- (1.) This appeal is against the judgment and decree dated 21 st May, 1992 (decree signed on 4 th June, 1992) passed by Sub Ordinate Judge III, Jamshedpur in Money Suit no.132 of 1983, whereby learned court below has dismissed the plaintiff's suit.
(2.) The plaintiff appellant had filed the said suit for recovery of Rs.5,72,009.20 paise from the defendants jointly and severally with interest @ Rs.6% per annum from the date of filing the suit till realisation.
(3.) The plaintiff's case, in short, is that the plaintiff had placed purchase order being No.S/968109/M 838 dated 29 th March, 1979 to the Defendant no.2 for supply of ten tonnes of Ferror Molybdenum at the agreed rate of Rs.350/ per Kg. It was agreed between the plaintiff and Defendant no.2 that the supply would be made at the rate of two tonnes per month, commencing from April, 1979. On receipt of the payment from the plaintiff, the Defendant no.2 supplied five tonnes of the materials in five installments between 31 st May, 1979 to 31 st October, 1979. It was agreed between the plaintiff and Defendant no.2 that 98% of the amount would be payable to the Defendant no.2 against the documents through Bank and remaining amount would be paid within one month after receipt of the materials. Subsequently, the Defendant no.2 had requested the plaintiff to enhance the price to Rs.510/ per Kg. and by changed order dated 5 th November, 1979 the price of the said article was revised to Rs.510/ per Kg. with respect to only one ton and for the balance four tonnes order was cancelled. After the said changed agreement, the Defendant no.2 informed the plaintiff that one ton of the material has been despatched in 10 (ten) drums through the Defendant no.1 as per Challan no.3067 and G.R. no.696883 of Defendant no.1. On receipt of the intimation from State Bank of India, Jamshedpur of the price Rs.5,82,379.20 paise 98% thereof, as per the terms of payment i.e. Rs.5,72,009.20 paise was paid by the plaintiff by cheque. The further case of the plaintiff is that as per the terms of the carriage of Defendant no.1, it has right to dispose of the perishable article lying unidentified after 48 hours of arrival without any notice and it has right to dispose of other goods after 30 days of arrival, only after due notice in writing to the consignee Bank and the holder interested. In any case, the Bank and the holder are entitled to get the proceeds less freight and demurrage charges. It has been further stated that the Defendant no.1 never sent or served any notice or intimation of any sale or disposal to the plaintiff. In the month of September, 1981, the plaintiff approached the Defendant no.1, but he went on putting off the same on one pretext or the other. Thereafter, the plaintiff had sent letter dated 18 th September, 1981 demanding delivery of the materials from the Defendant no.1. On the receipt of the said letter, the Defendant no.1 gave evasive reply by letter dated 10 th October, 1981 and asked to contact his Central Office, Bangalore, where the consignment was said to be sent by the Defendant no.1. Thereafter, the plaintiff sent its representative to Bangalore, but the Defendant no.1 failed to deliver the article even there. Hence the suit.;