Decided on October 03,1955

Firm Murilidhar Chironjilal And Anr. Respondents


Chaturvedi, J. - (1.) THIS is Plaintiff's first appeal against the decree and judgment dated 30 -6 -1952, passed by the District Judge Indore, in C.O. Suit No. 47 of 1949. Plaintiff claimed from the two Defendants Rs. 35733/14/2 on account of damages for breach of contract. The facts are that on 29 -6 -1947 Defendant No. 2 Babulal entered into a contract with the Plaintiff for sale of 70,000 yards canvas from the goods disposed oil by the Military Department of the Government of India, at the rate of rupee one per yard. The Plaintiff paid rupees 4000/ - as advance to be adjusted towards the price. The goods were to be delivered on or before 5 -8 -1947 F. O. R. (free on rail) at Cawnpore by handing over the receipt in Calcutta. The contract Ex. P/1 is in following words: gfj'paUnz th }kjdknkl tksx eqjyh/ku fpjathyky dsk t;xksiky oapuk vkxs dsuOghl bUph 26 dh xt 70000 ¼ lÙkj gtkj 1/2 nj 1 # - xt ekg dkuiqj fMfyOgjh rqedks csph gksxh ftldh fcYVh dydÙkk dh cuokdj vkidks nSnh nsuh d'i;k ysbZ ysuk ftl isVs #i;k 4000 ¼ pkj gtkj 1/2 bu lkSnk isV vk;s fcYVh rkjh[k 5 & 8 & 49 rd vkidks ns nsaxs A
(2.) THIS contract was signed by Babulal Defendant No. 2 on behalf of Firm Murlidhar Chironjilal Defendant No. 2 Babulal was the proprietor of the Firm Radhsham Roshanlal of Indore. It is said that the license to sell cloth in the name of this Firm was suspended by the Textile Authority and therefore the contract was executed in the name of Firm Murlidhar Chironjilal Defendant No. 1. Now, Babulal is father -in -law to Chirongilal, proprietor of Murlidhar Chironjilal, who is his son -in -law. On 29 -7 -1947 the Plaintiff sent a telegram reminding Defendant No. 1 that delivery was due on 5 -8 -1947 and informed him that they were sending a man from Cawnpore to ascertain that the goods were of agreed quality. On 30 -7 -1947 Defendant No. 1 replied by telegram through Ins lawyer, Mr. Dravid, saying that there was no condition in the contract for selection of goods and that Railway hud stopped loading hence the hilahrtent of contract was impossible. I request to treat the contract as cancelled. Subsequently, on 8 -8 -1947 Shri N.H. Dravid pleader for Messrs Murlidhar Chironjilal, sent a letter to the pleader for the Plaintiff saying that the contract had become incapable of performance and therefore the Defendant Murlidhar Chironjilal wished to return the sum of Rs. 4000/ - which had been paid towards the contract. A draft dated 7 -8 -1947 for the amount of Rs. 4000/ - in favour of the Plaintiff was sent. Mr. Samvatsar pleader for the Defendant then replied that the sum of Rs. 4000/ - the Plaintiff is entitled to get besides the sum of Rs. 135729/2/4 as damages, and, that the Plaintiff had no objection to receive Its. 4000/ - without prejudice to his claim for damages. On 3 -10 -1947 the Plaintiff gave notice to Defendant No. 2 Babulal, who in his reply repudiated the contract and his liability and said that he had no concern With Defendant No. 1. The Plaintiff then filed this suit claiming damages amounting to Rs. 35,729/2/8 and Rs. 4/11/6 as cost of notice against Defendant No l. The Plaintiff prayed that 8 decree be passed for this amount of Rs. 35733/14/2 against such of the Defendants as may be found liable for the aforesaid sum and for costs of the suit and Interest be awarded to the Plaintiff from the date of the suit till realisation. In, his written statement Defendant No. 2 admitted the contract as alleged but said that it was made on behalf of Defendant No. 1 who was the contracting party. He urged that there was no cause, of action against him that the contract was in breach of law that the Plaintiffs had no right to select the goods and that booking for Calcutta was closed and therefore the contract had become impossible of performance. Defendant No. 2 stated that the Defendant No. 1 being a non -resident foreigner, the Indore Court had no jurisdiction to try the suit that the contract was void under Section 23 of the Contract Act. It was further stated that the draft for Rs. 4000/ - was sent to the Plaintiff with a clearly expressed Intention of canceling the contract that after accepting the draft the contract ought to be deemed as cancelled. Impossibility of performance of contract was also pleaded. It was further stated, that Defendant No. l had not authorised Mr. Dravid for sending any of the replies to the Plaintiffs notice. The claim for damages and the rate of cloth both 'were disputed. The Court below framed 5 issues but as only 3 of them are material for the purposes of this appeal, we confine our attention to these 3 issues: (1) Was booking of goods by railway from Cawnpore to Calcutta stopped so as to make it impossible for the second Defendant to deliver the goods loaded in wagons at Cawnpore Railway Station on or before 5 -8 -1947? (2) Is Plaintiff entitled to damages for bread of the contract, if there was any, at the rate o: Re. 0/8/3 per yard of the canvas agreed to be sold (3) Did the second Defendant act as the agent of the first Defendant in entering into contract in question and if he did so act and without authority, was the contract ratified by the first Defendant by the telegram dated 30 -7 -1947 sent by Mr. Dravid purporting to act on his behalf and the subsequent letters purporting to be sent on behalf of the first Defendant to the Plaintiff?
(3.) MR . Chitale, learned Counsel for the Appellant, strenuously urged that the finding on issue No. 1 was Incorrect and inconclusive also. The learned District Judge rightly states In the judgment, in the beginning, that It was for the Defendants to prove that booking of the stipulated canvas from Cawnpore to Calcutta was impossible up to 5th of August so as to make it Impossible for them to make the delivery of goods in terms of the contract. The learned Court below then discusses the evidence of D. W. Vishvanath Bhartia who deposed to have visited the Cawnpore Railway Station Goods -shed with priority certificate at the relevant time but was informed that the booking was closed. He also said that Kanhyalal sent by the Plaintiff also went to the Goods -shed with priority letter to no better success. The District Judge then concludes by saying: the statement of this witness is not supported by any documents. He says that he destroyed the forwarding notes as useless but no attempt is being made to produce the Priority certificate or, to explain what became of it. There is no evidence even to show that one was ever obtained besides the bare statement of the witness, who being a son -in -law of Defendant No. 2 and brother -in -law of Defendant No. 1 Chironjilal cannot be, considered uninterested in the result of the suit.;

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