# Brvant, Powis, and Bryant, Limited v. La Banque De Peuple etc. (1893)

- **Citation:** [1977] 2 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 1976-12-16
- **Case number:** Civil Appeal No. 1868 of 1968
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brvant-powis-and-bryant-limited-v-la-banque-de-peuple-etc-1893-7057
- **Pages:** 9

## Headnote

'Construction of a power of attorney-Principles of ejusdem generis-Object-
.Purpose-Nature-;-Frame-Provisions and language used-Dictionary meaning
-Surrounding circumstances, whether power includes-Incidental to the ascerJained objects.
Evidence. Act !872-Sec. 92 pro~iso 2-Existenae of separate oral agreement on which wntten agreement is silent.
The appellant company sued Mr. & Mrs. Sequeira for recovery of certain
amounts under two contracts of supply of iron ore. The first contract was
signed by Ramesh holder of a-power of attorney of Sequeiras and the !eeond contract was signed by Ramesh's father as the agent of Ramesh.
Under the two
contracts Sequeiras were supposed to supply and load iron ore and were liable
to pa~ demurrage in case of delay in loading the ship and were entitled
to
receive certain despatch money if the loading was made earlier. Sequeiras filed
their counter claims. The Court did not arrive at a definite conclusion about
the quantity of ore ·supplied and left that to be determined in execution proceedings. The court found that the first contract was binding between
the
appellant and Sequeiras as it had been ratified by Sequerias and acted upon by
the appellant. The court, however, held that ,the second contract was
not
binding on Sequeiras as Ramesh had a limited authority and, therefore, he
could not constitute his father his attorney for the purposes of executing the
second agreement. The trial Court also found that the appellant had committed breaches of the contract but left the quantum of damages to be determined
in execution proceedings.
The decree of ·the trial Court was substantially confirmed in appeal by the Additional Judicial Commissioner.
HELD : 1. The Judicial Commissioner erred in concentrating on only one
dictionary meaning of the word "exploitation" used in the power of attorney
executed by Sequeiras in favour of Ramesh. The court, while interpreting a power l
of attorney, has to construe the document as awhole in the light of its purpose
and surrom1ding circumstances and the transactions meant to be governed by it.
Practice and custom have also some bearing on the nature and effect oT ffie power
of attorney.
The purpose of the powers conferred on the power of
attorney
have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties and the manner in which parties
themselvs understood the purpose of the document. The powers which are absolutely necessary and incidental to the execution of the ascertained. purposes of
~- the general powers given must be necessarily implied. Applying the-·above rules
of interpretation the court came to the conclusion that Ramesli bad power to
appoint an agent to execute the contract in question and therefore the second
contract was also binding on Sequeiras [454A-B, 456A-HJ
Brvant, Powis, and Bryant, Limited v. La Banque De Peuple etc. (1893)
A.C. 170 (ii) 177 and 179 and Jonmenjoy Coondoo v. George A Ider Watson, 10
I.LR. Cal. 901 (ti) 912 approved.
O.A.P.R.M.A.R. Adaikappa Chettiar v. Thomas Cook &
Son
(Bankers)
Ltd. AIR 1933 PC 78, distinguished.
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2. The implied powers cannot go beyond the scope of the general object
tances do not derrogate from the width of the general power initially conferred.
of the power of attorney but must necessarily be subordinated to it Specific insTo such a case ejusdem generis cannot be applied. The mode of construing a
document and the rules to be applied to extract its meaning correctly depends upon
H
not only the nature and object but also upon the frame, provisions, and language
of the documents. In cases of uncertaintv the rule embodied in proviso 2 to
section 92 of the Evidence Act which is applicable to contracts can be invoked.
452SUPREME COURT REPORTS
(1977] 2 S.C.R..
A
The ultimate decision of such a matter turns upon the practice and particular
facts of each case. [ 4580-PJ
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3. The findings arrived at by the App•ellate Court that

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451
TIMBLO IRMAOS LID., MARGO
l' ..
JORGE ANIBAL MATOS SEQUEIRA & ANR.
