Expansion ’class of business’ given in the notification refers to forward contracts.

The Chief Justice.-The plaintiff in O. S. No. 21 of 1945 on the file of the Court of the District Judge of West Godavari at Ellore files this appeal against the dismissal of his suit brought to recover a sum of Rs. 5,373-15-0 as damages for breach of contract to sell certain quantities of groundnut oil cake. On 19th November, 1943, the plaintiff entered into three contracts with the defendant for the purchase of groundnut oilcake of various quantities (Exs. P-1 P-2 and P-3). Under Ex. P-1, the quantity was 340 bags of 164 lbs. and the price was Rs. 22-8-0 per putti of 500 lbs. exclusive of gunny bag. The place of delivery was Ellore boat or platform. The time of delivery was before the end of May 1944. Under Ex. P-2, a similar qua’ntity at similar price was agreed to be sold and to be delivered at the same place, but the time for delivery was before the end of April 1944. Under Ex. P-3 the price and the place of delivery were the same as in Ex. P-1 and Ex. P-2 and the quantity 2040 bags in all, i.e., 150 tons of which 50 tons were to be delivered in April 1944, 50 tons in May 1944 and 50 tons by June 1944. Long before the due date of performance, on 8th January, 1944, the Central Government promulgated the Vegetable Oils and Oilcakes (Forward Contract Prohibition) Order, 1944. Under the provisions of that Order, all forward contracts in respect of the articles specified in the schedule to the Order were prohibited after the specified date which was 12th January, 1944. Clause 4 of the Order provided that notwithstanding any custom, usage or practice of the trade or the terms of any contract, every forward contract in any article to which the Order applied outstanding at the close of business on the specified date shall be deemed to be closed out at such rate as the Central Government may by notification in the Official Gazette fix in this behalf. The clause also provided that the difference arising out of any contract so closed out shall be payable on the basis of the rate fixed as aforesaid, and the seller was not bound to give and the buyer not bound to take delivery. By a subsequent notification on the 13th January the rate referred to in clause 4 was declared to be “the market rate applicable to such class of business on that date,” i.e., on 12th January. On the same day that the order was promulgated, there was a notification excluding from the provisions of the Order:

“Forward contracts for specific qualities or types of any article to which the said order applies, and for specific delivery at a specified price, delivery orders, railway receipts or bills of lading against which contracts are not transferable to third parties.”

On the 10th April, 1944, the plaintiff issued through his vakil a notice, Ex. D-1, to the defendant stating that by reason of the aforesaid Order, the delivery in respect of the contracts which he had entered into with the defendant had been cancelled and calling upon him to pay the difference in price between the contract rate and the rate prevailing on 12th January, 1944, which according to him was Rs. 27-8-0 per putti of 500 lbs. The defendant never replied to this notice. On 20th March, 1945, the suit was filed for recovery of damages on the basis set out in the notice with interest from 12th January, 1944, the specified date under the Order. The main plea on behalf of the defendant was that the suit contracts were exempt from the application of the Order as they fell within the scope of the notification under clause 5 of the Order, and therefore as the plaintiff himself had committed breach of the contracts by terminating them before the date of performance, he was not entitled to any damages. The learned District Judge upheld this plea and dismissed the suit. He also gave his finding that if it were that the plaintiff was entitled to damages he would fix the market rate on 12th January, 1944, at Rs. 24 per putti.

The main question in the appeal is whether the suit contracts fall within the class

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