RAMINIDIR PAL SINGH Vs. FRANCIS MILLS

JUDGEMENT

(1.) THE plaintiff firm is a manufacturer of packing cases.The 1st defendant firm is a dealer in those goods.The 2nd defendant has taken over the assets and liabilities of the 1st defendant.The plaintiff firm claims a sum of Rs.9,557 being the value of packing cases manufactured by it as ordered by the defendants on the basis that the defendants repudiated the contract and failed to give instructions to the plaintiff as regards the despatch thereof.It is the case of the plaintiff that the defendants failed to give instructions regarding despatch of 350 cases of the size 28 "X 12 "X12 "which were manufactured as per orders placed by the defendants.The plaintiff claims Rs.875 on this score under item 1 in the valuation statement in the plaint.Plaintiff's further case is that under a contract entered into between the parties in September 1962,the plaintiff was to supply one wagon load of casts of the sizes and specifications contained in the defendants 'order,dated 28th September 1962 and that no instructions as regards despatch of the cases manufactured pursuant to this contract have been given by the defendants.The plaint claim under items 3 to 7 in the valuation statement is for the value of the cases said to have been manufactured under this contract.Under item k in the valuation statement the plaintiff's claim is for Rs.1,800 as value of 1,000 cases of the size 37 X 4 X 28 cm.Both the lower courts dismissed this claim and this claim is the subject matter of the cross appeal.In all these instances what the plaintiff claims is the value of packing cases alleged to have been manufactured pursuant to the above said contracts stated to have been made by the defendants with the plaintiff for their supply on the ground that plaintiff was always ready and willing to send the goods but they could not be sent due to want of despatch instructions.

(2.) THE defendants deny their liability.They also dispute the allegation that they failed to give despatch instructions as regards any of the goods for the supply of which they placed orders with the plaintiff.The defendants also contend that packing cases were not manufactured by the plaintiff for supply 10 the defendants,and if any has been manufactured for that purpose,it was without any justification.It is further contended by them that the plaintiff is not entitled to recover the value of the packing cases.The Trial Court decreed the suit holding that the plaintiff is entitled to get from the defendants a sum of Rs.7,757.30.That court,as already mentioned,disallowed the plaintiff's claim for Rs.1,800 as value of 1,000 casts of the size 37 X 24 X 28 cm.under head No.2 in the valuation statement.The lower appellate court dismissed the appeal preferred by the defendants and the cross appeal filed by the plaintiff.The defendants have come up to this court.The plaintiff has filed a cross appeal also.

(3.) THE case of the plaintiff appears to be that in respect of the 350 cases of the size 18 "X 12 "x 12 "mentioned in Ext.P12(office copy of a letter,dated 22nd August 1962 sent by the plaintiff to the 1st defendant)no despatch instructions have been given by the 1st defendant.This letter is with reference to four orders,namely,BX/2605/62,dated 29th January 1962,BX/2814/62,dated 13th March 1962 and Exts.P1 and P4 orders.As seen from the discussion in the preceding paragraph as against Exts.P1 and P4 orders what remained to be despatched is only 240 packing cases of the size 18 "x 12 "x 12 " ;.The other two orders mentioned in Ext.P12(BX/2605/62,dated 29th January 1962 and BX/2814/62,dated 13th March 1952)are not in evidence in this case. In the absence of evidence it cannot be presumed that the 1st defendant placed any other order for packing cases of the abovementioned size.The plaintiff has succeeded in establishing only that 240 packing cases of that size could not be sent by it to the 1st defendant as per the orders placed with the plaintiff firm by the 1st defendant firm.