Kasliwal, J. - (1.) This special appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment of learned single Judge dated 14th April, 1971, affirming the judgment and decree of learned District Judge, Bhil-wara dated 5th Oct. 1966.
(2.) Brief facts giving rise to this appeal are that the defendant-appellant M/s. Mewar Textile Mills Ltd., Bhilwara (hereinafter referred to as 'the Textile Mills') was altotted wagons of coal for its use by the Deputy Coal Controller, Government of India. The Textile Mills used to send permits of coal to the plaintiff-respondent and the plaintiff then used to obtain priority sanctions in the name of the Textile Mills. After obtaining such sanctions the plaintiff then used to approach the collieries, pay the money for the coal, and get the coal toadied in Railway wagons, The railway receipts were got prepared by the collieries as consignors in the name of the Textile Mills as consignee. The case of the plaintiff was that between 15th Oct. to 6th Dec. 1959, 25 wagons of coal were despatched to the Textile Mills and a sum of Rs. 11,936-70 paise remained due to the plaintiff from the Textile Mills. The coal wagons reached their destination, but the Textile Mills did not take delivery of the goods by taking the rail-way receipts from the Bank after making the payments. As the Textile Mills 'did not take the delivery of the coal wagons the amount of wharfage and de murrage swelled to the extent of Rupees 46,800/-. As this amount was not paid, the railway authorities appropriated the coal. The plaintiff's case was that it had paid the price of the coal to that collieries on behalf of the Textile Mills and as such it was entitled to recover the: amount from the Textile Mills. The plaintiffs claimed Rs. 11,936-70 paise as the principal amount plus interest @ 9% per annum in all Rs. 18,200/-.
(3.) The case set up by the defendant Textile Mills inter alia was that the plaintiff had acted in violation of the agreement in the course of the dealings inasmuch as instead of sending the railway receipts direct to the defendant, it sent them through the bank knowing fully well that the defendant was short of funds with the result that the railway receipt could not be taken and the consignment remained undelivered and wharfage and demurrage rose up to the tune of Rs. 46,8007-. It was further pleaded that after having come to know that the delivery of the coal wagons had not been taken by the defendant and the amount of demurrage and wharfage had risen to Rs. 46,800/-, the plaintiff took the responsibility of recovering the prices of the coal from the railway and also requested the railway to forgo the amount of demurrage and wharfage as a special case. The plaintiff had also given a notice to the railway for the recovery of the price of the coal and to institute a suit against the railway. On a request made by the plaintiff the power of attorney was also given by the Textile Mills to the plaintiff, but the plaintiff did not file any suit against the railway and returned the railway receipt to the Textile Mills after the limitation had expired against the railway. Under these circumstances the Textile Mills was not liable to pay any amount to the plaintiff. Some other objections were also taken in the written statement. On the aforesaid pleadings of the parties the trial Court framed the following issues :-- 1. Is the plaintiff's firm duly registered? 2. (a) Whether there was an agreement and practice between the parties that the plaintiff would send the railway receipts in respect of the coal direct to the defendant and not through bank and the plaintiff went against that agreement in sending the railway receipt through the bank? (b) If so what is its effect upon the suit? 3. Is the plaintiffs suit time barred? Is the defendant not liable to pay any amount to the plaintiff for reasons mentioned in paras 11 to 14 of the written statement? Is the plaintiff firm entitled to a sum of Rs. 11,936-70 p. as cost of the coal and Rs. 6,263-30 p. as interest upon it? Does the plaint not disclose any cause of action and therefore, is liable to be rejected? Is the defendant entitled to special costs? What relief ;