FIRM KHUSHI RAM BEHARI LAL Vs. FIRM JAGAN NATH KUTHIALA

JUDGEMENT

(1.) This is regular first appeal filed by Messrs Khushi Ram Behari Lal defendant-firm is directed against the judgment and decree of the learned Subordinate Judge, Delhi, whereby a decree for recovery of Rs. 10,700.00 was awarded in favour of firm Jagan Nath Kuthiala Arhati plaintiff-respondent

(2.) The plaintiff-firm which is carrying on business at Simla, filed the present suit for recovery of Rs. 10,725/6/6 against the defendant-firm which was previously carrying on business at Lyallpur, on the allegation that the plaintiff placed on order for the purchase of 1400 maunds of wheat with the defendant at Lyallpur in the beginning of June, 1947. The defendant wrote back to the plaintiff on June 18, 1947 that the wheat would be despatched to the plaintiff after obtaining the necessary permit from the food grain authorities. The plaintiff was asked to send at least Rs. 5,000.00 in advance. It was added that for the balance of price a hundi would be drawn on the plaintiff and would be sent along with the railway receipt for the goods. The plaintiff agreed to the terms offered by the defendant and sent Rs. 10,000.00 in advance and requested the defendant to despatch the goods to the plaintiff at Simla and to realise the balance of the price by drawing a hundi on the plaintiff. The plaintiff thereafter sent many letters to the defendant asking for the despatch of wheat to Simla but the defendant failed to do so. On August 11, 1947 the defendant wrote a letter to the plaintiff expressing inability to despatch the goods on the ground that the Superintendent Food Grains had refused to grant permit for the despatch of wheat from Lyallpur to any other district as there was shortage of food grains at Lyallpur. The plaintiff was asked by the defendant as to whether the amount of Rs. 10,000.00 was to be sent back to Simla. The plaintiff thereupon wrote to the defendant that since the latter had not been able to consign the wheat for two months, the defendant should remit the money back to Simla along with permit for 1400 maunds of wheat. On receipt of that letter the defendant wrote back to the plaintiff that the defendant was willing to refund Rs. 10,000.00 to the plaintiff but the amount could not be sent by draft lest it might be lost in transit on account of disturbances. The plaintiff was asked to draw a hundi on the defendant for Rs. 10,000.00. The plaintiff thereafter drew a hundi on the defendant and sent it to Lyallpur through Hindustan Commercial Bank Ltd., but the hundi was received back. The plaintiff thereafter served a notice upon the defendant demanding refund of Rs. 10,000.00 along with interest at the rate of 6% per annum. According to the plaintiff-firm the defendant-firm was liable to pay Rs. 725.00 as interest because of wrongfully withholding the amount of Rs. 10,000.00.

(3.) The suit of the plaintiff was initially instituted in the Court of Senior Subordinate Judge at Simla on November 2, 1948. The learned Senior Subordinate Judge, Simla, as per order dated April 11, 1949 held that the plaintiff should have sued the defendant at Delhi and not at Simla, and that Simla Court had no jurisdiction to try the suit. The plaint was, accordingly, ordered to be returned to the plaintiff for presentation to the proper Court. The plaintiff filed an appeal against the aforesaid order but the plaintiff's appeal was dismissed by the Punjab High Court on November 23, 1950. The plaintiff thereafter presented the plaint in the Delhi Court on December 27, 1950. Along with the plaint the plaintiff presented an application stating that after the decision of the High Court the plaint had been returned to the plaintiff on December 23, 1950. Protection was sought of Section 14 of the Limitation Act. The plaintiff added that the plaintiff-firm had been advised that the Simla Court had got jurisdiction and was right in choosing the forum. Proceedings were stated to have been carried on bona fide at Simla and thereafter in the High Court.