INDIAN TARPAULINS INDUSTRIES Vs. G KRISHNAMURTHI AND PARTIES

JUDGEMENT

(1.) THE plaintiff is the appellant herein.

(2.) THIS appeal is directed against the judgment and decree of the learned XIV Assistant City Civil Judge, Madras, under which the suit filed by the appellant herein for a money decree was dismissed.

(3.) THE learned Counsel appearing for the appellant would submit that the lower Court has not properly considered the entire evidence both oral and documentary; that it is pertinent to note that the order placed by the first defendant under Ex.A1 was only in the nature of an offer, and the same was accepted only at Madras; that the goods were despatched from Madras; that it is pertinent to note that the first defendant has received the way bill as acknowledged in Ex.A2 on the reverse side and admitted the same in evidence, and as such the payment of freight having been made by the first defendant, the plaintiff was only acting as an agent of the first defendant in having undertook to book the goods with the transport company for onward transport to and delivery at Kakinada, and consequently, the goods stood appropriated towards contract at Madras; that it was agreed between the parties that the payment should be made at Madras, and thus, for all these reasons, the part of cause of action admitted arose at Madras; that in a case where the goods were sold and delivered, one of the factors to be proved is delivery; that in the instant case, when the first defendant had admitted the receipt of way bill as per endorsement made on the reverse of Ex.A2, it can be well inferred that the first defendant has taken delivery of the goods; that it has to be noted that the acknowledgement of delivery of such a document would amount to the acknowledgement of delivery of goods, and thus, the plaintiff has discharged the burden of delivery of goods; that the inference was inevitable that the first defendant had taken delivery of 25 tarpaulins as invoiced under Ex.A3; that having received the lorry receipt, the first defendant cannot avoid its liability to pay the same; that it is pertinent to point out that the first defendant had issued two cheques for Rs.30,205/- equivalent to the value of the 25 tarpaulins, and as such, the inference was inevitable that the first defendant has received, checked and accepted the goods and then only made the payment; that the cheques were dishonoured not for other reason but for the reason of want of funds; that the second defendant was an employee only for the purpose of booking order and he was not either a selling agent or a buying agent; that Ex.B1 was a cooked up document prepared for the case; that the first defendant must satisfy the Court about the right of rejections and thereafter about the actual rejections and return; that the gap between the delivery and the date of dishonour of cheques would admittedly lead to the inference of acceptance; that in Ex.A3 invoice, it is mentioned that all payments should be made by crossed, ordered A/c Payee cheque/DD/MO only, and hence, the judgment and decree of the lower Court have to be set aside and the suit be decreed with costs.