Decided on July 05,1973


Referred Judgements :-



S.H.SHETH - (1.)The defendant-firm had agreed in 1964 to purchase from the plaintiff-Company 120 barrels of ground-nut oil at the rate of Rs. 22.8 per 10 Kilograms on what is called Ready Indent basis. This oral transaction was subject to confirmation by the defendant-firm and it was also subject to payment by the defendant-firm to the plaintiff-Company of a sum of Rs. 4000/as advance money. The plaintiff-Company had to supply empty barrels for the purpose at the rate of Rs. 34/per barrel. The defendant-firm has been carrying on business at Aligarh. The goods therefore had to be transported from Ahmedabad to Aligarh by railway at the cost of the purchaser. The defendant-firm was required to pay the price of the goods through the plaintiffs bankers. The defendant paid Rs. 4000/to the plaintiff as advance money by cheque drawn on the Punjab National Bank Jamnagar. On 20th December 1964 the plaintiff applied to the Railway Administration for wagons for dispatching the goods to Aligarh. On account of the difficulties which the Railway Administration had been facing in the matter of supplying wagons it could supply them to the plaintiff only on 31st January 1965. The plaintiff dispatched 140 barrels of ground-nut oil by two railway wagons from Ahmedabad to Aligarh under two separate railway receipts. By its telegram dated 30th January 1965 the defendant terminated the contract. The plaintiff received the telegram on 1st February 1965. At that time the prices of the ground-nut oil were falling. The plaintiff on having received on 1st February 1965 the aforesaid telegram from the defendant intimated to the defendant that the goods had already been dispatched on 31st January 1965. The plaintiff had obtained two separate railway receipts in respect of the goods which it had dispatched to the defendant. It had prepared two separate bills both dated 3rd February 1965. One bill was for Rs. 30 532.68 p. and another was for Rs. 31 744.44 p. The goods reached Aligarh in due course of time. The defendant did not retire the documents did not honour the Hundis which the plaintiff had drawn upon it and did not take delivery of the goods. Therefore the plaintiff sold away the goods at the defendants cost and risk in Aligarh market and realized Rs. 46 766.02 p. According to the plaintiff it suffered a loss of Rs. 11 672.53 p. The particulars of this amount have been stated in details in paragraph 5 of the plaint. The defendant refused to pay to the plaintiff the loss suffered by it even though the plaintiff had called upon the defendant to do so. The plaintiff therefore filed the present suit to recover Rs. 11672.53 p. on account of loss suffered by it in respect of this transaction.
(2.)The defendant in its Written Statement Ex. 11 denied the plaintiffs allegations. It contended that Bhagwandas who was the agent of both the parties had informed the defendant that a bargain in respect of 120 barrels of ground-nut oil was struck with the plaintiff and that the price which was fixed was Rs. 22.80 per 10 Kilograms. The terms of the contract were that the transaction was Builty cut Ready Indent and that the defendant had to pay RS. 4000/in advance to the plaintiff. The defendant sent to Bhagwandas on 29th December 1964 the aforesaid sum of Rs. 4000.00. The defendant has admitted in its Written Statement that it had not retired the documents relating to the delivery of the goods to it at Aligarh and had dishonoured the Hundis drawn by the plaintiff. However it seeks to justify this action of its on the ground that there was no completed contract between the plaintiff and the defendant and that it was the plaintiff which had committed breach of the contract. On 26 December 1964 the defendant had sent the confirmation of the transaction to the plaintiff with a formal contract for execution by the plaintiff. The plaintiff did not execute the documents because it was marking the trend of prices of the goods in question. According to the defendant the plaintiff had therefore been avoiding the execution of the contract because prices had been rising. It was under those circumstances that the defendant cancelled the contract on 30th January 1965 and demanded back from the plaintiff the amount of Rs. 4000/paid as and by way of advance to the plaintiff. On 2nd February 1965 the defendant was informed by one Mantri that the goods had already been dispatched. On 3rd February 1965 the defendant sent a reply to the plaintiff by which it informed the plaintiff that the transaction in question had already been cancelled by it and demanded repayment of the advance money paid by it to the plaintiff. On 3 February 1965 the defendant received a telegram from Nut Jali intimating to the defendant that the goods in question had already been dispatched. On 5th February 1965 the defendant sent a further reply to the plaintiff stating that there had been no subsisting transaction between them and that therefore the documents in relation to the transaction had not been honoured. It has been stated by the defendant further that since the plaintiff did not repay to it the amount of Rs. 4000/paid to it as advance money it had filed a suit for its recovery in the Aligarh Civil Court. According to the defendant the plaintiff was guilty of breach of contract and had no right to file the present suit.
(3.)The learned Trial Judge raised the issues tried the suit and dismissed it.

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