1. The plaintiffs as buyers claim from the defendants, the sellers, damages for non-delivery of 25 cases of umbrella ribs described as '25 x 8 Big Ball Steel Flex. Ribs Japanese Association Quality.' The contract asserted by the plaintiff is contained in the defendants' printed document, called an indent, dated 20th January 1939. By this indent the plaintiffs requested the defendants to supply or to instruct their e friends abroad to buy for the plaintiffs and to ship, if possible, the goods above mentioned upon the terms and conditions stated on the reverse of the form. After setting out the goods as I have detailed earlier, the indent provided that each case should contain 40 dozen, the price being 2 yen per dozen C.I.F., net quality, shipment March 1989. In his evidence the plaintiff said that goods shipped from Japan ordinarily take from 1 month to 11/2 months in transit. They should, therefore, arrive in Calcutta at the end of April or the early part of May 1987. It is common ground that they have never been delivered. The plaintiff agreed in his evidence that the duty and landing and other f charges were payable by him. The contract price of 2 yen per dozen at the prevailing rate of rupee exchange together with the other charges would make a total cost of Rs. 2 per dozen, being the expense of landing the goods in Calcutta.
2. Chhaganlal Bagri, who is a dealer in Calcutta in umbrella materials, stated in evidence that the market price of the suit goods in April/May 1937 was Rs. 2.8-0 to Rs. 2-10-0 per dozen. The defendants did not dispute this market price. The 25 cases of indented goods, each containing 40 dozen, makes a total of 1000 dozen, the cost which the plaintiff would have incurred had the goods been delivered amounting to Rs. 2 a dozen, and the market price being Rs. 2-8-0 to Rs. 2-10-0 per dozen, it follows that the difference was between eight annas and ten annas per dozen, making a total difference between the contract and market rates of Rs. 500 to Rs. 625 in respect of the total goods indented.
3. Jewanlal said that he is the proprietor of the defendant firm; that he ordered from Japan the plaintiffs' goods at 1.95 yen per dozen, and that these goods were never delivered to him. In 1937 he had his own agents in Japan who would have shipped the goods if they had obtained them from the manufacturers. On 6th April 1939 and 20th May 1939, he wrote to his agents in Japan complaining of non-shipment of the suit goods as well as of other goods, and in cross-examination he produced copies of these letters. It was suggested to him in cross-examination that the suit goods had in fact been received by him and supplied to other merchants. This was denied by the witness. Supplies by the defendant firm of three lots of umbrella ribs in May 1937 to other dealers were specifically put to him. He said that these three lots were of different qualities to the suit goods, the two lots being 41 gauge and one lot of Fujita qualities. The indent specifies suit goods to 'be Japanese Association quality.' Relevant documents regarding the delivery of the three other lots bear out the evidence of Jevanlal that they were of qualities different to the suit goods. There is no evidence that the defendant firm supplied merchants other than the plaintiffs with goods similar to the suit. A witness was called on behalf of the plaintiff, Krishna Behary Manna, who is employed by a firm named Ashutosh Pal and whilst it was suggested to Jevanlal that he had supplied that firm with goods similar to the suit goods, no question upon this was put to the witness above mentioned.
4. Upon the evidence before me, I hold that the defendants did not supply to other firms goods which are similar to those which the plaintiffs sought to receive from the defendant. Jevanlal was not in Japan in 1937, and he cannot, therefore, speak from any personal knowledge of what transpired in that country regarding the delivery by the manufacturers or their failure to deliver. He said that the agents which then represented him in that country returned to Calcutta at some subsequent period and made a communication or communications to him in respect of the suit goods. Those agents have not been called, and the communications cannot be given in evidence. Jevanlal added that subsequently the agents left his employment, and commenced business on their own account, and his information was that they had returned to Japan where at present they are now living. It is impossible by reason of the state of war which exists for him to obtain the attendance of those persons as, witnesses. Jevanlal added that if his agents had obtained delivery from the Japanese manufacturers they would have shipped the goods to the defendant firm who would have received them. As they were not received, it must follow, he said, that they had never been delivered. I accept his evidence that the goods were never received by the defendant firm in Calcutta. I have expressed my findings upon this aspect as counsel on behalf of the plaintiff requested that these matters should be the subject of an express issue. The defendants rely on Clause 9 of the terms and conditions contained on the back of the indent which clause is as follows:
Clause 9. - You or your agents are not to be held responsible for non-delivery of the goods by the makers or any loss or inconvenience that may originate by fulfilment of these goods. Delivery of the g above goods is subject to storms, fires, war, tempest, flood, drought, strikes, lockouts, bankruptcy, accidents and such other causes beyond human control. It is also understood that this indent is null and void in case goods are not shipped or you do not supply for cause whatsoever without assigning any reason.
