MANIAR NAROTTAMDAS DHARAMSHI Vs. BARJATYA TRADERS

JUDGEMENT

(1.) This Second Appeal is filed by the original plaintiff whose suit for recovery of Rs. 6366.6.S P. from the respondent defendant was decreed by the trial Court but on appeal to the District Court Rajkot came to be dismissed.

(2.) A few facts leading to this second appeal are required to be stated. The appellant plaintiff is a partnership firm carrying on business at Rajkot. The respondent defendant is also a partnership firm carrying on its business at Hathras U. P. The case of the plaintiff is that the defendant firm made an offer to purchase a Saurashtra line bilti of one wagon containing tins of groundnut oil. The plaintiff accepted the said offer at Rajkot and accordingly the plaintiff got prepared a railway receipt No. 63696 Invoice No. 2 dated 19-7-64 from Visavadar to Hathras for 528 tins of groundnut oil. The plaintiffs case is that it was agreed with the defendant that a Hundi for Rs. 21811.50P. being the price of the goods aforesaid along with the railway receipt was despatched to the defendant through Punjab National Bank Rajkot. The aforesaid Hundi was dated 19-7-64 the defendant was bound to honour it. But the defendant did not honour the same and thereby committed a breach of the contract. The plaintiff states that the goods of the railway receipts in respect of which the agreement was made were already consigned in wagon No. 41963. The State of Gujarat imposed ban on 22-7-64 under the Defence of India Rules 1962 on the export of groundnut oil outside Gujarat State and hence the goods of the suit consignment were requisitioned by the State of Gujarat. The suit consignment was sold to the Gujarat State Co-operative Marketing Society Ltd. Ahmedabad for Rs. 16609.87 P. and the said amount was credited to the account of the defendant. Sales tax amount of Rs. 427.68 P. was also credited to the account of the defendant. A sum of Rs. 21811.50P being the amount of Hundi and a sum of Rs. 1592.90 P. being the amount of wharfage in all Rs. 23404.40 P. were due from the defendant and giving credit of Rs. 17037.55 P. a sum of Rs. 6366.65 P. had remained due from the defendant and the defendant was bound to pay the said amount to the plaintiff. On 30-10-1964 the plaintiff gave a notice to the defendant but the defendant did not make the due payment and hence the plaintiff filed the aforesaid suit to recover Rs. 6366.65 P. with future interest thereon and costs of the suit.

(3.) The defendant resisted the suit by its written statement Ex. 36. The defendant did not admit that the plaintiff was a partnership firm registered under the Indian Partnership Act. Defendant contends that the Civil Court at Rajkot had no territorial jurisdiction to hear the suit. The defendant denied that it had given an offer to purchase one Saurashtra line bilti of wagon of groundnut oil to Hathras Railway station and the defendant also denied that the plaintiff had accepted any such offer at Rajkot and that there was any such agreement having been entered into at Rajkot and that it had received a Hundi. The defendant admitted that the State of Gujarat imposed a ban on 2-7-64 under the provisions of the Defence of India Rules 1962 on the export of groundnut oil outside the limits of Gujarat State. The defendant denied any liability to pay any amount to the plaintiff. It was contended that the Gujarat State and the Gujarat Co-operative Marketing Society were the necessary parties to the suit. It was contended that before the goods could be delivered the goods were requisitioned by the State of Gujarat and therefore the suit contract had never come into existence. The defendant denied to have committed any breach of the suit agreement as contended by the plaintiff.