JWARMAL SHIVANATH MALU Vs. HAJI IBRAHIM KASSAM UPLITWALA FIRM

JUDGEMENT

(1.) The petitioner is the defendant, a merchant of Tasgaon in Bombay Province. The plaintiff in the suit does business in Calicut and ordered a quantity of 'New Chillies Chatni beat, dried, thin red' after approval by sample from the defendant. The contract was admittedly on8 known as C. I. F. and F. O. R. Tasgaon. On the arrival of chillies in Calicut, the plaintiff according to his plaint allegations, found on examination that the chillies were of inferior quality and not according to sample. He had a survey made by the Chamber of Commerce of Calicut whose report, he said, would bear out his allegations. After notification to the defendant, who made no response, the chillies were sold at the risk of the defendant. The plaintiff had paid Rs. 2900-4-0 by a hundi to the defendant before the goods were despatched. The suit was filed in the District Munsif's Court of Calicut to recover a loss of about Rs. 1500/-. The District Munsif of Calicut held that he had no jurisdiction as the cause of action arose in Bombay Presidency. In appeal the learned Subordinate Judge was of the opinion that part at least of the cause of action arose within the jurisdiction of the Calicut Court which was competent to entertain the suit, the merits of which have not been gone into.

(2.) There can be no doubt that had the chillies been sent according to sample, the Bombay Court alone would have jurisdiction as the cause of action arose wholly in that province Parthasarathy v. The Calcutta Glass and Silicate Works (1936) Ltd., 1948-2 M. L. J. 101: (A. I. R. (36) 1949 Mad. 145), is a Bench decision of this High Court on which reliance is placed for this position. This decision, however, makes no reference to a case such as the present, where goods not according to sample were despatched from outside on F. O. R. contract to this Province.

(3.) Mr. Ramachandran for the petitioner zelies on an English decision in Biddell Brothers v. E. Clemens Horst Company, 1911-1 K. B. 214, which gives him no assistance. That was a case of a contract for sale of one hundred bales of hops of a particular quality to be shipped provided the buyer paid at certain rate C. J. F. to London, Liverpool, or Hall, Terms net cash. The buyer contended that he was not bound to pay for the hops until their arrival at their destination and a reasonable opportunity had been allowed to him for examination to see if they were in conformity with the contrast. It was held that the seller was entitled to payment against shipping documents upon delivery of the hops on board the ship at the port of shipment, the buyer's right to reject the hops remaining unimpaired if upon arrival they were found upon examination not to be in conformity with the contract.