DESU RATTAMMA Vs. KAKARAPARTHI KRISHNAMURTHI

JUDGEMENT

(1.) Plaintiff sued for recovery of Rs. 1,497-5-0, advances made by him as purchaser to defendants as vendors in respect of a sale of gunnies and damages. The lower courts have found that the transaction fell through owing to plaintiff's default. Therefore, there is no question of damages but the lower appellate court has decreed the return of plaintiff's advance of Rs. 750, though without interest, except from date of suit. The second defendant appeals, 1 defendant files a memo. of objections.

(2.) The question for determination is, strictly speaking, one of fact, whether there was an implied contract between the parties that the money paid in advance should be treated as security for plaintiff's fulfilment of the bargain and as such liable to be forfeited on plaintiff's default. There can only be an implied contract, because no express stipulation is to be found in the agreement itself, Ex. A, which merely runs "You have paid advance Rs. 750 at Rs. 15 per bale. Hence the same has been received."

(3.) Looking at the language of this instrument, can it be inferred that the advance was made as a guarantee for the performance of the contract?