B.D. Agarwal, J. - (1.) This is plaintiff's appeal.
(2.) The plaintiff is a Co-operative Society registered under the Co-operative Societies Act, 1912. It runs a Sugar Factory in Bazpur district Nainital. The defendant No. 1 is the sole proprietor of the Firm arrayed as the defendant No. 2. On Sept. 18. 1969 the parties entered into a contract in writing whereby the defendant No. 1 agreed to supply to the plaintiff 1000 Brass Tubes. The price agreed was Rs. 30/- per kilo F.O.R., Bazpur and this was inclusive of sales tax, excise duty, transportation, packing and forwarding charges. Of the goods 50% was to be supplied latest by October 31, 1969 and the rest within Nov. 30, 1969. A sum of Rs. 67,215/- was paid to the defendant No. 1 by the plaintiff by cheque the same day as advance money. The Brass Tubes in question were to be those manufactured by M/s. Kamani Tubes Private Ltd. Bombay. Despite the plaintiff having agreed to take the supply beyond the stipulated period, the defendant No. 1 failed to fulfil his part of contract. In Oct. 1970 the plaintiff made purchases of 300 Brass Tubes from another concern, namely, M/s. Prem Engineering Works, Meerut. The price paid to them by the plaintiff was at the rate of Rs. 36/- per kilo besides incurring the expenses in packing, transportation and the payment of sales tax. In all a sum of Rs. 18,484/- was incurred by the plaintiff on this account. In respect of certain other contracts the plaintiff owed certain amount to the defendant No. 1. After giving credit to the same and keeping in view the loss suffered by the plaintiff, it is alleged, to the extent of Rs. 18,484/- as mentioned above, it brought the suit on May 17, 1972 giving rise to this appeal claiming a sum of Rs. 27,809.50 against the defendants.
(3.) The defendants have resisted the suit pleading that the supply of Brass Tubes to the plaintiff depended on the goods being obtained from the manufacturers. Since the defendant No. 1 did not get supply from M/s. Kamani Tubes Private Ltd. Bombay, it did not become possible for him to comply with the terms of the contract entered into with the plaintiff. It is refuted thus that there was breach on the part of the defendant No. 1 or that there is liability incurred for damages in favour of the plaintiff. The contention further is that a sum of Rs. 5176.10 is due to the defendant No. 1 himself against the plaintiff and it is not correct to say that the plaintiff is entitled to recovery of Rupees 9325.50 as claimed by it or any other sum for that matter.;