Decided on February 02,1955

Surilal Appellant
Firm Shyamlal Respondents


Chaturvedi, J. - (1.) THIS second appeal of the Defendants arises under the following circumstances. The Plaintiff firm transacts business as commission agent and the Defendants purchased Alsi ΒΌ vlyh 1/2 through the agency of the Plaintiff firm. According to the plaint 448 'Pallas' of 'Alsi' were purchased by the Defendants on 26 -5 -43 from other per sons and were pawned with the Plaintiff firm. The Plaintiff had advanced the purchase money to the extent of Rs. 16,986 -8 -3. The Defendants deposited Rs. 4,000 in this account. After some time the Plaintiff firm asked the Defendants to deposit more money informing them that the price of 'Alsi' was going down and that they should deposit more money otherwise ,the 'Alsi' would be sold and if there was any if the balance would be recovered from the Defendant. On 27 -1 -44 the Defendant 1 Surilal sent a reply that the should be no hurry in the matter as he was reaching Shivpuri on 10 -2 -1944 and that he would issue suitable instructions after reaching the place. The Defendants, however, kept quiet. The Plaintiff firm then served a notice on 29 -10 -44 on one of the Defendants for depositing money within 12 hours stating therein that otherwise the goods would, be sold and that if there was any loss, the balance would be recovered from the Defendants. It is alleged in the plaint that the Defendants did not turn up and so the Plaintiff firm on 2 -11 -44 sold the 'Alsi' at a loss, at the rate of 24 rupees per 'Palla' and credited Rs. 9,172 -6 -3 in the account of the Defendants. The Plaintiff firm therefore filed this suit for Rs. 3,814 -2 -0 plus interest at the rate of Re. 0 -8 -0 on this amount. The Defendants resisted the suit on several grounds. The main grounds were that they had purchased only 148 'Pallas' of 'Alsi' and not 448 'Pallas' as alleged, that the Plaintiff firm did not sell the property to anybody, and that no notice was served on the Defendants under Section 176, Contract Act.
(2.) THE Sale of Goods Act was not in force in Gwalior State and so the provisions of the Contract Act are to be considered. The trial Court held that the Defendant's contention about 148 'Pallas' was not correct, that the notices had been served on the Defendants under Section 176, Contract Act but that the resale of goods by the Plaintiff firm to one Jeewanlal has not been proved and that the story of resale of the properly to Jeewanlal was entirely fictitious. The trial Court further found that the Co -operative Bank of Shivpuri had become creditor of the Plaintiff firm and that the said Bank got these goods sold to several persons from 27 -3 -1945 to 4 -4 -1945. The trial Court, however, passed a decree in favour of the Plaintiff firm for Rs. 2,978 -0 -0 with costs and future interest at the rate of Re. 1 per cent, per month. The learned District Judge in appeal upheld the findings of the Courts below but reduced the amount by Rs. 608 -9 -3. So the Defendants have come in second appeal to this Court, under Section 525, Gwalior Code of Civil Procedure, against the decree for Rs. 2,369 -6 -9 passed by the District Judge against them.
(3.) MUCH argument was addressed to me by Mr. Anand about the validity of the notices. In my opinion there is abundant evidence to show that a notice on 26 -1 -44 had been given to Surilal and on 27 -1 -44 a reply (Ex. P. 4) had been given by the said Defendant, then, there was one notice served on the other Defendants on 29 -10 -44. I do not think there is any force in the contention about the validity of the notices within the meaning of Section 176, Contract Act and this point must fail.;

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