of the quality and specifications and of final weighment were to be sent by the buyers after the vessels arrival at the port of discharge – Held, In a case like the one before us, where a general power of representation in various business transactions is mentioned first and then specific instances of it are given, the converse rule ,which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being largely common) applies. That rule is that specific instances do not derogate from the width of the general power initially conferred. To such a case the ejusdem generis rule cannot be applied. The mode of construing a document and the rules to be applied to extract its meaning correctly depend upon not only upon the nature and object but also upon the frame, provisions, and language of the document. In case of uncertainty, the rule embodied in proviso 2 to Section 92 of the Evidence Act, which is applicable to contracts, can be invoked. Thus, the ultimate decision on such a matter, turns upon the particular and peculiar facts of each case - Coming now to the second question, we find that the findings of fact recorded by the Judicial Commissioner are unexceptionable. Firstly, it was found that, although, under the contract, the defendants-respondents could load iron ore at any time during 24 hours, which included the night, yet, the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient lighting or enough winches to enable due performance of the contract. Secondly, it was admitted that the appellant never opened a Letter of Credit with the named bank by 27th January, 1954, as promised by it. Thirdly, the delay in loading was held to be due to the fault of the company. The Judicial Commissioner rightly concluded that the company had not discharged its own part of the contract so that it could not claim demurrage or damages. Indeed, it was found that the company did not have to pay any demurrage at all to the shippers for delayed departure - Contention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage. It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not. We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves. It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading. When the appellant itself had committed breached of its obligations, it is difficult to see how the respondents could be made responsible for the delay in loading. We think that the Judicial Commissioner had rightly disallowed this part of the claim - Appeal partly allowed