Murari Mohan Dutt, J. - (1.) This appeal is at the instance of the defendant no. 2, M/S. Goel Roadways, a common carrier and it ariass out of a suit for recovery of a sum of Rs. 34.131,90.
(2.) The case of the plaintiff M/S. M. Abehechand & Co. was that a consignment of 20 bales of hessian cloth was sold by the plaintiff to the defendant no. 1, M/S. Sri Balaji Poly Jute Industry, on November 10, 1972 and, as per the instruction of the defendant no. 1, the plaintiff delivered the tame to the defendant no. 2 at its Calcutta office for transport from Calcutta to Guddapah in Andhra Pradeah. It was specifically agreed between the parties that the defendant no. 1 would retire the relevant documents from the bank and the defendant no. 2 should not deliver the consignment to the defendant no. 1 without collecting the consignment note, which was booked to self. The defendant no. 1 failed to retire the relevant documents from the bank, and the defendant no. 2 in breach of contract delivered the consignment to the defendant no. 1 at Guddapah without collecting the relevant consignment note from the defendant no. 1. There were several correspondence between the parties and the defendant no. 1 promised to pay the price of the goods to the plaintiff, but ultimately it failed to keep its promise. The plaintiff, therefore, sued both the defendants for recovery of the said sum being the price of the goods including the bank charges inasmuch as the plaintiff's banker returned the relevant documents on account of the failure of the defendant no. 1 to retire the same.
(3.) The suit was contested by the defendant no. 2 alone. It was alleged that it had no branch at Guddapah, and that it was agreed between the parties that the defendant no. 2 would deliver the consignment to the defendant no. 1 without production of the relevant consignment note in order to avoid demurrage. Further it was alleged that the plaintiff had since settled with the defendant no, 1 who had paid the dues of the plaintiff and, accordingly, the defendant no. 2 was not liable.;