CHALISGAON SHRI LAXMI NARAYAN MILLS CO LTD Vs. ARMITLAL KALIDAS KANJI
LAWS(BOM)-1962-12-8
HIGH COURT OF BOMBAY
Decided on December 06,1962

CHALISGAON SHRI LAXMI NARAYAN MILLS CO. LTD. Appellant
VERSUS
ARMITLAL KALIDAS KANJI Respondents


Referred Judgements :-

NAZIR AHMED V. PEOPLES BANK OF N.I. LTD. [REFERRED TO]
UPPER INDIA RICE MILLS LTD VS. JAUNPUR SUGAR FACTORY LTD [REFERRED TO]
HANSRAJ GUPTA VS. DEHRA DUN-MUSSOORIE ELECTRIC TRAMWAY CO LTD [REFERRED TO]



Cited Judgements :-

KAILASH NATH AND ASSOCIATES VS. NEW DELHI MUNICIPAL COMMITTEE [LAWS(DLH)-2002-4-128] [REFERRED TO]
RELIANCE INFOCOMM LTD VS. SHEETAL REFINERIES PVT LTD [LAWS(APH)-2007-9-42] [REFERRED TO]
MUKUND LIMITED VS. HINDUSTAN PETROLEUM CORPO LTD [LAWS(BOM)-2004-12-32] [REFERRED TO]
PRITAM KAUR VS. SHER SINGH [LAWS(P&H)-1983-5-19] [REFERRED TO]
J.K. LAKSHMI CEMENT LTD VS. NAMIT PLASTIC (P) LTD [LAWS(DLH)-2009-2-160] [REFERRED TO]
MAYTAS PROPERTIES LIMITED VS. KRISHNA KILARU [LAWS(APH)-2013-12-136] [REFERRED TO]
J L MORRISON INDIA LTD VS. DY COMMISSIONER OF LABOUR APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY [LAWS(BOM)-2007-8-54] [REFERRED TO]


JUDGEMENT

- (1.)). This is an appeal against the decision of the Civil Judge, Senior Division at Jalgaon, in Special Suit No. 26 of 1955, dated 11th April 1960, decreeing in favour of the plaintiff Rs. 49,673-6-0 with proportionate costs and further interest at 4 per cent per annum.
(2.)). The short relevant facts are as follows: by a provisional contract dated 2nd July 1950 (being Exh. 52-A), the appellant-defendants' Mills agreed to sell and the respondent-plaintiff agreed to purchase 1,49,693 yards of grey calendar long cloth for expert at the ex-Mill price of Re 0-10-9 per yard for July-August 1950 delivery. The provisional contract, admittedly, was made because of export control restrictions which were in existence at all material times. In pursuance of this provisional contract, the Mills agreed to sell and the plaintiff agreed to purchase by 3 contract in writing dated 24th July 1950 (being Exh. 57-A), the above, goods at the price as mentioned above. The relevant provisions in this contract run as follows: "delivery was to be taken at Chelisgaon. Ex-Mill Godown Delivery. As per annexure 'b' Export Licence No. UMM 336 dated 18th July 1950 against our Provisional Contract for Export Cloth dated 2nd July 1950" the plaintiff repeatedly demanded delivery of the goods, in this connection, his letters of demand dated 3rd February 1951 (being Exh. 69) and 22nd May 1951 (being Exh. 77), are clear and relevant. There are other letters of demand, which are on record. In connection with the contract as agreed between, the parties, the plaintiff paid Rs. 25,000 by way of deposit in the first instance. The plaintiff also furnished to the defendants' Mills an export licence dated 15th July 1950. In August 1950 the defendants' Mills forwarded to the plaintiff a proforma invoice in connection with 43,693 yards of the contract goods and called upon the plaintiff to pay Rs. 34,205-3-0. The plaintiff deposited Rs. 24,205-3-0 in the account of the defendants' Mills and gave credit to the defendants' Mills for the sum of Rs. 10,000 out of the deposit of Rs. 25,000 that he had made and called upon the defendants' Mills to effect delivery. Despite repeated demands, the defendants' Mills failed to give delivery of the goods and the plaintiff thereupon by his Attorneys' letter dated 14th November 1950, once again made a demand for delivery. The defendants' Mills made false excuses and did not give delivery of the goods. The plaintiff from time to time extended the date for export of the goods under the export licence that was issued to him. By agreement of parties, the time for delivery of the contract goods was extended to 31st July 1951. Prior to that date, in the correspondence, the plaintiff pointed out that it was apprehended that Government would impose export duty on export of goods and intimated the defendants' Mills that he would claim the export duty which the defendants would become liable to pay having regard to their failure to effect delivery. The defendants' Mills made it clear in their replies to the plaintiff that they were not prepared to and would not bear the export duty in any event. The time for delivery was, in spite of the above refusal of the defendants' Mills to agree to pay the export duty, extended by agreement of parties to 31st July 1951, as already stated above. Even though the extended due date expired, the defendants' Mills failed to effect delivery of any of the goods. It is, however, an admitted fact that ultimately the defendants' Mills delivered and the plaintiff accepted delivery of 49,693 yards of the contract goods in June 1952. The plaintiff had arranged to pay the price due in respect of that quantity as already stated. The defendants' Mills failed to give delivery of the remaining balance of 1,00,000 yards of goods. In respect of the goods delivered the plaintiff had to pay export duty before exporting the goods in the sum of Rs. 10,649-4-0.
(3.)). After correspondence, the plaintiff filed this suit on 6th June 1955. In the schedule to the plaint the plaintiff has claimed 6 items of moneys as being due to him as follows:-- (1) for damages for non-delivery of 1,00,000 yards of the contract goods at Rs. 0-5-3 per yard and loss of profit and claim of overseas buyers, Rs. 32,812-8-0; (2) damages far late delivery of 49,696 yards of the contract goods at Re. 0-2-0 per yard; and (3) export duty amounting to Rs. 10,649-4-0. It is unnecessary to refer to the remaining items as they have not been awarded in favour of the plaintiff, who has not filed any cross-objections.


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