COTTON CORPORATION OF INDIA LIMITED HAVING ITS REGD OFFICE AT BOMBAY AND ONE OF ITS BRANCHES MADRAS PRESENTLY FUNCTIONING COIMBATORE Vs. M/S KOTHARI [MADRAS] LIMITED MADRAS

JUDGEMENT

(1.) THE plaintiff who was unsuccessful before the learned trial Judge filed the above appeal by assailing the decree and judgment dated 14.8.1992 made in C.S. No.78 of 1982, which was filed praying for a decree directing the defendant to pay a sum of Rs.36,60,316.10 together with interest at the rate of 20 percent per annum on monthly rests basis on a sum of Rs.31,94,920.70 from the date of plaint till the date of decree and thereafter at the said 20 percent per annum with monthly rests as of commercial cause.

(2.) THE undisputed facts of the case are as follows: THE plaintiff/appellant was the canallising agent for importation of cotton indented on them by the cotton mills. THE defendant/respondent mill originally placed orders for importation of 1,000 bales of Brazillion, 340 bales of Mexicon, 500 bales of Central American and 1,500 bales of Central South American cotton, in total 3,340 bales and as such an agreement under Ex.P-5 dated 18.3.1977 has been entered into between the plaintiff and the defendant. THE important clauses in the agreement among other things are that if the defendant fails to take delivery of the goods, the plaintiff would be entitled to sell the goods to any other party by private sale or by auctions and any loss suffered by the plaintiff would be on account of the defendant and they would be liable to pay the plaintiff on demand; the defendant would have to pay carrying charge at 2 1/2 percent to the plaintiff per thirty days from the date of arrival of steamer if the defendant fails to make payment and take delivery of the goods immediately on arrival; notwithstanding anything to the contrary contained in the agreement, the property and risk in the goods shall pass to the defendant on shipment and the sale is complete thereon; that in the event of the foreign suppliers supplying cotton of quality and type other than the quality and type of cotton agreed to be imported and sold, the defendant would have the option either to accept such cotton in substitution of the cotton contracted for or to cancel the agreement; in the event of acceptance such cotton, all other terms and conditions of the agreement would remain in force; and in the latter case, the agreement would be cancelled without any consequence to any of the parties thereto. It is also an admitted fact that the defendant under Ex.P-2, dated 30.3.1977 amended the indent made on the plaintiff to the following extent:

(3.) THE learned senior counsel appearing for the respondent argued that what was transhipped by the plaintiff was totally different than the one indented for with the plaintiff by the defendant and as per the agreement, if the imported goods are not in conformity with the indent made on the plaintiff, the defendant is entitled to cancel the same and as such, the defendant cancelled the agreement by Ex.P-24, dated 18.11.1977. In such circumstances, the plaintiff is not entitled to any amount by way of damages. THEre is absolutely no material to prove the quantum of damages as claimed by the plaintiff. He further submitted that at no point of time, the defendant has accepted the "Nicaragua cotton" and all the correspondence relied on by the learned counsel for the appellant would not in any way advance the case of acceptance of Nicaragua cotton by the defendant and prayed for dismissal of the suit.