- (1.) THIS is a special appeal against the judgment of a learned Single Judge of this court in second appeal by special leave.
(2.) KESRIMAL, appellant-defendant, deceased, was a member of the Jodhpur Bullion association. Laxmi Narain, respondent-plaintiff, entered into transactions with him in accordance with the rules and usage of that Association. He sold 51 bars of silver at rates varying between Rupees 159/- and Rs. 159-3-0 on 4 different dates for the Vaida of Migsar Sudi 5, S 2011 corresponding to 30th November, 1954. On 25th November, 1954, the plaintiff went to the shop of the defendant and asked his son Babulal and his Munim who were present at the shop to cover up the sale of 51 bars by purchasing 51 bars for the same Vaida. They told him that the sales had already been covered. The plaintiff had never given any such instructions to the defendant. He accordingly sent a telegram, Ex. A-29, to him on 26-11-54, which runs as follows:- "yesterday, I asked you to square up my outstanding sale of fifty one silver bars at the market closing rate, but as the rate substantially fell down you, in order to get undue advantage falsely alleged that you had covered up my sales. I never instructed you to cover my outstanding sales and in fact you never did so. I still hold my outstanding sale standing with you and instruct you to cover up the sale immediately after the receipt of this telegram. Failing this you alone shall be responsible for all costs and consequences. "
(3.) ON the same day the defendant sent a telegram, Ex. A-30, to the plaintiff in which he alleged that the latter had personally squared up the sales on 23-11-54 and 24-11-54- This telegram runs as follows:-- "your telegram of today absolutely take. No outstanding bars with us. You personally squared up your sales of fifty-one bars by purchasing twenty-five bars at Rs. 159-6-0 on 23-11-54, eighteen bars at 159-1-6, one bar at 159-1-9 and seven bars at 159-2-0 on 24-11-54. You have also taken full copies of all these accounts from us on 24-11-54 and agreed to pay Rs. 1,087-15-6 on 25th morning. But since you want to escape your liability you have sent this false telegram. Pay the outstanding amount within a week else taking legal steps. ";