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Judgment
Venkatasubha Rao, J.—This is a Reference under the Presidency Small Cause Courts Act made on a difference of opinion between the
learned Chief Judge on the one hand and the 2nd and 3rd Judges on the other.
The suit is for the balance due for the price of piece-goods sold. The plaintiffs are a firm of traders carrying on business at Coral Merchant
Street, George Town, Madras and the defendants are also traders carrying on business in another portion of the City, Godown Street. The
defendants have raised the plea that the suit is barred by limitation. The decision of this issue turns upon the question whether the sale was a credit
sale as contended for by the plaintiffs or it was a cash transaction as alleged by the defendants.
The contract is not in writing and the parties have agreed that according to the usage of the trade, certain terms are implied in contracts of this
description and that those terms are:
(1) that the price charged is that payable on the expiry of 70 days from the date of sale;
(2) that after that period the seller is entitled to charge interest on the price at 9 per cent, per annum; and
(3) that if the purchaser pays the price or any part of it within the said 70 days, he is entitled to a discount at 12 per cent, per annum oh the amount
actually paid for the unexpired portion of the 70 days from the date of payment.
So far there is no dispute. But the plaintiffs contend that the price is payable only on the expiry of the period mentioned, in other words, that the
sale is for credit. The defendants urge that the price becomes payable on the date of the sale, in other words,'' that it is a cash transaction.
The learned Chief Judge (Trial Judge) on the evidence adduced as well as on his interpretation of Exhibit A which is the bill sent by the plaintiffs
to the defendants, came to the conclusion that the sale was for credit and applied Article 53 of the Limitation Act. The witness examined for the
plaintiff deposes: ""The agreement was that the defendant should have a credit period."" Within that period of ""thavani"" no demand could be made,
likewise, a defence witness also says; ""It is intended that no suit can be instituted until the period"" of thavani expires. I am not aware of any such
suit being brought within the thavani period."" This witness, however, prevaricates and tries to go back upon the statement he has made. Whatever
this may be, the Trial"" Judge is entitled to find the terms of the contract on the evidence and his finding on a question of fact is final.
But the Judge bases his decision to some extent also on the terms of the bill to which'' I have made reference. After the sale, the sellers sent Ex.
A to the purchasers and at the top of it the following words appear ""Debit to M. Somasundaram Chettyand Co., Godown Street (defendant)
interest at 3/4 per cent, per mensem after 60 days thavani."" By common consent, CO days means 70 days and incidentally I my take this
opportunity to observe that it reflects little credit on those engaged in piece-goods trade at Madras who glibly say that when they note, down 60
days, they always mean 70 days. This habit has grown through several decades into a vice and the sooner it is given up the better.
Now returning to the bill, the learned Judges of the Small Cause Court have put to themselves the question. What is the meaning of this word
thavani? The Trial Judge has held that it means ""credit period."" If he is correct, the sale is clearly a credit sale and the suit is within time. But the
other two Judges are of the opinion that the word thavani means ""a fixed period or a stipulated space of time."" According to them, the period is
mentioned in the bill merely for the purpose of the calculation of interest. In their view, the object of fixing a period is to provide that interest shall
be calculated, only on the expiry of this stipulated space of time. Their explanation for the term relating to discount is, that it has the effect of
inducing the purchaser to promptly pay up the amount. I think it is necessary to extract the following passage from the judgment of the learned
Chief Judge: ""I need hardly say that the particular meaning to be attached to a term of a contract is one which has to be decided with reference to
the facts of each case and upon the evidence in this case which I have considered carefully. I incline to the view that the thavani period in this case
was the period of credit given to the purchaser."" The learned Judge was certainly entitled to find on the evidence that the word thavani was used by
the parties to the suit in the sense of a "" credit period."" If it has obtained a technical meaning and is used in that sense in a particular context, the
document must be interpreted in the light of that meaning. That the word thavani has acquired various meanings in various lines of business, admits
of no doubt. It is sufficient to refer for this purpose to Ponnuswami Chetty v. The Vellore Commercial Bank Ltd. 56 Ind. Cas. 384 : 38 M.L.J. 70
: (1920) M.W.N. 75 : 27 M.L.T. 81, Narayanan Chatty v Supiah Chetty 58 Ind. Cas. 639, Muthiah Chettiar v. Ramanathan Chettiar 43 Ind.
