CHANNAPPA BASAPPA JAINAPURE Vs. JOINT FAMILY FIRM OF CK BALAKRISHNA CHETTIAR AND SON

JUDGEMENT

(1.) The appellant herein is the defendant in the suit. They are a firm at Amraoti in Madhya Pradesh engaged in selling toor dhal and other commodities. The plaintiff in the suit is a firm of dealers in Salem. Between 3-8-1953 and 5-8-1953, a contract war, catered into between the plain-tiff and defendant under which the defendant agreed to supply dhal of the description of Damangan Toor dhal at Rs. 52 a bag under the "Bilty" system as it is known in common parlance. The goods were booked at Amaraoti by rail on or about 6-8-1953 and the railway receipt along with the Invoice for Rs. 12,033/- was sent by the defendant to the plaintiff through the Central Bank of India. The plaintiff paid the price of the hundi as well as the railway freight (Rs. 838-14-0) and took delivery of the goods at Salem on 13-8-1953. Re found that the goods were damaged by moisture. The railway receipt itself contained a note that at the time the goods were loaded in the train in Madhya Pradesh they had been drenched by rain. They were also. mixed with broken bits and husk but with this part of the damage to the goods we are not concerned in this second appeal. We are only concerned with the damage to the goods caused by rain at the time it was loaded at Amraoti in Madhya Pradesh. The plaintiff sent a telegram, to the defendant on stating that all the bags were wet through rain damage, and that there were also broken bits and husk, that the go were stocked as the seller's and, requested the seller to send his agent with the hundi amount. To this telegram the defendant replied on 15-8-1953 by wire stating that when the dhal was loaded it was not wet that the plaintiff should not take delivery but keep the goods in the railway station, and, that a party of Damangan was really to come with the amount.

(2.) The goods were sold by auction between, 7-10-1953 and 20-10-1953 and they fetched err amount of Rs. 12002-2-0. The plaintiff filed the suit for recovery of Rs. 2881/- and odd representing the loss suffered by him on account of the go not being in accordance with the description, based upon the lesser value realized on the re-sail and the expenses incurred by the plaintiff over railway freight and so on.

(3.) The defendant denied that the goods were wet and asserted that the goods were dispatched according to description. There was no warranty as regards the quality and no breach of the warranty. Since the plaintiff did not comply with the defendant's request, i. e., not to take delivery of the goods, the plaintiff had no right to sell the goods at the risk of the defendant. The claim of Rs. 500/- towards damages was unsustainable. The other charges also could not he claimed. Their was also a question of want, of jurisdiction to try the suit by the Salem Court.