- (1.) The appellants-defendants have preferred this appeal against the judgment dated 10.12.1981 passed by the District Judge, Udaipur in Civil Original Suit No. 84/1978, wherein a decree of Rs. 19542.28 including interest has been passed.
(2.) Briefly stated the facts of the case are that the plaintiff firm being a partnership firm under the caption of M/s Gujarat Oil Trading Company used to deal in oil & groceries business from whom the defendant firm on 20.1.1977 in Udaipur vide telephonic talk desired to purchase 40 tins of groundnut oil through broker Shri Bhanwar Lal Ladha, which was accepted by the plaintiff and the said 40 tins of oil was sent to defendants with a bill of Rs. 68,062.10 at the rate of Rs. 85/- per 10 Kg. The defendants by taking the said delivery sent Rs. 40,250/, but rest of the due amount of Rs. 27,812.10 + cost of empty drums required to be sent back remained with the defendants. Inspite of the notice no payment was made. Hence a suit for recovery of Rs. 35,000/- was filed against the defendants.
(3.) The defendants in their reply admitted to have asked for purchase of 40 tins of groundnut oil, but about the rate they disputed that it was purchased at the rate of Rs. 68.50 per 10 Kg. One of the employee Shri Narain Das when brought 40 tins of oil, it was found to be un-consumable for human being and when defendants resisted, Narain Das reduced the rate by Rs. 1.50 per Kg. to which the defendants agreed and took the delivery of the tins containing oil sent by the plaintiff. The defendants had already paid Rs. 40,250/- and rest of the amount if found to be due was to be paid at Bhilwara, the account has not attained finality and if any amount is found due, they are ready to pay. The empty drums had already been sent to the plaintiff and the plaintiff is not entitled for the cost of empty drums.;