5. The last paragragh in the above clause is the particular portion upon which reliance is placed and, which it is argued, exempts the defendants from liability in case of non-shipment or non-delivery whatever the reason may be. Mr. B. Roy Chowdhury on behalf of the plaintiff contended that the last paragraph should be read by the application of ejusdem generis rule of construction and by reference to the immediate context the exemption applies only when non-shipment or non-delivery is occasioned by any reason contemplated by the words 'storms, fires, war, tempest, flood, drought and other specified reasons set out in the clause.' The construction of documents, and in doing so whether the ejusdem generis rule is applicable when the word 'whatsoever' occurs, has been considered in a number of authorities. Earl of Jersey v. The Guardians of the Poor of the Neath Poor Law Union (1889) 22 Q.B.D. 555 is a case in the Court of Appeal in England. Conveyance reserved 'all mines and minerals whatsoever except stone quarries.' The question for consideration was whether the words 'all mines and minerals whatsoever' should be construed by the ejusdem generis rule with the preceding words 'all mines of coal culmiron.' Bowen L.J. at page 563 observed:
The words all mines and miners what so ever are as large as they can be, and I do not think that they can be cut down by the previous words 'coal culm and iron.'
6. Fry L.J. at pages 565 and 566 said this:
Now in the first place I think that the words 'all other mines and minerals whatsoever' are intended to mean that which they express and where you find the word 'whatsoever' following, as it does, upon certain substantives, it is often intended to repel, and in this case does effectually repel, the implication of the so-called doctrine of ejusdem generis, which, I think has often been urged for the sake of giving not the true effect to the contracts of parties but a narrower effect than they were intended to have.
7. In Larsen v. Silverster & Co. (1908) 1908 A.C. 295 the House of Lords considered the effect of a charter party by which the parties exempted each other from all liability arising from frosts, floods, strikes and any other unavoidable accidents or hindrances of what kind soever beyond their control. It was held upon the natural and true construction of the clause, the parties, by inserting the words 'of what kind soever' intended to exclude the doctrine or rule of ejusdem generis, and that the charterers were not liable for delay in loading caused by a block of other ships at the loading port. Earl of Jersey v. The Guardians of the Poor of the Neath Poor Law Union (1889) 22 Q.B.D. 555 was considered and reference was made to the observations expressed by Fry L.J. Lord Robertson at p. 297 said:
The parties may well have realised the applicability of the rule, (that is the ejusdem generis rule) to such contracts and they insert these words 'of what kind soever' simply for the purpose of excluding that rule of construction. The effect of the insertion of these words is this : it excludes the limitation which would naturally arise from this context and gives to the word 'hindrance' its full meaning.
8. The words 'whatsoever' and 'of what kind soever' must have identical meaning. In Church v. Mundy (1808) 15 Ves. 396 Lord Eldon said:
The best rule of construction is that which takes the words to comprehend a subject that falls within their usual sense unless there is something like a declaration plain to the contrary. That is, as I understand it, prima facie you are to give the words their larger meaning, unless you find something which plainly shows that they were intended to be read in a more restricted sense.