December 16, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
'Construction of a power of attorney-Principles of ejusdem generis-Object-
.Purpose-Nature-;-Frame-Provisions and language used-Dictionary meaning
-Surrounding circumstances, whether power includes-Incidental to the ascerJained objects.
Evidence. Act !872-Sec. 92 pro~iso 2-Existenae of separate oral agreement on which wntten agreement is silent.
The appellant company sued Mr. & Mrs. Sequeira for recovery of certain
amounts under two contracts of supply of iron ore. The first contract was
signed by Ramesh holder of a-power of attorney of Sequeiras and the !eeond contract was signed by Ramesh's father as the agent of Ramesh.
Under the two
contracts Sequeiras were supposed to supply and load iron ore and were liable
to pa~ demurrage in case of delay in loading the ship and were entitled
to
receive certain despatch money if the loading was made earlier. Sequeiras filed
their counter claims. The Court did not arrive at a definite conclusion about
the quantity of ore ·supplied and left that to be determined in execution proceedings. The court found that the first contract was binding between
the
appellant and Sequeiras as it had been ratified by Sequerias and acted upon by
the appellant. The court, however, held that ,the second contract was
not
binding on Sequeiras as Ramesh had a limited authority and, therefore, he
could not constitute his father his attorney for the purposes of executing the
second agreement. The trial Court also found that the appellant had committed breaches of the contract but left the quantum of damages to be determined
in execution proceedings.
The decree of ·the trial Court was substantially confirmed in appeal by the Additional Judicial Commissioner.
HELD : 1. The Judicial Commissioner erred in concentrating on only one
dictionary meaning of the word "exploitation" used in the power of attorney
executed by Sequeiras in favour of Ramesh. The court, while interpreting a power l
of attorney, has to construe the document as awhole in the light of its purpose
and surrom1ding circumstances and the transactions meant to be governed by it.
Practice and custom have also some bearing on the nature and effect oT ffie power
of attorney.
The purpose of the powers conferred on the power of
attorney
have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties and the manner in which parties
themselvs understood the purpose of the document. The powers which are absolutely necessary and incidental to the execution of the ascertained. purposes of
~- the general powers given must be necessarily implied. Applying the-·above rules
of interpretation the court came to the conclusion that Ramesli bad power to
appoint an agent to execute the contract in question and therefore the second
contract was also binding on Sequeiras [454A-B, 456A-HJ
Brvant, Powis, and Bryant, Limited v. La Banque De Peuple etc. (1893)
A.C. 170 (ii) 177 and 179 and Jonmenjoy Coondoo v. George A Ider Watson, 10
I.LR. Cal. 901 (ti) 912 approved.
O.A.P.R.M.A.R. Adaikappa Chettiar v. Thomas Cook &
Son
(Bankers)
Ltd. AIR 1933 PC 78, distinguished.
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2. The implied powers cannot go beyond the scope of the general object
tances do not derrogate from the width of the general power initially conferred.
of the power of attorney but must necessarily be subordinated to it Specific insTo such a case ejusdem generis cannot be applied. The mode of construing a
document and the rules to be applied to extract its meaning correctly depends upon
H
not only the nature and object but also upon the frame, provisions, and language
of the documents. In cases of uncertaintv the rule embodied in proviso 2 to
section 92 of the Evidence Act which is applicable to contracts can be invoked.
452SUPREME COURT REPORTS
(1977] 2 S.C.R..
A
The ultimate decision of such a matter turns upon the practice and particular
facts of each case. [ 4580-PJ
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3. The findings arrived at by the App•ellate Court that Sequeiras were prevented from performing their part of the contract, owing to the failure of the
appellant to provide either sufficient lighting or enough winches to enable due
performance of the contract, is unexceptionable. The Judicial Commissioner
rightly concluded that the company had not discharged its own part of the contract so that it could not claim demurrage or damages.
(458-G-HJ
The court partly allowed the appeal and remanded the matter back to the
trial court for determining the liabilities of the parties in the light of
the
judgment. [459E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1868 of 1968.
