Ray, J. - (1.) This appeal is from the judgment of Mallick J. dated 29 July 1964 awarding the plaintiff a decree for Rs. 45,000 against the defendant Modis and a decree for Rs. 25,000 against the defendant Bhaduris.
(2.) The defendant Modi Vanaspati Manufacturing Company (hereinafter referred to as the 'Modis' for the sake of brevity) is the appellant. The respondents arc plaintiff Katihar Jute Mills (Private) Ltd. and the defendant Bhaduri Sen and Company Ltd. (hereinafter referred to as the 'Bhaduris' for the sake of brevity).
(3.) The plaintiff filed the suit against the Modis and the Bhaduris and claimed a decree for Rs. 80,960 as mentioned in paragraph 17 of the plaint and if necessary an enquiry into damages and decree for such sum as might be found due. The . plaintiff's case was that by exchange of letters and telegrams between the month of July 1952 and the month of November 1952 it was inter alia agreed that the Bhaduris would sell two sets of generating plants to the plaintiff with parts and equipments more fully mentioned in the correspondence to the plaintiff and the price of each plaint would be Rs. 70,000. The correspondence was set out in schedule A to the plaint. The plaintiif alleged that the Bhaduris were at all material times in the matter of the sale of the generating plants the agents of the Modis. In the month of October 1952 the plaintiff paid a sum of Rs. 35,000 for the price of the said generating plants, whereof Rs. 15,000 was to be appropriated towards the price of the first generating plant and the balance of Rs. 20,000 for the second set. The plaintiff alleged that the plaintiff obtained delivery of the first set. In paragraph 5 of the plaint the plainiilT alleged that the plaintiff paid the price of the second set as mentioned in that paragraph. The particulars of the payment of Rs. 70,000 arc that in addition to the said Rs. 20,000 there was a draft in favour of the Bhaduris for Rs. 15,000 and there were four drafts in favour of the (sic) aggregating Rs. 35,000. Fur-ther allegations in the plaint are that the defendant Modis by their acts and conduct held out the Bhaduris as their agents or allowed the Bhaduris to hold themselves out a.s agents. In paragraph 9 of the plaint it was alleged that the Modis at all material times knew that the plaintiff was acting in the matter of the sale of the sets on the basis that the Bhaduris were the agents of the Modis and by accepting the money and by acts and conducts the Modis intentionally caused or permitted the plaintiff to believe that if payments were made to the Bhaduris the second set would be delivered to the plaintiff. The plaintiff also alleged that the Modis were estopped from denying that the Bhaduris were their agents and were precluded from refusing delivery of the second set. The other pleading was that if the Bhaduris were not the agents of the Modis the plaintiff was entitled to relief against the defendants on the basis of the agreement or breach of warranty of authority. The plaintiff in the alternative claimed loss and damages assessed at Rs. 70,000. The plaintiff alleged that by refusing to allow the plaintiff to take possession or delivery of the second set to which the plaintiff became entitled the defendants deprived the plaintiff of the same and caused loss and damage amounting to Rs. 70,000. The plaintiff also alleged that the defendants or any of them were not entitled to retain and were liable to refund Rs. 70,000.;