The Ordinance was intra vires and declared it to be such. The original contracts must be settled in terms of Cl. 3 (c) (ii ).

( 1 ) THIS is an appeal from a judgment of Baohawat J. requiring our decision upon the effect and validity of an Ordinance made by the Governor of this Province.

( 2 ) THE plaintiff is a merchant who has been carrying on business in Calcutta in jute goods for the last 30 or 35 years and during this time he entered into numerous transactions to the approximate value of rupees eighty to ninety crores. In the year 1949, the volume of his business exceeded Rs. 2 crores. Yet he never possessed a godown nor any place to store jute goods. He gives 'actual' delivery by means of delivery orders or mate's receipts. In his evidence he said :"the goods remain with the mills. We deal either in delivery orders or mate's receipts. Delivery order is in other words the goods. Whether you say delivery order or delivery of the goods, it is one and the same thing. "that is how he carries on business.

( 3 ) AS to the defendant, the learned trial Judge has thus summarised its position :-"a large part of the defendant's contracts is settled by paying the difference in price. In my judgment neither the making nor the settlement of a contract for purchase and sale of jute goods is a dealing in sale and purchase of goods involving actual delivery thereof. With regard to some of the contracts which are not settled, the defendant gives and takes delivery orders and receives and pays the price of jute goods against such delivery orders. . . . . . . . . Some of the defendant's contracts are however strictly performed by actual delivery of the goods alongside the steamer. "

( 4 ) HE has further held that"the defendant does give and receive shipping instruction's and does also pay and receive the price of jute goods in exchange for mate's receipts. Such mate's receipts are obtained by the mills after the goods are delivered alongside the steamer. "the learned Judge continues :"the defendant is neither a mill nor a shipper. Frequently its contract of sale and purchase of jute goods is a link in a long chain of contracts starting with the Jute mills and ending with the shipper or exporter. The various links in the chain consist of middlemen who are both buyers and sellers in their turn. The shipping instruction is given by the shipper and similar shipping instructions are given by each middleman including the defendant all along the chain until it reaches the mills, The goods are delivered alongside the vessel by the mills against mate's receipt which is forwarded along the chain until it reaches the shipper. "

( 5 ) THIS shortly according to the trial Judge is the position of the parties. These findings have not been challenged before us, and the respective contentions of counsel were made on the basis of these findings.

( 6 ) THE plaintiff, who is the respondent before us, agreed to buy under three several contracts, the first two being dated 8th August 1949, and other dated 17th August 1949, made on the Indian Jute Mills Association printed Forms, and the defendant agreed to sell B-Twill bags (jute goods), October-December 1949 delivery. On 28th September 1949, the plaintiff made three cross contracts (Settlement contracts as they are usually called) with the defendant to sell back the goods to the defendant, delivery October-December 1949, and agreed to pay the difference at certain rates on the due dates. The total difference was Rs. 1,15,650, for which the plaintiff duly submitted his bills, which the defendant refused to pay.

( 7 ) IN the written statement the defendant pleads that the contracts of sale which it had made with the plaintiff became impossible of performance. But no point was made on this defence in the trial Court, and the case was fought on the only ground that the Settlement contracts were void being in contravention of the West Bengal Jute Goods Futures Ordinance, 1949. The only issue the parties by consent raised before the learned trial Judge was this: Are the three settlement contracts illegal in view of the ordina