Appeal from the Jud~~ent and Decree dated the 21st FebrualJ'. 19~8:
of the Judicial Comn11ss10ner's Court at Goa, Daman and Dm
m
_ Appeal No. 3370 of 1964.
S. V. Gupte, Naunit Lal and (Miss) Lalita Kohli for the Appellant.
V. C. Mahajan and R. N. Sachthey for Respondents.
The Judgment of the Court was delivered by
BEG, J.-The Plaintiff-appellant Timblo Irmaos Ltd., (hereinafter
referred to as 'the Company'.) had sued Jorge Anibal Matos Sequeira
and his wife (hereinafter referred to as Sequeiras') for recovery of
Rs. 2,82,141/- claimed under a contract of 23rd January, 1954, and
a sum of Rs. 1,14,700/-, claimed under another contract of 4th Febru--
ary, 1954. The Sequeiras counter-claimed Rs. 3 lakhs as price of
8000 tons of iron ore supplied to the Company; and pleaded that a
sum of Rs. 1,13,000/-, advanced by the Company to the Sequeiras
was to be adjusted after final determination of the amount. dl\e as pric1e
of goods sold and supplied.
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The Sequeiras are holders of a mining concession.
They it was
alleged, had_ entered into the two contracts, one of 23rd January, 1954,
through their attorney, Ramesh Jethalal Thakker (hereinafter referred
to as Thakker Junior), for supplying 8000 tons of iron ore, altered in
some respects, by a l~te~ agreement, and the other of 4th February,
1954, alleged to be bmdmg on the Sequeiras although entered into
through Jethafal C. Thakker (hereinafter referred to
as 'Thakkcr
Senior'), the father of R. J. Thakker.
The most important clause in
the contract of 23rd January, 1954, was that iron ore should
be
loaded in a ship 'Mary K' at Marmagoa, and that the loading must
be done at the rate of 500 tons per "weather working day" of 24
hours.
Under the contract, the rate of demurrage for not loading the
ship in time was to be paid at the rate ~f US $ 800.00 per day an
pro rata for each fraction of a day.
The buyer company was to pay
what was called "despatch money" at half the rate of demurrage for
time saved in loading.
The payment was to be in the Portuguese
Indian rupees at the exchange rate of Rs. 4.76 per US $.
The buyers
had also to make an initial payment of Rs.
55,000/-
as
soon
as delivery by loading began.
Th~ buyers
were
also
to
establish a Letter of Credit, before 27th January, 1954, in favour of
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TIMBLO IRMAOS V. J. A. M. 'SEQUEI~ (Beg, !.)
453
·the sellers, the Sequeiras, for the full value of the iron ore after deducting Rs. 55,000/- paid initially, and Rs. 1/4 per gross ton awaiting final
settlement by presentation within ten days, at the bank named in the
agreement, by presentation of the certificate of weight issued by the
Master of the vessel.
Certificates of the quality and specifications and
of .final weighment were to be sent by the buyers after the vessel's
arnval at the port of discharge.
·
The second agreement of 4th February, 1954, relates to loading of
• 6000 to 9000 tons of iron ore of given quality and specifications in the
. ship 'Mary K' at the minimum rate of 500 tons per day commencing
delivery within 24 hours of the buyer notifying the requirements to the
seller. It also contained other stipulations similar to those of the first
one.
The important point to note about this agreement is that it is
signed by Jethalal C. Thakker as the attorney of his
son Ramesh
Jethalal Thakker.
·
It appears that the clause relating to initial payment was changed
so that the sellers, Sequeira<, were paid Rs. 1,13,000/- between 25th
January, 1954, and 22nd July, 1954. It also appears that there was
delay in delivery for which the plaintiff claimed· demurrage.
There
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were also complaints about alleged departure by the seller from the
o.
specifications agreed upon.
The Sequeiras, the sellers, had it seems,
also applied for an interim injunction so that the ship's loading capacity
may be checked.
Under orders of the Court, an inspection of the ship
was made and. a report was sumbitted by an expert on 15th March,
1954, after the determination of its loading capacity so that the ship
could finally sail only on 16th March, 1954.
