A.N.RAY, J. - (1.) THIS is a suit for the recovery of Rs. 29647/9/3 as damages and a sum of Rs. 4401/12/9 as the amount lying with the defendant out of the sum of Rs. 48000/ - paid by the plaintiff to the defendant as and by way of payment in advance towards the price of 60 tons of pig lead.
(2.) THE plaintiff's case is that by a contract entered into in the month of January 1947, the defendant agreed to sell and the plaintiff agreed to buy 120 tons of pig lead of Australian origin at Rs. 39/ 120/ - per cwt. ex defendant's godown. The terms alleged by the plaintiff in paragraph 1 of the plaint are, inter alia, as follows : (a) The defendant would deliver to the plaintiff the said 120 tons of pig lead in two lots of GO tons each; (b) The plaintiff would pay the defendant the price of each lot of 60 tons at Rs. 39/12/ - per cwt. (c) The defendant would give delivery of the aforesaid lot of 60 tons to the plaintiff immediately after full payment of the price of the said 60 tons at the said rate; (d) The remaining quantity of the second lot weighing 60 tons to he delivered to the plaintiff after delivery of the first lot of 60 tons; (e) The full value of the remaining quantity of 60 tons at the contract rate to be paid by the plaintiff after delivery of the first lot of 60 tons to the plaintiff. On these terms the plaintiff alleges that on 16 -1 -1947 the plaintiff advanced to the defendant a lump sum of Rs. 48,000/ - which covered more than the full value of the price of the first lot of 60 tons. In paragraph 3 of the plaint it is alleged that it was further agreed between the parties that after debiting the plaintiff with the full value of the first lot of 60 tons at the contract rate against the sum of Rs. 48,000/ - advanced by the plaintiff the balance would be carried over to the credit of the plaintiff and appropriated towards part payment of the price of the second or remaining lot of 60 tons of pig lead.
(3.) IN paragraph 5 it is alleged as follows : 'The plaintiff at the request of the defendant extended the time for delivery from time to time and accommodated the defendant to deliver the said goods in instalments within a reasonable time.';