Cas. 972 : (1918) M.W.N. 242 and Ramanathan Chetty v. Subramanian Chetty 28 Ind. Cas. 988: 17 M.L.T. 266. Oral evidence may be given
u/s 98 of the Indian Evidence Act to show the meaning of technical, local and provincial expressions. Under this section, evidence of the meaning
which words bear in mercantile transactions can be given. The dictionary meaning or the word thavani is said to be ""a term or a fixed term"" but if
the word has obtained a technical meaning in a particular trade or when used in a particular context, the Courts when construing that word are
bound to take into, account that meaning. The learned Chief Judge says that on the evidence he finds that the word thavani is equivalent to a credit
period, and speaking for myself with experience of such transactions extending over two decades, I am glad to find that the effect of the evidence
as stated by the Chief Judge, confirms what I have always believed to be, the meaning of this word occurring in this context.
The 2nd and 3rd Judges were influenced by the observations of Mr. Justice Courts-Trotter as he then was in a suit decided on the Original Side
of the High Court. He said in that judgment: ""All that thavani means so far as I can gather from the expert witnesses and from the dictionary that
was produced is a fixed period or a stipulated space of time; so that the word credit which appeared to me to be almost fatal to the defendants''
case is not there at all."" The learned Judge was not in that case called on to find what the technical meaning of the word thavani was and for that
purpose no witnesses were examined. He relied upon the dictionary meaning of the word and the testimony of an interpreter of the Court who, of
course, gave a meaning to the word which he took from the dictionary. The case is not an authority in regard to the sense in which that word is
used in the piece-goods trade as carried on in Godown Street. It is clear from the observations of all the three Judges that by usage certain terms
are implied in transactions in piece-goods among Godown Street dealers and the learned 2nd Judge also adds that in Coral Merchant Street,
business is now done in conformity with the Godown Street usage. In Rayner v. Rayner (1904) 1 Ch. 176, C.A. Vaughan Williams, L.J., says that
the meaning of a word is relative to the circumstances and occasions and date on which the word is used and that it is the duty of the Judge to
inform his mind not only by reference to dictionaries of good reputation but also by evidence of the meaning ordinarily given to it amongst those
who use it. In Holt and Co. v. Collyer (1881) 16 Ch. D. 718Fry, J. observes: "" That before evidence can be given of the secondary meaning of a
word the Court must be satis lied from the instrument itself or from the circumstances of the case that the wore ought to be construed not in its
popular o: primary signification but according to its secondary intention."" In that case a person who had entered into a covenant not to us a house
as a beer-house, opened a grocer''s shop there at which he carried on the sah of beer to be drunk off the premises, as an ciliary to his grocer''s
business. Evidence to show that the word ''beer house'' was understood in the trade in a technical sens was rejected. The reason is stated by Fry
J., the lease was an ordinary lease by a landlord, who was not shown to be a brewer 01 connected with the brewing trade, to a person who was
not, in any way engaged in the business of selling beer. In these circumstances if there be a technical signification to that word in the brewing trade
there was no reason to suppose that the parties who were not connected with that trade so used it and on that ground the evidence offered was
rejected. The present case is very different. The word thavani has been used by traders in piece-goods in a document relating to that trade and
there can be no doubt that evidence can be given to show that the word is used in a particular sense. This again is a question of fact and the
learned Trial Judge is entitled to find the meaning of the word as used in the document.
Supposing the word as used in the document really means a fixed period or a stipulated space of time, the defendants can found no argument on
that. If that is the meaning of the word, the sale may be either a cash or a credit sale, and even assuming for a moment that Ex. A is the contract,
which it is not, oral evidence can be given under proviso 5 of Section 92 to show that by the usage of the trade an incident not expressly mentioned
in the contract (here that the sale is on credit) is a term of that contract. The learned Trial Judge is even then justified in finding that the sale is a
credit sale. I answer the question submitted to us by the Small Cause Court by saying that the view taken by the learned Trial Judge is right.
Jackson, J.
This Reference has been made by three Judges of the Presidency Small Cause Court u/s 69 of the Act.
They state that the question of law on which they differ is whether the cause of action in a certain suit dates from a sale (in which, case the suit
would admittedly be time-barred) or whether it dates from the expiry of 70 days allowed for credit after the date of the sale (in which case the suit
would not be time-barred). This is a question of fact rather than of law; and the Reference has really been made because the learned Judges have
differed in construing a document which in their opinion affects the merits of the case, This document Ex. A is correctly described by them as being
a bill, which contains a billhead to this effect. ""Interest at 3/4 percent, per mensem after 60 days period (thavani)."" The mere construction of this bill
presents no difficulty. Its heading is an announcement to the effect that after 60 days interest, will be charged. But at the end of their Reference the
learned Judges speak of this bill-heading as if it were the suit contract. The. J. bill is not a contract and its wording does not import a period of
credit for the payment of the price. ""Thavani"" is a colourless expression meaning only ""period."" In it self it has no more significance than the latin
word ""per."" It does not in itself convey the idea of credit. I agree with my learned brother that any particular sense in which the word may have
been used must be proved aliende. I would answer the Reference of the Small Cause Court in the above terms.