·
The Margao Comarca Court, where the claim and the
counter
claims were filed, held that the seller's attorney, Thakker Junior, who
had received Rs. 1,13,000/-, which had to be deducted from the price
of the iron ore supplied, was not duly authorised by the power of
attorney executed by the Seque1ras to sell.
The Court did not find
enough material to reach a definite conclusion about the quantity of
ore supplied and left that to be determined in execution proceedings ..
It, however, held the first contract to be binding between the parties
as it had been ratified by the seller and acted upon by the buyer. But,
the second contract was held to be not binding upon the Sequeiras as
Thakker (Junior) was found to have been given only a limited authority so that he could not constitute his father his attorney for the purpose of executing the second agreement.
The Trial Court accep'.ed the
basis of the counter-claim of the Sequeiras and found that the company
had ccimmitted breaches of contract but left the quantum of damages
to be determined in execution proceedings.
The decree of the TriaL Court was substantially affirmed in appeal.
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Nevertheless, the Additional Judicial Commissioner Goa, Daman &
Diu had modified the decree, the appellant company has come up to
this'conrt in appeal as of right.
Two questions arise for determination
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before us.
The first is whether the second contract of 5th February,
1954, was duly covered by the authority conferred by the Sequeiras
upon their attorney, Ramesh Jethalal Thakker, or not.
The second
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SllPR!ME COURT REPORTS
[1977] 2 S.C.R.
relates to the amounf of demurrage, if any, payable by the Sequeiras,
the defendants-respondents, to the plaintiff-appellant.
On the first question, the Judicial Commissioner concentrated on
the dictionary meaning of the word "exploitation" used in the power
of attorney executed by the Sequeiras in favour of Thackker Junior.
The learned Judicial Commissioner took the meaning of the word from
Chambers' 20th Century Dictionary which gave : "the act of successfully applying industry to any job, as the working of mines, etc; the
act of using for selfish purposes".
The learned Judicial Commissioner
also referred to the inability of learned Counsel for the company to
cite a wider meaning from the Oxford Dictionary which the learn~d
Counsel had carried with him to the Court.
The Judicial Commi55ioner then ruled :
"Hence, I see no escape from the conclusion that on the
basis of the power of attorney given by Sequeira to Ramesh
the latter could not have entered into any agreement for sale
of ore extracted from the mine belonging to Sequeira on his
behalf.
Consequently, Sequeira is not bound by the agreement dated 4th of February, 1954".
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As already mentioned by us, the first contract of 23rd January,
1954, was held to be binding despite this finding because the parties
had acted upon it and dealt with each other on the basis that such a
contract existed.
We think that this background can be taken into
account as indicating what the parties themselves understood about the
manner in which the words u~ed in the power of attorney dated 17th
January, 1953, executed by Sequeiras in favour of Thackker Junior
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. was related to the actual facts or dealings between or by the parties.
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Moreover, the power of attorney had to be read as a whole in the
light of the purpose for which it was meant.
As it is not lengthy, we
reproduce its operative part. It reads :
"Jorge Anibal de Matos Sequeira, married, major of age
businessman, landlord, residing in Pangim, whose
identify
was warranted by witnesses, said in the presence of the same
witnesses that by the present letter of attorney he appoints
and constitutes his attorney Mr. Ramesh Jethalal Bachelor
major of age, businessman, from Bombay, residlng at pre~
sent in Bicholim and conters on him the power to represent
him, to make applications, allegations, and to defend his
righ~ in. any public offices or Banks, to draw up and sign
applications, papers, documents and correspondence; specially those tending to acquire petrol, gunpowdei:. train, transport vehicles, machines, furniture ( alfaias) and other instru-·
ments used in mining industry, apply for and obtain licences
for importation and exporation, to give import and export
orders, even temporary, sign applications, suits and
only
other things necessary, attach and withdraw documents make
declaration, even under oath and in general
any
powers
necessary for the exploitation of the mine named Pale DonE!or
situate at Pale for the concession of which the said Siqueira
applied and which he is going to obtain to impugn, object,
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TiMBLE IRMAOS ·v. J,' A. M. SEQUEIRA (Beg, J.)
