1. The petitioner is a member of the East India Cotton Association at Bombay, the opponents non members in Dhulia, There was a hedge contract between the parties which is not in writing. The petitioner sued upon it in the Court of Small Causes at Bombay, and the opponents subsequently brought a suit against the petitioner in Dhulia, which has been stayed. The Court of Small Causes held that bye-law 81 applied, that the hedge contract in question was not in writing, that the petitioner was not entitled to sue and dismissed the plaint. The petitioner has obtained a rule in revision.
2. It is argued on his behalf that bye-law 80 applies and not bye-law 81, under bye-law SO hedge contracts may be verbal and the decision of the Court of Small Causes was, therefore, wrong; and, secondly, that the opponents having themselves brought a suit in Dhulia cannot both approbate and reprobate, and must be taken to admit the contract; and it need not, therefore, be in writing. It is contended for the opponents that bye-law 81 applies, and that the view of the lower Cour is correct. Bye-laws 80 and 81 which are statutory run as follows:
80. Delivery contracts Shall be made on the official form given in the Appendix. Hedge contracts may be verbal or in writing and Forward when in writing shall be in one or other of the forms given in the contracts Appendix. Whether verbal or written all contracts shall be sub-how made. ject to the Bye laws, provided that in the case of Delivery Contracts Bye-laws 149 to 163 inclusive shall not apply.
81. Contracts between agents and their constituents, e.g., between a member and a non member or between a member acting as an Agency agent and a member acting as his constituent shall be subject to Contracts. the Bye-laws and shall be in writing in the form given in the appendix (pages 67, 68, 69 and 70), provided that to such contracts Bye-laws 130 to 166 inclusive shall not apply.
A member whose constituent has agreed in writing to sign the prescribed form of contract and fails or refuses to do so after terms have been arranged shall be treated in all respects as if he had done so and both parties shall have the rights and remedies accorded by these Bye-laws.
3. Bye-law 80 applies to forward contracts and bye-law 81 is shown in the margin to apply to agency contracts. If the argument for the petitioner is correct, before the word 'contracts' in bye-law 81 the word 'delivery' ought to be inserted. It would not, therefore, apply to hedge contracts at all. But both the bye-laws must, as far as possible, be reconciled, particularly when they succeed each other. It is apparent that if bye-law 81 applies to delivery contracts only and not to hedge contracts, the bye-law could easily have said so. Reading them together, however, we are of opinion that while bye law 80 applies to forward contracts between members of the association as such, by-law 81 applies to agency contracts as opposed to what may be called membership contracts. Bye-law 81 applies in terms to contracts between agents and their constituents, i.e., between a member and a non-member as in the present case.
4. If so, bye-law 81 applies in terms. Bye-law 80 applies to all contracts between member and member as such and not for instance in the case of a member acting as a constituent or an agent as in bye-law 81. Otherwise it is impossible to reconcile both the bye-laws without adding to them or subtracting from them which we may not do.
5. There is no precise case on the point, and in Ratilal v. Mowjee (1927) 30 Bom, L.R. 122 the judgment is not clear whether the contract in question was a hedge contract or not. It was apparently common ground that bye-law 81 applied The only question was whether the agreement which was not signed would suffice in the absence of a contract in writing. It was held that it did not. The recent decision of the Appeal Court in Radhakison Gopikison v. Balmukund Ramchandra : (1930)32BOMLR1319 is not concerned with bye-laws 80 and 81, and need not, therefore, be considered. In the result, we are of opinion that the decision of the lower Court was right, and it is not, therefore, necessary to consider the other point argued before us, viz., whether, if we had come to a different conclusion, the present case would be one for the exercise of our revisional power under Section 115 of the Code of Civil Procedure. The applications fails and the rule is discharged with costs.
6. I agree.