FIRM JAGAN NATH KUTHIALA ARHTI Vs. FIRM KHUSHI RAM BEHARI LAL

JUDGEMENT

(1.) THIS is an appeal against an order of the learned Senior Subordinate Judge, Simla, returning the plaint for presentation to another Court. The suit was for recovery of Rs. 10,725 -6 -6 on the basis of breach of contract to supply goods ordered by the Plaintiffs and on the basis of a promise of the Defendants to refund Rs. 10,000 paid to them by the Plaintiffs and for interest. In para. 10 of the plaint, the transaction was based on three grounds: (a) that the cause of action arose at Simla where the goods were to be delivered to the Plaintiffs on payment of the balance of the price; (b) that after the Defendants repudiated the contract to supply goods to them, the relation between the Plaintiffs and Defendants became that of creditor and debtor, and under the law it was the duty of the Defendants to pay the money to the Plaintiffs at Simla; (c) that the Defendants also promised to send Rs. 10,000 to Simla.

(2.) THE learned Judge has held that the Court at Simla had no jurisdiction on the ground

(3.) IT is in these circumstances that I have to determine as to what was the nature of the contract between the parties and what was the relationship between them. The Defendants were a firm of commission agents. An order had been sent to them to purchase goods and they agreed to do so if the money was paid to them. Part of the money was paid and for the balance the Plaintiffs agreed to pay if a Hundi was drawn on them, they being responsible for bank charges. Rupees 10,000 was paid to the Defendants by the Plaintiffs by way of advance in relation to their purchasing and despatching of grain. The method of payment then was that instead of paying the whole of the amount at Lyallpur as was suggested in the letter of the Defendants dated 24 -6 -1947 (Ex. P. 14) part of the money was paid and part of the money was to be paid through a bank. In other words, instead of a man going from Simla to Lyallpur and handing over the money in cash money was paid partly in cash and partly was to be paid through a bank against Hundies drawn. This was nothing more than a method of payment. There is no direct evidence excepting the bald statement of the Plaintiff himself that the goods were to be delivered in Simla and the price was to be paid there. The course of correspondence which I have referred to above on the other hand shows that the price was to be paid in Lyallpur and the goods also were to be delivered in Lyallpur. In the same letter, Ex. P. 14 the Defendants said that the railway receipt would be sent in the name of Plaintiffs. In other words, after the goods had been purchased they would be handed over to the common carrier, the railway. The arrangement that goods were to be sent to the Plaintiffs through the railway and the railway receipt was to be in the name of the consignee was never altered at any stage. At no stage had the Defendants agreed that they would deliver the goods in Simla or received the payment in Simla. The fact that freight was to be paid by the Plaintiffs and bank commission was also to be paid by them showed that the delivery and the payment were both agreed to be made at Lyallpur. The Respondents have submitted in this Court that this was not a case of price which was to be paid against a railway receipt. The correspondence shows that this contention is well -founded.