455
protect and prefer appeals upto the higher Courts, notify
and accept notifications and summons in terms of. Sec. 35
and 37 of the C.P.C., to use all judicial powers without any
limitation, to subrogate these powers to some one else. This
was said
and contracted.
The witnesses
were
Bablo
Panduronga Catcar ad Xec Adam Xecoli, both married
landlords, major of age from Bicholim who sign below".
Apparently, practice and custom have some bearing
on
these
transactions in Goa.
It is this reason that, although the power of
Attorney was executed by Mr. Sequeira, yet, his wife was impleaded,
according to the practice in Goa, and no objection was raised either
on the ground that she was wrongly impleaded or that the power of
attorney was vitiated on the ground that it was executed only by her
husband.
In any case, the subsequent agreement of 23rd January,
1954, which was held to have been acted upon, and the similar agreement of 5th February, 1954, of which also the defendants were bound
to have and did have full knowledge, were never
repudiated · by
Sequeiras, before the filing of the suit before us.
Indeed, the agreement of 5th February, 1954, appears to be a sequal to the first agreement of 23rd January, 1954.
We do not think that the two could be
really separated in the way in which the Judicial Commissioner thought
that th~y could be by holding that the one was acted upon whereas
the other was not.
In any case, the second was the result of and a
part of the same series of dealings between the parties.
We do not however propose to rest our findings on the ground
that the parties are bound by the second agreement due to some kind
of estoppel.
We think that the terms of the power of attorney also
justify the meaning which the parties themselves appear to have given
to this power of attorney that is to say, a power to conduct business
on behalf of the Sequeiras in such a way as to include sales on behalf
of Sequeiras.
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We think that perhaps the most important factor in interpreting
a power of attorney is the purpose for which it is executed.
It is ·
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evident that the purpose for which it is executed must appear primarily
from the terms of the power of attorney itself, and, it is only if there
is an unresolved problem left by the language of the document, that
we need consider the manner in which the words used could be related
to the facts and circumstances of the case or the nature or course of
dealings.
We think that the rule of construction embodied in proviso
6 to Section 92 of the Evidence Act, which enables the Court
to
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examine the facts and surrounding circumstances to which the 'language of the document may be related, is applicable here, because we
think that the words of the document, taken by themselves, are not so
clear in their meanings as the learned Judicial Commissioner thought
they were.
·
,
As we have already mentioned, the learned Judicial Commissioner
chose to concentrate on the single word "exploitation" tom out of its
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context.
The word "exploitation" taken by itself, could have .been
used to describe and .confet' only such general powers as
may be
t3-tS46 scr.n6
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SUPRBMB COURT Ri!PORTS
[1977] 2 S.C.R,
needed for the working or ex;p1oitation of the mine. But, the earlier
parts of the document show that . the main purpose of the document
was to give power .to Thak:ker Junior to represent Mr. Sequeira not
only in litigation and financial affairs but "to draw up and sign" various
"documents and correspondence".
It is true that the power to sell
is not specifically mentioned in the document.1 The nature of
the
documents and the correspondence which Thakker Junior could sign
on behalf of Mr. Sequeira is also not clarified. Instances of particular
kinds of business to be transacted by the agent in the course of "exploitation" of the mine are given, such as "acquisition of petrol,
gun
powder, train, transport vehicles, machines, furnitures and other instruments used in mining industry".
It is difficult to see how any documents even for these special purposes could be signed without a power
to buy and sell on behalf of the Sequeiras.
Furthermore, the power
expressly includes giving of "import and export orders".
~ow, the
conduct of a business so as to give necessary orders for purposes of
exporting and importing must, we think, by a necessary implication,
include the power to sell what is excavated from the mine to
be
exploited.
Otherwise, how could iron ore be exported ? It is a well
known rule of construction that powers necessary and incidental to
the effective exercise of the powers conferred will be implied.
The learned Judicial Commissioner had, in our opinion, overlooked several well known rules of interpretation : firstly, that, a word
used in a document has to be interpreted as a part of or !n the context
of the whole; secondly, that, the purpose of the powers conferred by
the power of attorney have to be ascertained 'having regard to the need
which gave rise to the execution of the document, the practice of the
parties, and the manner in which the parties themselves understood
the purpose of the document; and thirdly, that, powers which
are
absolutely necessary and incidental to the execution of the asce.rtained
objects of the general powers given must be necessarily implied.
