INDRA AGENCIES Vs. L D S EYMOUR AND COMPANY INDIA LIMITED

JUDGEMENT

(1.) The plaintiff L D. Seymour & Company, whose claim for recovery of Rs. 14,729.00 as damages has been decreed by the learned Subordinate Judge, Delhi, for a sum of Rs. 10,028/4.00 with proportionate costs, brought the suit on 15th November 1951, the foundation of the; claim being that the defendants, Indra Agencies and its partners, failed to take delivery of the goods at the stipulated time and these had to be sold at their risk. The amount claimed by the plaintiff company represented the shortfall in the price as the difference between the contractual rate and the market rate for the commodity on the date of sale. From the decree of the Subordinate Judge Delhi passed on 4th of April, 1955. the defendants have filed the appeal (R.F.A.No 87-D ot 1955) while the plaintiff-respondents have preferred cross-objections under rule 22 of Order 41 of the Code of Civil Procedure for the decretal amount being enhanced to the sum actually claimed in the suit This judgment will dispose both the appeal and the cross-objections.

(2.) The basis of the claim in the contract embodied in the letter written on behalf of the plaintiff company on 31st of May, 1951 to the defendants Messrs. Indra Agencies. As frequent reference would be made to the terms embodied in this letter, it would be well to set it out in detail. The letter is as under.-

(3.) In pursuance of these terms, the plaintiff-company wrote to the defendants on 4th of June, 1901 (Exhibit P. 3 at page 81 of the paper- book) that 25000 vials of 5 lac units had arrived in their warehouse and the defendants were asked to take deliveries in accordance with the contract No heed was taken to this letter and the plaintiffs were impelled to write further letters to the defendants, one on 25th of June. 1951 (Exhibit P. 4) and the other on 7th July, 1951 Exhibit P. In the latter communication, the plaintiffs drew the attention of the defendants to their letter of 25 th June, 1951, and asked them to take delivery of the goods in accordance with the terms of the contract, pointing out that nearly 5 weeks had elapsed since the goods had arrived. The defendants were told that they had to pay interest at the rate of 9 per cent and warehouse charges at the rate of four annas per carton per week. These letters did not produce the desired effect and eventually the defendants sent aletter (Exhibit P.6)on 10th July, 1901, which is to this effect :-