SHIMOGA OIL MILLS Vs. RADHAKRISHNA OIL MILLS KADIRI

JUDGEMENT

(1.) The plaintiff as proprietor of a concern called the 'Shimoga Oil Mills' brought a suit in the nama of the Mills against the defendants who are proprietors of an Oil Mill in Kadiri in Ananthapur District, for recovery of Rs. 3,282/-. The suit was dismissed by the Subordinate Judge and the plaintiff has appealed.

(2.) The case for the plaintiff is that on 29-6-1947 the defendants agreed to supply 1,224 bags of groundnut seeds at Rs. 134/- per candy. The defendants received Rs. 3,000/- as advance but failed to deliver the goods though more than 2 months elapsed and in spite of repeated demands and though waggons had been available for making the supply. The plaintiff had therefore cancelled his order on 2nd and 5th September 1947 and asked for refund of the advance with interest which he has now claimed in this suit while reserving to himself a right to sue for damages for non-delivery later.

(3.) The defendants admitted the agreement and receipt of the advance. They however pleaded that time was not of the essence and they had to supply the goods only when waggons or 'empties' were made available by the Railway, that they had registered an application for the necessary wagons immediately after the agreement and that when the waggons were made available they had asked the plaintiff to send a representative of his to supervise the despatch of the goods, that the plaintiff had faile'd to send a representative though he was bound to do so and had wrongfully concelled the contract and claimed refund of the advance. The defendants subsequently sold the goods by public auction with notice to plaintiff. The same had resulted in a loss of Rs. 12,344/- which they were entitled to set off against the advance. They also reserved to themselves the right to sue for damages. The suit brought by the plaintiff in the name of Shimoga Oil Mills was not maintainable and the Shimoga Court could not try the suit as no part of the cause of action had arisen within its jurisdiction.