9. These observations were referred to by Lord Esher M.R. in Anderson v. Anderson (1895) 1 Q.B.749. The last two authorities were mentioned and reference was made to them with approval by Hill J. in LeMesurier v. Wajid Hoasain ('02) 29 Cal. 890 (F.B.) which is a decision of a Full Bench of five Judges of this Court in which our leaded Judge, Ghose J., alone dissented. In that case the Court considered Section 13, Legal Practitioners' Act, which section sets out in five Sub-clauses (a) to (e), the various offences for which proceeding should be taken against pleaders committing any of the offences specified. Clauses (a) to (e) specify what may be called professional offences. Clause (f) provides as follows 'any other reasonable cause.' The Court considered whether the provision in Sub-clause (f) should be read by application of the ejusdem generis rule of the provision of Sub-clauses (a) to (e). It was held that the rule did not apply. At p. 908 Hill J. observed as follows:
It, (that is ejusdem generis rule) is an expedient for ascertaining the intention of the Legislature where that is doubtful and it would seem from the tendency of modern decision that it is to be applied with caution and that prima facie general words following upon particular words are to be interpreted in their larger sense,
and the learned Judge referred to Anderson v. Anderson (1895) 1 Q.B.749 and Church v. Mundy (1808) 15 Ves. 396. In Clause (9) of the indent the last paragraph expressly provides that the indent which must be the contract is null and void if the defendants do not supply for cause whatsoever. Those words are very wide and according to the authorities to which reference has been made the inclusion of the word 'whatsoever' or words of similar meaning excludes the application of the rule of ejusdem generis when interpreting the meaning of the sentence or sentences in which the word appears. The substantive words which preceded the last paragraph in Clause (9) provide that delivery is subject to storms, fires and other specific causes and the specific causes are followed by the words 'such other causes beyond human control.' I do not propose to discuss whether strikes, lockouts and bankruptcy are causes beyond human control, but it seems to me that to the words 'beyond human control' ejusdem generis rule of construction might be applicable if their meaning was a question which arose for consideration. Nevertheless, it is to me clear that delivery under the contract is, firstly subject to the specific reasons and to causes beyond human control. The clause g then proceeds to provide that the indent is to be null and void if the defendant did not supply the goods for any cause whatsoever. In my view, the provision in the last paragraph was intended and it does intend to cover every possible reason for non-supply or non-shipment, and in the event of the defendant failing to supply the goods in Calcutta then the indent is to be null and void. Being null and void then there is no contract left which the plaintiffs can enforce. Being unable to enforce a contract, it follows that they cannot enforce any term of the contract, and consequently the defendants cannot be held responsible for loss which might be occasioned to the plaintiff through failing to obtain delivery of the goods specified in the indent. Mr. B. Roy Chowdhury argued that the indent or contract was enforcible only at the instance of the defendants if the provision of Clause (9) was to the effect as I hold it to be. Consequently, he argued that the provision of Section 2(i), Contract Act, applies. This provision is as follows:
An agreement which is enforcible by law at the option of one or more of the parties thereto but not at the option of the other or others is a voidable contract.
10. If his argument is correct it follows again that this indent is a voidable contract, and being avoided then again there is no agreement which the plaintiff can enforce in order to obtain damages for breach from the defendants. A further argument was propounded that the last paragraph in clause (9) of the indent is a separate agreement and this paragraph alone should be avoided. Learned Counsel was unable to explain what consideration there was, for any such separate agreement. I can find none, nor can I see anything which justifies or supports the contention that the last paragraph of the above clause is a separate agreement and can alone be avoided. Mr. B. Roy Ohowdhury was unable to suggest any reason other than the argument which he had propounded for the elimination of this single provision in the indent.
11. It may be unfortunate for the plaintiff that he is unable to obtain compensation for the loss which he sustained by reason of not having received the indented goods. In my view, and I hold that the indent, assuming it to be a contract, contains provisions which excuses the defendants from liability in the event of his failure to deliver the contract goods. There is nothing which prevents the parties to a contract including a term in it to the effect that the party who is obliged to deliver the goods shall not be liable for non-delivery. The parties having agreed to this it must be enforced. If I had been able to find in favour of the plaintiff I should have awarded damages to the extent of Rs. 625. The result therefore is that this suit must be dismissed with costs. The undertaking given by the defendant will remain until the period during which an appeal can be presented is ended, and, in the event of the appeal being presented, it will continue until further order. I make no order in regard to any other costs save the costs of the suit itself.