- (1.)The appellant is the plaintiff and his suit was for the recovery of a sum of Rs. 2,100 from the defendant from whom he agreed to purchase some quantity of cloth pieces for a sum of Rs. 1,449-12-3 towards which the plaintiff paid an advance of Rs. 50. The goods were despatched from Bombay to Bellary in a truck belonging to a public carrier on March 7, 1957, but the balance of the price payable by the plaintiff was paid only in May through a bank draft. Until then, there was a controversy with respect to a small sum of money which represented bank charges, the payment of which was insisted upon by the defendant but was refused by the plaintiff. Eventually the plaintiff paid that amount only in may nearly two months after the goods had been despatched through the public carrier. The defendant then on May 20, 1957 forwarded the necessary receipt on the presentation of which the plaintiff could collect the goods from the carrier, but the plaintiff could not obtain delivery of those goods, which by then, were missing. This suit was instituted in that situation for the recovery of the price paid by the plaintiff to the defendant.
(2.)The defendant resisted the suit on the ground that under the terms of the contract between the parties, the goods were at the plaintiff's risk after their despatch by the seller and that clause reads: "If the goods are to be booked to up-country, the same will be done at the buyer's risk and no claim shall be entertained for any loss or damage." It is not disputed that the despatch of the goods from Bombay to Bellary fell within this clause, and that if nothing else could be said about it, once those goods are despatched by the defendant from Bombay to the plaintiff, the defendant would be under no liablity to pay any compensation for their loss or destruction. That, was, the view taken by the two Courts below which dismissed the plaintiff's suit.
(3.)But in this appeal preferred by the plaintiff, Mr. Tarakaram advanced the contention that the courts below depended upon Clause 7 in isolation, without considering the effect of Clause 8, under which, according to Mr. Tarakaram, the goods continued to be at the seller's risk until the full price payable by the plaintiff was paid. That clause reads: "Until the full payment of this bill is received the goods covered by this bill shall be the seller's property".
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