Decided on December 24,1970

J. B. ADVANI AND CO. LTD Respondents


- (1.) THIS suit was filed on September 5, 1951 by Mr. Baijnath Bhagat, since deceased, describing himself as carrying on business under the name and style of Bhagat Oil Mill and claiming Rs. 43,219-7-3p. as damages from the defendant on the plea that the defendant has committed a breach of a contract in writing dated March 17, 1951 entered into with this Mill by refusing to take delivery of 170 tons of raw linseed oil being the subject-matter of this contract.
(2.) THE defendant has admitted this contract with this mill but has pleaded that this mill belongs not to Mr. Bhagat but to Messrs. Banshidhar Baijnath which is either or partnership firm or a Hindu joint family business. The defence, on the merits, pleaded is the frustration of the said contract on the plea that it was entered into on the basis that those goods were to be exported by defendant to its foreign buyers of Finland but exportation of linseed oil was totally prohibited after the contract was entered into and no export licence was granted to the defendant for exporting those goods. An alternative plea of an implied agreement and or an oral collateral agreement to the above effect and their frustration are also set up as further defence including the denial of any liability to pay any damages as claimed by the plaintiff.
(3.) MR. Bhagat was examined on commission in 1956 and, after his death his evidence was tendered during trial. His sole widow and only son brought themselves on the record as the executrix and the executor of his estate but probate was granted only to the son and, so, the widow cannot represent Mr. Bhagat in this suit the trial of which continued for more than 40 days on the following agreed issues : "1. (a) Is Bhagat Oil Mill a proprietary concern of the plaintiff as alleged in the plaint or it belongs to the joint family and/or the partnership firm as alleged in the written statement ? (b) If Bhagat Oil Mill belongs to the joint family or to the partnership firm whether the suit as framed is maintainable ? 2 (a) Did the plaintiff and/or its representatives know at the time of entering into the said contract dated 17th March 1951 that the defendant entered into the said contract for the purpose of exporting the said goods to their Helsinki customers ? (b) If so, was it the basis of the contract ? 3. Was there any implied and/or collateral oral agreement between the parties to the said contract that the goods contracted for were to be shipped outside India for the defendant's Helsinki customers ?";

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