Ramendra Mohan Datta, J. - (1.) This appeal has been preferred from the judgment and decree dated 7th Aug. 1964 passed by A. N. Ray, J. (as he then was). The learned Judge passed the decree in favour of the plaintiff-respondent Spence Ltd. for the sum of Rs. 8,760/- as the balance of the purchase price of the 'Normag' 25 H.P. Diesel Tractor; for interest on decree at 6% and costs. The suit was decreed only as against the Municipal Commissioners of the Hooghly Chinsurah Municipality the appellant herein and the defendant No. 1 in the plaint. The suit was dismissed as against the other two defendant-respondents who were the then Administrator of the appellant Municipality and the State of West Bengal.
(2.) The facts shortly are that the respondent No. 1 Spence Ltd. agreed to sell and the appellant agreed to purchase from Spence Ltd. one 'Normag' Diesel Tractor of 25 H.P. on, inter alia, the following terms and conditions:-- (a) The price of the said tractor would be Rs. 10,760/- nett, inclusive of all duties and taxes. (b) The said tractor would be demonstrated before the defendant No. 1 for two days, namely, on 12th and 13th April, 1958. (c) On being satisfied with the performance of the said tractor for 2 days the defendant No. 1 would take delivery of the said tractor and make immediate payment of 70% of the price amounting to Rs. 7,532/- and would thereafter pay the balance of the purchase price by 3 monthly instalments.
(3.) The said contract was entered into by exchange of two letters dated 8th April, 1958 written on behalf of the appellant and containing the offer and the acceptance thereof by the respondent No. 1 Spence Ltd. as communicated by its letter dated 9th April, 1958. Thereafter, Spence Ltd. sent the said tractor on 11th April, 1958 for demonstration. The tractor was demonstrated by the appellant on 12th and 13th April, 1958. According to Spence Ltd. the appellants were fully satisfied with the performance of the said tractor end accepted delivery thereof in terms of the said contract of sale. In token of acceptance of delivery of the said tractor the appellant paid to Spence Ltd. a sum of Rs. 2,000/- out of the sum of Rs. 7,532/- being the 70% of the price payable upon performance satisfaction as aforesaid. In spite of the said tractor being duly delivered the appellant wrongfully failed and neglected to pay to the plaintiff the balance of the said 70% payment or of the said purchase price. On or about 10th September, 1958 due notice under Section 535 of the Bengal Municipal Act had been served upon the defendant-appellant but still the same remained unreplied.;