NANAK CHAND SHADURAIN Vs. TINNELVELY-TUTICORIN ELECTRIC SUPPLY CO. LTD

JUDGEMENT

(1.) THE defendant in O.S. 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 certain laches on the part of the defendant. It is common ground that under Ex. A -29 dated 17 -6 -1963 the defendant supplied towards order No. 1716/GL/2 dated 14 -12 -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. 31,861 -17 as their price which included transporting and delivery charges. Again, under Ex. A -30 dated 29 -6 -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 foists were of a measurement of 5 inches X 3 inches whilst the plaintiff's case is that the Joists were of a dimension of 125 X 75 m. m. Under Exs. 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 were found that the R. S. Joists supplied by the defendant were of the dimension 125 m. m. X 75 m. m. and not 5 inches X 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 this 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.

(2.) MR . T. Raghavan, learned counsel for the appellant, was unable to impress upon us that the findings of the lower Court on merits ought to in any way be disturbed. As a matter of fact, under Ex. A -13 the defendant practically agreed to refund the suit amount and their prior conduct in refunding such excess paid in connection with an earlier supply also fortifies the case of the plaintiff that they did pay the price in excess of the price of the goods to which the defendant was lawfully entitled. As no person can unjustly enrich himself due to a mistake whether wanton or otherwise, made by him in the course of dealings by him with another and as the weight of the Joists has been wrongly calculated in the invoices, we have no hesitation to hold that the plaintiff is entitled to the refund of the excess price of the goods sold and delivered to it by the defendant as found by the trial Court.

(3.) BUT the more important question raised by Mr. T. Raghavan, learned counsel for the appellant is that the parties having contracted specifically to vest jurisdiction to decide disputes relating to the relative sales and purchases of goods in the Courts at Madras, the Court at Tuticorin had no jurisdiction to entertain the suit, and much less to decide on it. The relevant portion of the contract which is reflected in the conditions of sale agreed to between the parties reads thus :