GUJARAT TRADERS BARODA Vs. KESHAVLALA DUNGARDAS

JUDGEMENT

(1.) On 19th March, 1998, the counsel who put appearance for the respondent informed to the Court that the respondent No. 1/3 Kantaben Keshavlal Patel expired on 7.3.1992. Prayer had been made for adjournment of the matter to ascertain the names of her heirs and legal representatives.The counsel for the appellant countended that the heirs and legal representatives of Kantaben Keshavlal Patel are already on record as respondents No. 1/1 and 1/2. From the title of the second appeal, I find that the respondents No. 1/1 and 1/2 are the sons of respondent No. 1/3. As two sons of the deceased are on record of this second appeal if some other heirs of that lady are there estate is sufficiently represented and as such it is not necessary to bring on record of this second appeal, the other heirs, if any, of the deceased respondent No. 1/3 The name of respondent No. 1/3 is ordered to be struk off. Office is directed to make necessary correction in the cause title of the second appeal. This second appeal was taken up for hearing.

(2.) This second appeal is directed by the original plaintiff-appellant in this Court under Sec. 100 of CPC against the judgment and decree of Extra Assistant Judge, Baroda in Regular Civil Appeal No. 327/73 under which he has confirmed the judgment and decree of 5th Joint Civil Judge, (J.D.), Baroda passed in Regular Civil Suit No. 1574/67. While admitting this appeal, this Court has framed the following substantial question of law. "Whether the set-off of Rs. 4000/- is rightly given,"

(3.) The facts of the case, in brief are that the plaintiff is a registered partnership firm and dealing in business of hardware, leads and paints etc.. The plaintiff is supplying these goods to the Government and also to the Municipality. The defendant-firm is a partnership firm. This firm is doing the business of commission agent and is supplying the good to different firms, on their personal responsibility. The plaintiff has come up with a case that the plaintiff has the business relation with the defendant firm and is knowing the partners of the defendant-firm. The partners of the defendant-firm had come to the shop of the plaintiff and during the talk, the plaintiff had told the defendant No. 1 to purchase the lead to which the defendant No. 1 had agreed to supply after going to Bombay. On 28. 10.1968, the defendant No. 1 sent a telegram to the plaintiff asking it to send the amount for purchasing the lead. The letter had also followed on 29-10-1964. The plaintiff had made a trunk-call to the defendant No. 1 and agreed to purchase the stock at the rate of Rs.270/-per 100 kgs. The defendant firm had agreed to supply the goods latest before Kartak-Sud-5 and called for Rs.4000/-. The plaintiff sent.Rs.4000/- by draft towards the contract of lead through the broker. However, the prices had gone high and so the defendant firm turned out from its promise and kept Rs. 4000/- with it. The plaintiff had gone to Bombay to purchase the lead but the defendant No. 1 had not supplied the goods and made a breach of contract. Not only this the partner of the defendant firm have also not returned the amount of Rs. 4000/-, so the plaintiff filed a suit against the defendant firm and partner and prayed for decree of Rs. 4000/- as principal amount, Rs. 1472/- towards interest from 3.11.1964 to 27.10.1967 at the rate of 12%. The plaintiff has also lodged criminal complaint regarding criminal breach of trust under Sec. 406 of IPC by Criminal Case No. 460/64 in the Court of JMFC Baroda.