Bachawat, J. - (1.) On the 3rd September, 1949 the firm of Shree Hanuman Cotton Mills and Jagannath Agarwalla, one of their partners, instituted suit No. 2475 of 1947 against Tata Air Craft Ltd., asking for recovery of a sum of Rs.2,50,000/- paid to Tata Air Craft Ltd. on the 18th November, 1946. On the 3rd March, 1954 one Madanlal Juja a receiver appointed by an order of Court dated the 1st of August, 1950 in Suit No. 2165 of 1950 (Rameswardas Agarwalla & Ors. v. Jagannath Prasad Agarwalla & Ors.) was added as a plaintiff in Suit No. 2475 of 1947. By a decree dated the 16th July, 1959 suit No. 2745 of 1947 was dismissed. On the 23rd February, 1960 Shree Hanuman Cotton Mills, Jagannath Prasad Agarwalla and Madanlal Jaju preferred this appeal from the aforesaid decree. On the 15th May, 1961 one Bachraj, the receiver appointed in Suits Nos. 2165 of 1950 and 2930 of 1950 was substituted as an appellant in place of Madanlal Jaju since deceased. It is common case before us that Jagannath Agarwalla died on the 29th of May, 1961. His heirs have not been substituted in his place. It appears that Shree Hanuman Cotton Mills agreed to buy and respondents Tata Air Craft Ltd. agreed to sell the aluminium aero scrap at Dump No. 1 at Panagarh at and for the price of Rs.10,00,000/-. The contract was concluded by two letters dated the 18th November, 1946 and the 20th November, 1946 passed between the respondent and Jagannath Agarwalla C/o. Shree Hanuman Cotton Mills. It is common case before us that the contract concluded by this correspondence was between the respondents and the appellant firm Shree Hanuman Cotton Mills represented by Jagannath Agarwalla and that the sum of Rs.2,50,000/- was paid by Jagannath Agarwalla as partner of and as representing the appellant firm. In view of this common case the respondents' counsel conceded that in spite of the death of Jagannath Prasad Agarwalla, the appeal has not abated. The appellants have formally abandoned their case that (a) no contract was concluded by the correspondence, (b) that there was a mistake as to a matter of fact essential to the agreement and (c) that the contract was induced by false and fraudulent representations.
(2.) The respondents' printed terms of business were incorporated in the contract by express reference in the letter dated the 18th November, 1946 written by the respondents to Jagannath Agarwalla. Clause 9 of the printed terms was: "The buyer shall deposit with the Company 25 p.c. of the total value of the stores at the time of placing the order. The deposit shall remain with the company as earnest money and shall be adjusted in the final bills, no interest shall be payable to the buyer by the company on such amounts held as earnest money." Clause 10(b) of the printed terms provided that: "If the buyer shall make default in making payment for the stores in accordance with the provisions of this contract the company may without prejudice to its rights under clause II hereof or other remedies in law forfeit unconditionally the money paid by the buyer and cancel the contract by notice in writing to the buyer"
(3.) On the 18th November, 1946 the appellant firm through their partner Jagannath Agarwalla paid a sum of Rs.2,50,000/- to the respondents. The appellants' firm also agreed to pay to the respondents a further sum of Rs.2,50,000/- on the 22nd November, 1946 and the balance sum of Rs.5,00,000/- on the 14th December, 1946. Reading the two letters dated the 18th November, 1946 and dated the 20th November, 1946 together with the printed terms of business, it would appear that the sum of Rs.2,50,000/- was paid by the appellant firm as earnest and in part payment of the price.;