P.N.SHINGHAL, J. - (1.) THIS appeal arises from the judgment and decree of learned District Judge, Bhilwara, dated November 5, 1962. The case came before this Court on an earlier occasion and the facts have been mentioned at length in the judgment of Modi, J. dated September 9, 1961, in S.B. Civil Regular First Appeal No. 24 of 1956. As this appeal succeeds on a short but sure point, it is not necessary for me to state the facts at length.
(2.) IT will be sufficient to say that the plaintiff carried on the business of commission agency in the name of Ganesh Das Shri Krishn, in Bhilwara. He pleaded that Ram Parshad (defendant No. 1), the present appellant, purchased 73 bales of cotton from him, through his agent Kanhayalal (defendant No. 2) in two instalments, in Sambat 2005, costing Rs. 11,208/12/6, and paid Rs. 11,084/7/6, so that Rs. 124/5 - remained due from him on that account. There is no dispute regarding this liability. The plaintiff further pleaded that the defendant purchased 264 bales from him on Asadh Bud 3, S. 2005, through his agent Kanhayalal (defendant No. 2), but as the transaction did not materialise for 10 bales, the plaintiff claimed the price of the remaining 254 bales. The plaintiff pleaded that he purchased the 254 bales for Rs. 59,2/6/12/6 and was entitled to recover that amount because the defendant resiled from the contract and did not carry it out pay the price in spite of notice. The plaintiff therefore sold the 254 bales in the open market for Rs. 54327/ -/6 and claimed that he was entitled to the balance of Rs. 4,949/12/ -. After adding Rs. 124/5/ - due on the earlier transaction of 73 bales and Rs. 625/6/ - on account of interest, the plaintiff sued for the recovery of Rs. 5,699/7/ - with pendente lite and future interest. Kanhayalal (defendant No. 2) admitted having purchased 73 bales and 254 bales of cotton on behalf of Ram Pershad (defendant No. 2) and by his authority, as alleged by the plaintiff Defendant Ram Pershad, however, traversed the claim. He admitted having purchased 73 bales from the plaintiff, but pleaded that the purchase was not made through defendant Kanhayalal and denied the allegation that Kanhayalal was his agent at any time He denied the purchase of 254 bales, or the claim for the recovery of any loss on that transaction. He pleaded further that there could be no loss to the plaintiff because the price of the cotton had shot up considerably. Certain other pleas were taken in the alternative but they are not now relevant.
(3.) THE plaintiff filed a replication reiterating and clarifying certain points. The trial court framed a number of issues. It will be sufficient to say that issue No. 1, inter alia, covered the question whether Kanhayalal defendant No. 2 purchased the bales as the agent of the plaintiff. Issue No. 4 dealt with the question whether the plaintiff incurred an outlay of Rs. 59, 276/12/6 on the purchased of the 254 bales of cotton and whether those bales were sold for Rs. 54,327/ -/6 putting the plaintiff to a loss of Rs. 4,949/12/ -.;