JUGGILAL KAMLAPAT versus PRATAPMAL RAMESHWAR

Citation: [1978] 2 S.C.R. 219 · Decided: 24-11-1977 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

, 
··?Y ) 
• 
JUGGILAL KAMLAPAT 
v. 
PRATAPMAL RAMESHWAR 
November 24, 1977 
219 
[M. H. BEG, C.J., A. C. GUPTA iAND P. S. KAILASAM, JJ.J . 
Sale of Goods Act 1930--Sec. 2(4). 18 and 23. 
Meaning of document of title to g?Ods-Tf pucca delivery order passes the 
title-If custoni can prevail over law or express contract. 
Evidence Act 1872 Sec. 92 whether custoni can be pleaded to vnry a. written 
contract. 
Civil Procedure Code 1908 Order VIII rule 2 and 3-Whether all grourid! 
of defence must be raised-Effect of not raising all defence. 
The appellant~plaintiff entered into a contract with respondents to sell diverse 
quantities of B. Twill. 
By another contract the appellant agreed to sell to the 
resPondents certain quantity of Hessian goods. 
All contracts '7.·ere in the standard 
forms of the Indian Jute Mills Association. All contracts contained the follow~ 
ing clause for payment : 
"Payment to be made in cash in exchange for Delivery Orders on Sellers, 
or for Railway Receipts or for Dock's Receipts or for Mate's Receipts 
(Which Dock's or Mate's Receipts are to be handed by a Dock or Ship's 
Officer to the Seller's representatives." 
The appellant tendered to the respond~ts "Pucca Delivery Orders" on dif~ 
ferent mills. These pucca deliverv orders contained a stipulation thaJ the mills 
A 
B 
c 
D 
were not bound to recognise any transferee except the original buyer and1 further 
E 
requires the transferee to give an undettaking to the mills tha1 he will take 
delivery of the goods in terms of the cootract ·.between the mills and the original 
buyer. The appellant was not the original buyer of these pacca delivery orderS. 
The respondents refused to accept the pucca delivery orders tendered by the 
appellant or pay for the same. 
Tue· appellant, therefore, instituted the present 
suit In para 19A of the plaint it was contended that the delivery orders were 
\'alid by virtue of trade, custom and usage of the jute trade in Calcutta. 1be 
respondents in their written statement contended that the documents described 
as puce.'\ delivery orders are not delivery orders at all, and, therefore, the tenders 
F 
were invalid. The respondents also denied the existence of ttade custom or usage 
as alleged. 
The learned Trial Judge of the High Court held that the pucca delivery 
orders tendered by the appellant to the resPondents were not in conformity with 
the contiracts between the parties. 'He also held that the custom wa5 not 
proved; that tohe custom alleged! was contrary to sections 18 and 23 of the Sale of 
Goods Act, 1930 a.nd also to the terms of the written contracts. 
Jn an appeal filed by ;he appellant the Division Bench of the High Comt 
confirmed the decision of the Single Judge. 
Jn an appeal by certificate Beg. CJ. (concurring with Gupta J.) 
HELD : 
1. The crux of the whole matter was whether the plaintiff had 
carried out what it had undertaken and tendered1 the delivery notes in respect 
G 
of the contracts. The respondent did not bargain for delivery orders contain-
H 
ing reservations or conditions entitling the mills or suppliers to refuse delivery 
to the holder of the delivery order, unless the defendants complied with such 
other and additional terms or conditions as the suppliers imposed. It is diffi-
cult to see how any alleged custom, could modifv the requirement of law as 
I 
A 
B 
c 
D 
E 
F 
G 
220 
SUPREME COURT REPORTS 
(1978) 2 S.C.R. 
to what ':1 document of titl~ is or what a particular contiract is or what a parti-
cul~r deh~ery order means. The plea of custom set up by the plaintiff was not 
available In the face of express statutory provisions as well as specific terms of 
the con•r~ct between the parties. Alleged custom, amounting to ignoring or 
contravening the express terms of agreements or the operation of statutory provi-
sions would obviously be invalid. A custom could not be pleaded as an answer 
to the provisions of section 92 of the Evidence Act \Vhich bar oral evidence to 
contradict, vary add to, or substract from the terms of an agreement. More-
over, it has been found by both the learned Trial Judge as well as the Division 
Bench of the High Court that there is no such uniformity of practice or usage 
about the forms of either contracts or delivery orders or their implicaitions as 
ro annex obligations contained in a particular type of delivery order to transac-
tions in general. The defendants had to enter into direct separate contracts with 
the mills before he could

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