G.K.Mitter, J. - (1.) This is a suit for recovery of a sum of Rs. 35,509-12-0, alternatively for an enquiry into damages suffered by the plaintiff, for interest and costs.
(2.) The plaintiff is a Company with lis registered office at No. 8, Lyons Range, Calcutta; in the year 1946 it was in need of boilers which were then very much in short supply. In order to help Colliery companies and others who were in need of boilers the Government of India started importing second hand boilers from the United Kingdom and allotting them to such persons. One such boiler being a Lancashire boiler was allotted to the plaintiff. On arrival in India and delivery to the plaintiff the boiler was found defective. Repairs were undertaken and effected to it. The plaintiff's case is that even with the repairs the boiler is not what it had contracted for. According to the plaintiff the defendant had undertaken to supply a boiler with a working pressure of 150 Ibs. per square inch but even after the repairs the boiler was found to be incapable of developing more than a pres-sure of 109 Ibs. per square inch and it was not therefore what the plaintiff had bargained for, being wholly unfit for the plaintiff's use. The plaintiff called upon the defendant to take the boiler back and refund the money paid but this the defendant refused to do. Hence this suit.
(3.) The plaint proceeds on the basis that there was a contract between the parties entered into by the plaintiff through its Managing Agents Messrs. Business Development Ltd. of No. 8, Lyons Range, Calcutta and by the defendant through the Assistant Coal Commissioner (HQ), Department of Industries and Supplies Government of India of No. 1 Council House Street, Calcutta. The plaintiff alleges that the defendant's said officer was duly authorised to act on its behalf and in fact had so acted in the matter of the agreement of sale to the plaintiff a second hand Lancashire boiler by Thompson 30' x 9'-3" dish ended type, working pressure 150 lbs. per square inch, manufactured in the year 1920, complete with fittings, mounting and firebars as per description contained in the specification given in the letter of the Assistant Coal Commissioner dated 18-1-1946. The plaintiff's case is that the bargain was entered into on the basis of representations and terms contained therein. The plaintiff alleges that at the time of placing the orders it informed the Assistant Coal Commissioner that the boiler was required for the purpose of being installed in its Churulia Colliery. The price fixed was Rs. 34,000/- and was in terms of the plaint paid to the defendant by a cheque drawn in favour of the Controller of Coal Accounts. In May 1946 the plaintiff obtained delivery of a Lancashire boiler which was found damaged in parts and was submitted for test by the Chief Inspector of Boilers, Bengal. Certain repairs thereto were advised by the said Inspector of Boilers. For some months there was correspondence between the parties as to whether any, and if so, what repairs should be effected and on 27-3-1947 the Assistant Coal Commissioner suggested certain repairs to be carried out, the cost thereof to be borne by the parties in certain proportions. These repairs appear to have taken a long time. Even thereafter the boiler according to the plaintiff could only develop a pressure of 109 lbs. per square inch. The plaintiff alleges that on 5-7-1949 it informed the Assistant Coal Commissioner that it had rejected the said boiler and called upon him to take the same back and refund the price paid. Particulars of the plaintiff's claim are given in para 13 of the plaint which includes Rs. 34,000/- being the price of the said boiler, Rs. 64-11-0 being the Railway freight paid by the plaintiff, Rs. 325-1-0 being the handling and unloading charges and Rs. 820/- being the cost of repairs.;