Applying the rules of interpretation of the document indicated
above, it seems to us that the true meaning of the document will be
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seen to be that which the parties themselves understood it to be, that
·is to say:, one which included the power to sell iron ore.
Once we
reach this conclusion it is not difficult to see that Thakker Senior was · ~
duly authorised to execute and sign on behalf of Thakker Junior because this is covered by the express words of the power of attorney :
"to subrogate these powers to someone else".
The mode of construction which we have indicated seems to us to be borne out by the
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very authorities cited on behalf of tho defendants-respondents to which
we will now advert.
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Learned Counsel for the respondents seemed to place much reliance
on Bryant, Powis, and Bryant, Limited v. La Bangue De Peuple
~tc.,(') where it was observed (at p. 177) :
"Nor was it disputed that powers of attorney are to be
construed strictly__:that is to say, that where an act purporting to be done under a power of attorney is challenged as
being in excess of the authority conferred by the power, it
(1) (1893) A.<;:. 170 at 177 & 179.
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TIMBU. IRMAOS V. J. 'A. M. SEQUEIRA (Beg, J.)
457
,.
is necessary to shew that, on a fair ·construction of the whole
instrument, the authority in question is to be found within
the four corners of the instrument either in express terms or
by riecessar)! implication'".
lt wa.s also held. there (at p. 179) :
• 'To put it shortly, the power of attorney
authorized
l)a:vies to enter into contracts or engagements for three specified purposes: (1) the purchase or sale of goods; (2) the
' chartering of vessels; and, ( 3) the employment of agents and
servants; and, as incidental thereto, or consequential thereon,
to do certain specified acts and other acts of the same kind
as those specified. If the instrument be read fairly, it does
not; in their Lordships' opinion, authorize the attorney to
· . borrow money on behalf of the company, or to bino the
,. · company by a contract of loan. It appears fo their Lordships that the words quoted in the judgment of the Court of
Queen's Bench are to be read in connection with the intro-
,, . . <luetory words of the sentence to wliich they belong, 'for all
or ·a1,1y of the purposes aforesaid'.· So read, the words in
, ;
question do not confer upon the agent powers at large, but
only such powers as may be necessary in addition to those
previously specified, to carry into effect the declared purposes
of the power of attorney".
' We think that the passage quoted a~mye correctly lay down the
law which is applicable in this country as well and which we are applying here .. · The method of construing a power of attorney indicated
above fully supports our view that the docμment we have to construe
.confers a power to sell iron. ore on behalf of the Sequeiras.
· · We were then referred to Jonmenjoy Coondoo v. George Alder
Watson,(') where it was held that a powe~ of attorney which expressly confererd the power upon the agent to "negotiate, make sale, dispose
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off, assign and transfer or cause to be assigned and transferred at his
discretion" Govt. notes, deposited with him for safe custody, did not
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include the power to lend or pledge.
In this case, the ratio-decidendi ·
seemed to be that lending or pledging would defeat the purpose of the
power of attorney which expressly conferred the power to sell. Obviously, if what was· to be sold was _loaned or pledged, it could not be
easily sold.
As we have noticed abov<e,
the powers deemed to be
conferred by ·necessary implication must serve the purpose of
the
document and not frustrate it.
The Privy Council observed (at p.
912) :
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"The appellant's Counsel relied mainly upon the word
negotiate, and also upon· 'disposed of'. Iii order to see what
was intended by these words, they must be looked at in connec_tion with the context, as well as with the general object of
the power.
This appears to their Lordships to have been to
sell or purchase for Watson Government promissory notes ·
and other securities, not to borrow or lend money
upon
(1) IO l.L.R. Cal. 901, 912.
