KIRORIMAL KASHIRAM Vs. B R VENKATACHALAPATHY CHETTIAR

JUDGEMENT

(1.) THE defendant is the appellant. The suit is for return of advance paid by the plaintiff.

(2.) THE plaintiff's case is that he is a grain merchant carrying on business in Salem, that on 28-9-1964, the defendant who is doing business at Bangalore city made an offer to the plaintiff on phone to sell a ready bilty of gram consignment consigned from Uchana to Bangalore at the rate of Rs. 104 per bag 93 kg. gross F. O. R. (Bilticut) dispatching station that the plaintiff accepted the offer and confirmed the same by telegram dated 29-9-1964 directing the defendant to forward the railway receipt along with the hundi drawn in his name through Bank that on the same day at the request of the defendant, he sent a sum of Rs. 10,000 by way of advance, that he sent it by a draft on the Canara Banking Corporation ltd. , enclosed in his letter in full confirmation of the agreement and calling upon the defendant to draw hundi with the relative railway receipt that there was no reply from the defendant, that on 3-10-1964 the plaintiff reminded the defendant stating that the agreement would become automatically cancelled if there was any unnecessary delay in drawing the hundi and that the defendant failed to reply even to this letter. It would appear that there was a Government ban on the export of gram out of the Punjab State. The plaintiff's case that the defendant taking advantage of the rise in prices sent a letter dated 15-10-1964 stating that the goods had arrived and calling upon the plaintiff to send a man with balance amount that the defendant's silence till 15-10-1964 amounted to an implied acceptance of the cancellation of the contract by the plaintiff that he sent a telegram dated 16-10-1964 calling upon the defendant to return the advance paid that the defendant wrote back on 17-10-1964 calling upon the plaintiff to make payment in Bangalore against delivery that the said letter was received by the plaintiff on 20-10-1964 that on 23-10-1964, the defendant sent a telegram stating that he had sold Uchna gram 100 bags to which the plaintiff sent a reply telegram on 23-10-1964 that the defendant sent a cheque for Rs. 6753-31 being the difference between the price for which the contract was agreed to and the price for which the goods were sold after deducting the difference from the advance of Rs. 10,000 that the plaintiff received the said cheque on 27-11-1964 and that immediately the plaintiff sent a telegram calling upon the defendant to remit the balance of Rs. 3246-69 which the defendant refused to comply with, with the result the present suit was filed.

(3.) THE defendant's contention is that the contract was concluded on 24-9-1964 for the sale of one bilty of gram consignment consigned from Uchana to Bangalore at rs. 104 per bag of 98 kg. gross F. O. R. bilticut dispatching station that the plaintiff accepted the offer of the defendant that after giving credit to the advance of Rs. 10,000 the defendant telephoned to the plaintiff stating that he would not draw the hundi but insisted on payment of cash against delivery that after the goods arrived the defendant called upon the plaintiff to send his man with the balance of the sale price that in the first week of October 1964 the prices of gram fell and that the plaintiff in seeking to withdraw from the contract, sent a letter canceling the contract that the defendant was ready and willing to fulfil his part of the contract that the silence of the defendant till 15-10-1964 was due to the non-arrival of the goods and not due to any implied acceptance of any cancellation of the contract that the defendant took delivery of the goods debiting the amount against the plaintiff and sole the goods in open market for a total sum of Rupees 22420-85, that there was a balance of Rs. 6754-11 due to the plaintiff for which the defendant has sent a cheque on the Central Bank of India Ltd. , in favor of the plaintiff for Rs. 6753-31, that the plaintiff is not entitled to recover the balance of the amount claimed and that the defendants are residents of Bangalore and the court at Salem has no jurisdiction to entertain the suit.