- (1.) JUDGEMENT OAK, J. : This is a defendants appeal arising out of a suit for damages Firm Gordhan Das Anant Ram and Company, Muzaffarnagar is the plaintiff Messrs Sugar Agents Limited, Muzaffarnagar are the defendant. The parties are firms dealing in sugar.
(2.) THE plaintiff filed the suit on 29-9-1951 on these allegations. On 9-7-1961 there was an agreement between the parties that the defendant should supply to the plaintiff at Bombay one thousand bags of sugar of Hasanpur Mills of quality D-28 at the rate of Rs. 63 per maund. The plaintiff paid the defendant Rs. 10,000 in advance. On 20-7-1961 the plaintiff placed with the defendant another order for 980 bags of sugar of the same quality. The rate settled was Rs. 62/8 per maund. The plaintiff paid another sum of Rs. 9,800 as advance. In this way by 20-7-51 there was an agreement between the parties for supplying 1,980 bags of sugar at different places. The total amount paid as advance was Rs. 19,800. Towards the end of July 1951 the defendant arranged to despatch to Bombay 700 bags of sugar in two instalments of 200 hags and 600 bags. The plaintiff instructed its agent at Bombay to issue Hundis to cover this consignment Acting on those instructions, the plaintiffs agent at Bombay deposited a sum of Rs. 1,14,281-11-0 with the Imperial Bank of India, Bombay and obtained Railway Receipts and Bills. The bills indicated that the sugar despatched was of D-27 qualify, and not of D-28 quality. This information was conveyed by the agent to the plaintiff. The plaintiff sent a telegram to the defendant protesting that the plaintiff was not prepared to accept sugar of D-27 quality. The plaintiff charged the defendant for breach of contract, and rescinded the contract. The defendant gave no reply to the plaintiffs telegram. Another consignment of 100 bags of sugar was sent to Navlakhi. That consignment was also for sugar of inferior quality. The defendant was asked to remove these bags of sugar lying at Bombay at Navlakhi. But the defendant paid no attention to this advice. The plaintiff advised its agents to arrange for resale of the sugar to reduce loss. Resale of sugar at Bombay resulted in a loss amounting to Rs. 14,971-8-0; while resale of sugar depatched to Navlakhi resulted in a loss of Rs. 2,591-13-9. Some sugar bags were depatched by the defendant to Surendra Nagar. But the plaintiff refused to take delivery of those sugar bags. The plaintiff filed the suit to reimburse himself for the loss incurred by it on account of resale of sugar despatched by the defendant to Bombay and Navlabhi. The plaintiff also claimed refund of Rs. 19,800 paid by it as earnest money. The plaintiff also claimed interest on these amounts at the rate of 6 per cent per annum. In all, the plaintiff claimed from the defendant a sum of Rs. 38,387-9-0 as damages. The defendant admitted that there was an agreement between the parties for supplying sugar at different places. According to the defendant, it was clearly understood that the defendant would supply to the plaintiff sugar of D-28 quality or of D-27 quality as might be available at the Mills In case sugar of D-27 quality was supplied, rebate would be allowed. The defendant further pleaded that the plaintiff having accepted goods, the objection as regards particular quality of sugar must be deemed to have been waived by the plaintiff. The plaintiffs right to reject goods or rescind the contract was lost due to acceptance of a part of the goods. The defendant further complained that, on account of the plaintiffs refusal to accept other consignments, the defendant buffered a loss to the extent of Rs. 24,745-9-6. The defendant denied that it was liable to pay to plaintiff any amount as damages. On the contrary, the defendant is entitled to recover damages from the plaintiff. The defendant has filed a separate suit against the plaintiff to recover damages.
(3.) THE suit was tried by the learned Addition Civil Judge of Muzaffarnagar. He accepted the plaintiffs case that under the contract the defendant was bound to supply sugar of D-28 quality. But sugar actually supplied by the defendant to the plaintiff at different places was of D-26 quality. It was, therefore, held that the defendant was bound to compensate the plaintiff for the losses incurred by it in the resale of sugar. The Court also held that the defendant must refund the money paid to it as advance. The claim for interest was also accepted. The learned Civil Judge, therefore passed in plaintiffs favour a decree for Rs. 38,387-9-0 with costs and future interest at 8 per cent per annum. The defendant, therefore, appeals.;