PATODIA AND CO Vs. BOMBAY WOOLLEN MILLS LIMITED

JUDGEMENT

(1.) This is plaintiff's suit for recovery of Rs.2,33,249.00 . The facts alleged in the plaint are that the plaintiff is a partnership firm registered under the Indian Partnership Act, 1932. It is further averred that in July, 1976 the defendant appointed the plaintiff as its agent for sale of knitting yam manufactured by the former on consignment basis. According to the plaintiff the arrangement between the parties was that the defendant was to pay to the plaintiff commission at the rate of 2% and brokerage @ 1/2% on the sale price of theoods. The plaintiff maintains that it was entitled to be reimbursed by the defendant on account of the expense's incurred for taking delivery of the goods including their transport and storage, besides amounts spent on travelling undertaken in connection with the agency business. Plaintiff asserts that pursuant to the arrangement the defendant was sending goods through rail/road transport and the plaintiff had been taking delivery of the same. It is further alleged by the said party that sometimes it was sending advance payment to the defendant in anticipation of the arrival of the goods sent by the latter. It is also averred that the plaintiff was maintaining regular books of account in the course of its agency business.It is claimed that as a result of the transactions betweeen the parties a sum of Rs.2,2l,089.00 as on June 30,1978 became due and payable to the plaintiff by the defendant. In this regard a written notice is also alleged to have been given by the plaintiff to the defendant but to no effect,with the result that the plaintiff instituted the present suit for recovery of Rs.2,33,249.00 which included interest upto the date of filing of the suit together with pendente lite and future interest @ 22% per annum. The defendant in its written statement has by way of preliminary objections pleaded that the suit is barred by time and that the court has no jurisdiction to entertain and decide theame as the cause of action arose at Bombay and not at Delhi. It has been further averred that there is a specific agreement between the parties for settling the disputes in courts at Bombay alone. In its reply on merits, it is denied that the plaintiff is entitled to receive any amount claimed in the suit.According to the defendant the agreement between the parties has been spelt out in letters dated July 21,1976 and December 5,1976 in which it was agreed that the plaintiff was only entitled to the commission @ 2% on the net sales, that the plaintiff was not entitled to delivery charges and that the plaintiff failed to pay a sum of Rs.89,100.00 to the defendant for certain goods supplied to it. It is further maintained that the defendant on two occasions advanced a total sum of Rs.l,70,000.00 to the plaintiff for enabling it to clear the goods. It is also the case of the defendant in the written statement that the plaintiff defaulted in honouring the hundies to the tune of Rs.l3,99,204.00 resulting in payment of bank charges amounting to Rs.70,892.49 by the defendant. The defendant has also challenged certain entries made in the statement of account filed by the plaintiff alongwith the plaint. In the replication the plaintiff has reiterated the facts stated in the plaint. Having regard to the pleadings and documents filed by the parties the following issues were framed: "1.Whether this court has jurisdiction to try this suit?OPP (Onus objected to).

(2.) Whether the plaintiff firm is registered under the Indian Partnership Act and Shri Moti Lal Patodia is shown as a partner in the register of firms?

(3.) What were the terms of appointment of the plaintiff as agent of the defendant for sale of defendant's goods?