LAWS(RAJ)-1970-9-15

POONAMCHAND Vs. BRAHM DUTT BHARGAVA

Decided On September 22, 1970
POONAMCHAND Appellant
V/S
BRAHM DUTT BHARGAVA Respondents

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit for damages on account of the alleged breach of contract.

(2.) THE plaintiff-respondent No. 1 Brahm Dutt Bhargava carries on business in the town of Kishangarh, under the name and style 'shri Mahesh Metal Works'. THE plaintiff's case is that on 5-5 1956 the defendant-respondent No. 2 Dulichand as agent and on behalf of the appellant Punamchand, who carries on business at Ajmer under the name and style 'prakash Metal Works' made an agreement with the plaintiff for purchase of 20 to 25 pieces of brass cannons weighing about 200 mds. lying at Jaipur at the rate of Rs. 111/ per Md. THE original written agreement alleged to have been executed by Dulichand in favour of the plaintiff has been placed on the record and marked Ex 1. It is alleged by the plaintiff that he wrote a postcard to the appellant dated 1-5-1956 enquiring from him as to when he would reach Jaipur for taking delivery of the pieces of cannon, but having not received any reply the plaintiff sent a letter dated 14-5-1956 to the defendant by registered post to comply with the terms of the agreement Ex. 1. This letter was received by the defendant appellant on 19-5-1956 and by his letter dated 22-5-1956 posted on 25-5-1956 the defendant No. 1 disowned the agreement Ex. 1 alleged to have been entered by defendant No. 2 Dulichand on his behalf on the ground that Dulichand had no authority from him to make such a contract. THE original letter dated 22. 5. 1956 has also been placed on the record and marked Ex. A. 1. THE plaintiff's case is that even having received the reply Ex. A. 1. from the appellant, the plaintiff wrote another letter both to the appellant as well as Duli Chand calling upon them to take delivery of the pieces of cannon on payment of the price failing which the plaintiff would resell the goods and recover the loss to which he may be put by resale from both the defendants. Copies of these letters are Ex. 6 and Ex. 8. THE appellant, however, by his letter dated 27-6-56 (Ex. A. 2) reiterated the stand taken by him in his earlier letter dated 22-5-1959 (Ex. A. 1 ). THEreafter the plaintiff sold the pieces of cannon in question by public auction on 51-7-56 at the rate of Rs, 98/7/- per Md. as a result of which the plaintiff got Rs. 2537-69 paisa less than the price settled by the agreement Ex 1. To this amount he added Rs. 124-72 paise as charges for auction, Rs. 739-77 paisa on account of interest) at the rate of 6 per cent per annum and Rs. 1*42 paisa on account of notice expenses and thereby claimed a decree for Rs. 5403-60 paise against both the defendant by instituting the present suit in the Court of Civil Judge, Kishangarh on 1-5-1959.

(3.) LKSNS ds ysunsu fd;k djsxk** However, I find it difficult to accept the the interpretation put by the learned counsel on the statement of this witness and agree with the learned District Judge that Punamchand had represented to the plaintiff that Dulichand had his authority in the matter of entering into transactions on his behalf with the plaintiff and also making and receiving payments in connection with the same. P. W. 1 Brahm Dutt (plaintiff) has also stated that Dulichand used to come to him for entering into transactions with him on behalf of Punam Chand and that after the execution of Ex. 1 by Dulichand Punamchand and Duli Chand had both come to him together and had also entered into certain transactions. He has also stated that besides Ex. 1 Dulichand had entered into other transactions with him on behalf of the appellant, the details of which could be given by his manager. It may be pertinent here to point out that in the course of the cross-examination of Kedarnath, the manager of the plaintiff a question was put to Kedarnath whether there was any writing of Dulichand to evidence other transactions made by him on behalf of the plaintiff to which the witness replied in the affirmative and stated that he had not brought the same to the Court on that day. The appellant, however, did not pursue the matter and made no request to the Court to ask the witness to bring such writing and produce the same. PW-3 Parmanand, who is also an employee of the plaintiff has stated that Dulichand used come to the plaintiff's office for delivering and accepting goods and used to do all acts on behalf of the appellant. He has also corroborated the statement of Kedarnath to the effect that Punamchand had stated in his presence that Dulichand would be coming to the plaintiff delivering and accepting the goods as well as cheques, Hundies, Bills etc. , and would also do all other acts on his behalf. To the same effect, more or less, is the statement of PW. 4 Mannalal. Besides this oral evidence the learned District Judge has also placed reliance on the documents Ex. 22 to Ex. 26, which are letters and bills signed by Dulichand on behalf of the plaintiff which furnish a corroborative evidence of the fact that Dulichand had authority to act on behalf of the appellant. The learned District Judge has also drawn an adverse inference against the appellant for not producing Dulichand in evidence. This finding arrived at by the learned District Judge that Dulichand had authority to enter into the transaction in question on behalf of the appellant with the plaintiff cannot be said to be based on no evidence. The question whether this evidence was sufficient cannot be made ground of attack in second appeal, and taking into consideration the over all effect of the evidence produced by the parties I see no substantial reason to take a different view of the matter from the one taken by the learned District Judge. I am, therefore, in agreement with the finding arrived at by the learned District Judge that the plaintiff has succeeded in proving that Dulichand had authority on behalf of the appellant, to enter into the transaction in question and hereby over-rule the contention raised by the learned counsel for the appellant in this connection.