- (1.) These two First Appeals From Order, the one by Plaintiff and the other by the Defendant, arise out of an order of remand passed by the lower appellate court on the 3rd of October, 1952. The suit was for the recovery of a certain sum of money. The Defendant-firm dealing in cloth at Agra placed an order on the 7th of February, 1947, with the Plaintiff-firm Gorakhpur for the purchase of two hundred pieces of malmal cloth at market rate with directions that the said cloth may be sent to them at Agra. It was alleged by the Plaintiff that in compliance with that order the Plaintiff immediately purchased eighty-six pieces of malmal cloth and booked them to Agra. The railway receipt along with the invoice of goods was sent by the Plaintiff to the Central Bank of India, Agra, with direction that they may be handed over to the Defendant on the payment of the price. The Plaintiff contended that the Defendant failed to take delivery of the goods and pay the price, with the result that the Plaintiff had to resell the goods on the 2nd of July, 1947, after giving a notice to the Defendant and in this transaction the Plaintiff suffered a loss of Rs. 987/15/9. The Plaintiff accordingly claimed that sum together with interest reckoned at six per cent. Per annum.
(2.) The Defendant pleaded that the court at Gorakhpur where the suit was instituted had no jurisdiction to entertain the claim; that the order had been cancelled by the Defendant on the 7th of February, 1947; and that the damages claimed by the Plaintiff were excessive and inadmissible, in a much as the Plaintiff had had no business to keep those goods up to July, 1947, unsold; and that in any view of the matter the Plaintiff ought to have resold the goods by the 17th of February, 1947, when according to the Plaintiff the Defendant had refused to take delivery. The trial court held that as the control was made at Gorakhpur, part of the cause of action arose there and the court at Gorakhpur had jurisdiction to try the suit. It further held that in compliance with the Defendant's order, the Plaintiff had despatched eighty-six pieces of malmal cloth to the Defendant and as the cancellation of the order by the Defendant was not received by the Plaintiff before the 14th of February, 1947, and the goods had been despatched by rail before that date, the Plaintiff was entitled to recover the entire loss caused to him by the sale of goods on the 2nd of July, 1947, and he was further entitled to interest and other incidental expenses incurred by him. Upon those findings the suit was decreed in toto.
(3.) As against that decision an appeal was preferred by the Defendant and the lower appellate court concurred in the view of the trial court that the Munsif at Gorakhpur had jurisdiction to entertain the suit; that the Plaintiff had despatched eighty-six pieces of malmal cloth in furtherance of the order placed by the Defendant; that before the date of the despatch the Plaintiff had not received any intimation from the Defendant about the cancellation of the order; that the Defendant was bound to take delivery of the goods; and that the crucial date which will determine the question of damages would be the 2nd of March, 1947. The lower appellate court further found that since there was no evidence produced by the parties about the market rate prevailing on the 2nd of March, 1947, and since certain objections raised by the Defendant regarding certain items of expenditure charged by the Plaintiff had not been disposed of by the trial court, the only alternative left to the court was to remand the suit for determination of the proper issues.;