SETH NANAK CHAND SHADURAM Vs. THE TINNEVELY-TUTICORN ELECTRIC SUPPLY COMPANY LIMITED

JUDGEMENT

(1.) The Defendant in Original Suit No. 26 of 1966 on the file of the Court of the Subordinate Judge, Tuticorin is the Appellant. The Plaintiff -Respondent filed the suit alleging that it paid in excess to the Defendant in the course of certain supplies of R.S. Joists for which orders were placed by the Plaintiff with the Defendant. It also included in the claim a sum of Rs. 210 -70 towards demurrage charges which the Plaintiff is said to have incurred due to the default on the part of the Defendant, as also a sum of Rs. 410 -41 towards bank charges which expense was also attributable to a certain laches on the part of the Defendant. It is common ground that under exhibit A -29, dated June 1963 the Defendant supplied towards order No. 1716/GL/2, dated 14th December 1961 placed by the Plaintiff 265 pieces of R.S. Joists untested of a particular specification as detailed in the invoice and charged a sum of Rs. 31,86117 as their price which included transporting and delivery charges. Again, under exhibit A -30, dated 29th June 1963, 188 of such pieces were supplied by the Defendant pursuant to the same order as above. In the invoices as above the Defendant -claimed that the joints were of a measurement of 5 inches by 3 inches whilst the Plaintiff's case is that the joists were of a dimension of 125 by 75 m.m. Under exhibits A -5 and A -7 the Plaintiff made it clear that it has paid as claimed by the Defendant in their invoices exhibits A -29 and A -30 but that on later verification it was found that the R. S. Joists supplied by the Defendant was of the dimension 125 m.m. by 75 m.m. and not 5 inches by 3 inches as billed by the Defendant. As the price of the materials supplied has to be worked out on the weight and as a result of the misdescription as to the dimension of the Joists, the weight mechanically was put up higher resulting in excess charging of the price for the materials supplied. The Plaintiff made the position clear by comparing the weight of the materials supplied with the railway weight as per the railway receipt and claimed under those exhibits a refund of the excess sums so paid. Incidentally it may be stated that there was another consignment which also suffered the same mistake and discrepancy and when a claim was made for refund of the excess price paid by mistake, the Defendant, without any demur refunded the same. As regards the two consignments which were the subject -matter of invoices exhibits A -29 and A -30 towards which refunds of the excess price paid were claimed by the Plaintiff under exhibits A -5 and A -7 the Defendants, in response to an express demand made for such a refund under exhibit A -11. wrote to the Plaintiff under exhibit A -13 inter alia stating we have given instructions to our Accounts Department to refund the amount. In spite of the circumstances as above, the Defendant would not refund the excess price paid. This resulted in the Plaintiff issuing the suit notice exhibit A -23, dated 4th September 1964. It was confronted with a reply exhibit A -24, dated 3rd October 1964 whereunder the Defendant repudiated their liability to refund the amount claimed. The Plaintiff has therefore come to Court claiming a sum of Rs. 6,556.78 being the excess price paid towards the supplies covered by invoice exhibit A -29 and a sum of Rs. 4,912 -18 towards such excess price covered by the invoice exhibit A -30. The Plaintiff also included in the plaint two other claims, one for Rs. 210 -70 representing the demurrage charges incurred by it on account of the negligence of the Defendant, and the other for Rs. 410 -41 towards bank charges. In the written statement the Defendant raised contention that under the express terms of the contract the dispute in respect of the said contract shall be adjudicated by the Courts at Madras alone and that therefore the Subordinate Judge, Tuticorin, before whom the suit was instituted, had no jurisdiction to try and adjudicate upon it. But without prejudice to the above contentions as to jurisdiction, the Defendant, on merits denied their liability to refund the alleged excess price paid, as also their liability towards demurrage and banking charges. The learned Subordinate Judge framed the following issues:

(2.) Whether the entire cause of action arose within the local limits of the jurisdiction of the Civil courts in Madras and this Court has no jurisdiction to entertain the suit?

(3.) Whether the agreement alleged in paragraph 2 of written statement is true and this Court's jurisdiction is excluded thereby?