- (1.) THIS second appeal is directed against the appellate decree of Shri Maharaj kishore, District Judge, Hissar, confirming the decree of Shri P. K. Thukral, Sub- Judge 1st Class, Gur-gaon, by which the suit of the plaintin-appellants was dismissed on 18-5-1949.
(2.) LAL Chand and his sons Prabhu Dayal and Chuni Lal constituted a joint Hindu family and carried on their business under the name and style of Messrs. Lal chand Prabhu Dayal at Hodel, Tehsil Palwal. On 30-5-1943 Prabhu Dayal acting as karta and manager Of the family gave a hundi to the plaintiff-firm Nanak Chand Bam kishan Of Hodel for a sum of Rs. 5,894/4/-drawn on Messrs: Manohar Lal Ram parshad of Hailey Mandl, Pataudi, and obtained from the plaintiffs a sum of Rs. 5,879/4/-, i. e. , the amount covered by the hundi less commission at the rate of / 4/- per cent. As collateral security for the amount of the hundi the defendants also handed over to the plaintiffs one railway receipt under which 154 bags of matra and 50 bags of arhar had been booked. The hundi bore an endorsement on the back of it that the amount covered by the hundi may be paid on receipt of the railway receipt. The said hundi was presented to Messrs. Manohar Lal Ram Parshad through the central Bank of India for acceptance and payment, but on 2-9-1943 the said firm dishonoured it. The plaintiffs received information regarding this fact on 8-9-1943 and obtained delivery of the goods covered by the railway receipt on 12-9-1943. On 1-10-1943 the plaintiffs sent a registered notice to the defendants informing them that the hundi had been dishonoured and that they had obtained delivery of the goods covered by the railway receipt and asking the defendants to pay the amount at once failing which the goods would be sold on the market rate and suit for deficiency would be filed against the defendants. The defendants replied to the said notice on 3-10-1943 disclaiming any interest in the goods and taking the plea that there had been an out and out sale of the goods covered by the railway receipt and that the defendants were no longer liable for any amount. The plaintiffs took a pretty long time in making sale of the good. Matra was sold on different dates from 14-2-1945 to 13-4-1945 and arhar was sold on 30-10-1946 and 1-11-1946. After giving credit of the amounts recovered by the sale of the goods there remained an amount of Rs. 2. 963/4/3 still due to the plaintiffs. On 19-8-1956 the plaintiffs brought the present suit for the recovery of Rs. 3,756/ -. In para 7 of the plaint they stated that the principal amount due to them was Rs. 2. 963/4/3 and that the interest on the same calculated at 6 per cent. per annum came to Rs. 729/11/9/ -. The plain-tiffs gave the total of the amounts as Rs. 3,756/-although by calculation it comes to Rs. 3. 693''-only. The plaint was based on the facts given above. 2a. The defendants contested the suit and pleaded that the plaintiffs had in fact purchased the goods mentioned in the railway receipt from the defendants and out of the price of the goods they had paid Rs. 5. 427/7/6'-while the balances of Rs. 451/12/6 was agreed to be paid within one week but was never paid. The defendants denied-to have received any valid notice of dishonour of the hundi and contended that the sale of goods made by the plaintiffs was against law and was not binding on the defendants. The defendants claimed an equitable set off for the aforesaid amount of Rs. 451/12/6 taut did not pay any court-fee on the said amount.
(3.) ON the above pleadings the trial Court framed as many as thirteen issues. It was found by the trial Court that the huncli had been drawn after receipt of the full consideration mentioned in the huncli, that the transaction was not an out and out sale, that the goods were sold at the rate and in the manner alleged by the plaintiffs, that the railway receipt had been given to the plaintiffs by way of collateral security for the hundi, that the hundi had been dishonoured by Messrs. Manohar Lal Bam Parshad, that it was necessary for the plaintiffs to have given a notice of dishonour of the hundi to the defendants, that the notice, Exhibit P. 2, did not satisfy the requirements of law and that the plaintiffs had consequently no locus stand to file the suit. The defendants were not held entitled to any equitable set off and the plaintiffs' suit was Dismissed mainly on two grounds, namely that the plaintiffs had not given any proper notice to the defendants of the hundi having been dishonoured by the drawees and that the sale made by the plaintiffs was much belated and was not binding on the defendants. The plaintiffs went up in appeal to the District Judge, Hissar, which was also dismissed practically on the same grounds. They have now come up to this Court in second appeal and the points urged before us on their behalf are as follows: 1. that no notice of dishonour in respect of the hundi was necessary in this case; 2. that an oral notice was given sometime in the middle of September 1943 after the delivery of the goods had been taken; 3. that the written notice dated the 1st of October complied with the requirements of law; 4. that the plaintiffs were not bound to make the sale immediately after giving notice for the said purpose; 5. that the sale made in this case was perfectly binding on the defendants; and 6. that in any case the defendants had not proved that they suffered any damages on account of the belated sale.;