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them. If the word 'negotiate' had stood alone, its meaning
might have been doubtful, though, when applied to a bill of
exchange or ordinary promissory note, it would probably be
generally understood to mean to sell or discount, and not to
pledge it. Here it does not stand alone, and, looking at the
words with which it is coupled, their Lordships are of opinion
that it cannot have the effect which the appellant gives to it,
and, for the same reason, 'dispose of' cannot have that
effect".
We think that this case also bears out the mode of construction adopted by us.
We were then referred to O.A.P.R.M.A.R. Adaikappa Chettiar
v. Thomas Cook & Son (Bankers) Ltd.,(') where the well known
principle of ejusdem generis was applied to hold that general words
following words conferring specifically enumerated powers "cannot be
construed so as to enlarge the restricted power there mentioned".
In this case, the purpose of the general power· was subordinated to the
specific powers given which determined the object of the power of
attorney.
There is no deviation in this case fro!Il the general rules
of construction set out above by us.
We have indicated above that
implied powers cannot go beyond the scope of the general object of
the power but must necessarily be subordinated to it.
In fact, in a
case like the one before us, where a general power of representation in
various business transactions is mentfoned first and then specific instances of it are given, the converse rule, which is often specifically
stated in statutory provisions (the rules of construction of statutes and
documents being largely common), applies.
That rule is that specific instances do not derrogate from the width of the general power
initially conferred.
To such a case the ejusdem generis rule cannot
be applied.
The mode of construing a document and the rules to be
applied to extract its meaning correctly depend upon not only upon
the nature and object but also upon the frame, provisions, and language of the document. In cases of uncertainty, the rule embodied in
proviso 2 to Section 92 of the Evidence Act, which is applicable to
contracts, can be invoked.
Thus, the ultimate decision, on such
a
matter, turns upon the particular and peculiar facts of each case.
Coming now to the second question, we find that the findings of
fact recorded by the Judicial Commissioner are unexceptionable. Firstly,
it was found that, although, under the contract, the defendants-respondents could load iron ore at any time during 24 hours, which included
the night, yet, the defendants were prevented from doing so owing to
the failure of the plaintiff to provide either sufficient lighting or enough
winches to enable due P.,erforrnance of the contract. Secondly, it was
admitted that the appellant never opened a Letter of Credit with the
named bank by 27 January, 1954, as promised by it.
Thirdly, the
delay in loading was held to be due to the fault of the company. The
Judicial Commissioner rightly concluded that the company had not
discharged its own part of the contract so that it could not claim
(1) A.I.R. 1933 PC 78.
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TIMBLE IRMAOS V. J. A. M. SEQUEIRA (Beg, J.)
459
demurrage or damages.
Indeed, it wa's found that the company did
A
not have to pay any demurrage at all to· the shippers for
delayed
departure.
Learned Counsel for the appellant relied strongly on the following
terms in the contract of 23rd January, 1954 : ·
"Demurrage (if any) in loading payable by Seller at the
B
rate of US $ 800.00 per running day fraction of day pro
rata. Buyers to pay despatch money at half the demurrage
rate for all time saved in loading.
Payment either way in
Portuguese Indian rupee currency at the rate of exchange
of Rs. 4161- for US $ 100.00."
The contention was that this created an absolute liability to pay for
delay in loading irrespective of whether the company had to pay the
shippers any demurrage.
It was urged that the liability was upon the
seller irrespective of whether such payment had to be made to the
shipping company or not.. We think that the demurrage could not be
claimed when the delay in loading was due to the defauft of the respondents themselves.
It is· apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper
facilities for loading.
When the appellant itself
had
committed
breaches of its obligations, it is difficult to see how the respondents
could be made responsible for the delay in 'loading.
We think that
the Judicial Commissioner had rightly disallowed this part of
the
claim.
In the result, we partly allow this appeal, set aside the finding of
the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954. We hold that this document embodied the terms of an agreement which was legally binding. on both sides
before us.
The case will now go back to the Trial Court for determination of the liabilities of the parties to each otffer for
alleged
breaches of contract except to the extent to which the findings negative
the claim to demurrage and the admitted payment of Rs. 1,13,000/-
by the appellant to the defendants which will have to be taken into
account.
The parties will bear their own costs.
P.H.P.
Appeal allowed in part.
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