P PARANCHUKUTTY Vs. DHARMASHI MADHAVJI VISRAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit by vendee under a contract of sale of goods against his vendor for damages for non-delivery and also far return of the advance paid by him in connection with the contract. The vendor had approached the court earlier with his own suit against the vendee for damages for non-acceptance as measured by the price fetched at a re-sale and left unsatisfied after set off, of the advance. The two suits were disposed of jointly by the Principal District Munsiff of kozhikode before whom they came on for trial with the result that the vendee's claim succeeded in full while the cross claim of the vendor failed altogether. In separate but connected appeals taken by the vendor, the Subordinate Judge of south Malabar, Kozhikode threw out both the suits. The vendor has acquiesced but the vendee being dissatisfied has come by the appeal herein.

(2.) MR. D. A. Krishnan Warrier, learned counsel for the appellant raised two questions before me firstly that the court below was wrong in reversing the finding of fact entered by the trial court that the vendor-defendant was responsible for the breach and was consequently liable in respect of both limbs of the plaint claim, viz. , damages for the breach and refund of advance. Secondly and assuming the court below was correct in its finding that the vendee was the defaulting party still he was entitled to get the refund. Having heard learned Counsel elaborately and gone through the records I may say at once that the appellant is bound to fail on the first of his contentions but to succeed on the second.

(3.) THE decree of the court below is therefore modified and the suit is decreed to the extent of Rs. 1000 only with interest at 6 per cent from this date. THE plaintiff will get one-half of his costs of this court from the defendant. THE parties will suffer the rest of their costs incurred so far. Decree modified.