- (1.) This is a suit for recovery of damages for breach of contract. The suit was filed on May 8, 1944 and originally there was only one Defendant, namely, The Maharaja Kashimbazar China Clay Mines, described as a firm, whom I will hereinafter refer to as the Defendant firm. On December 22, 1944, the plaint was amended and Suhash Kumar Ray, whom I will hereinafter refer to as S.K. Ray, was added as Defendant No. 2.
(2.) The Plaintiff's case is that by a contract in writing dated July 5, 1941 and by correspondence made in July, 1941, the Defendant firm agreed to supply to the Plaintiff five wagons of China clay monthly, for a period of one year beginning from July 1, 1941, up to June 30, 1942. Only two wagons had been delivered under the contract. The Plaintiff says that the time for delivery of the goods was extended from time to time. The Defendant firm, however, wrongfully purported to cancel the contract by a letter dated May 14, 1942. Later on the Defendant firm promised to deliver the remaining quantity by June 30, 1942. The Defendant firm, however, did not deliver the remaining 58 wagons inspite of the promise. This suit is brought on this wrongful failure to deliver. The Plaintiff further stated that the Defendant No. 2, S.K. Ray, entered into the contract for and in the name of the Defendant firm and the Defendant firm permitted S.K. Ray to carry on business in its name and to represent to the Plaintiff that he had authority to enter into the said contract on its behalf and that the Defendant firm, having held out S.K. Ray as its agent, is now estopped from denying such agency and is bound by the contract. There is an alternative claim against S.K. Ray for breach of warranty of authority, should it be held that he was not the agent of the Defendant firm and a claim against him in the further alternative on a breach of contract on the basis that it was made between him and the Plaintiff.
(3.) A written statement was filed on behalf of the Defendant firm by Maharaja Sri Chandra Nandy of Kasimbazar as the sole proprietor of the Defendant firm. In this written statement it is admitted that the Defendant firm was at all material times a business belonging to the Maharaja. It is stated that the business consisted of working certain China clay quarries in Bihar which the Maharaja held under a lease from the Government of Bihar. The Maharaja's case is that he stopped this business from before 1935 and up to January, 1943 and during part of this period, namely, up to December, 1940, the quarries were in the possession of S.K. Ray, the Defendant No. 2 and another person called Khagendra Kumar Ray and thereafter of S.K. Ray alone, as licensees and they worked the quarries on their own account. The Maharaja has also denied that S.K. Ray was his agent or had any authority to make any contract on his behalf or that he ever held out S.K. Ray as his agent.;