THE STANDARD FIRE WORKS INDUSTRIES, THROUGH ITS MANAGING PARTNER SRI A. CHELLADURAI Vs. POLITE PER AGENCIES THROUGH ONE OF ITS PARTNERS, SRI KARDAZLAL KHILNARI AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No. 72 of 1969 on the file of the Court of the Subordinate Judge of Ramanathapuram at Madurai is the appellant. It is a registered partnership firm carrying on business in fire works and litho works at Sivakasi under the name and style of "the Standard Litho Works". The first respondent herein is a partnership -firm carrying on business in fountain pens and ball -point pens having its head office at Calcutta and branch office at Madras, the second and the third respondents being its partners. The appellant herein instituted the suit for recovery of a sum of Rs. 11, 594.51 with interest. Admittedly the first respondent herein placed orders with the appellant for delivery of 75,000 calendars. These orders are dated 16th December, 1968 and they have been marked as Exhibits A -6, A -7 and A -8, Exhibit A -6 being Order No. 10151 for 15,000 calendars, Exhibit A -7 being Order No 10152 for 30,000 calendars and Exhibit A -8 being Order No. 10154 for another 30 000 calendars. They all originated from a telegram sent by the first respondent on 14th December, 1968, marked as Exhibit A -10. That telegram stated "supply additional 15,000 on 28th instant. More thirty thousand delivery wanted, 15th January and thirty thousand January last week." The word "more" has to be understood in the context of the first respondent having earlier placed orders with the appellant for calendars and having received them. It was the understanding of the parties that this telegram received from Calcutta with regard to the supply of calendars has to be confirmed by the Madras office of the first respondent, because the calendars had to be supplied only to the Madras office. As a matter of fact, such a confirmation was actually sent only on 4th January, 1969 as evidenced by Exhibit A -9, 30 000 calendars were despatched on 29th January, 1969, another 30,000 calendars were despatched on 5th February, 1969 and 15,000 calendars were despatched on 10th February, 1969. The calendars despatched last, viz., 15,000 on 10th February, 1969, were taken delivery of and paid for by the first respondent, but the 60,000 calendars despatched, i.e., 30,000 on 29th January, 1969 and 30,000 on 5th February, 1969, were not taken delivery of by the first respondent and therefore, the appellant had to re -book the same and thereafter, the appellant Instituted the present suit for recovery of the amount mentioned therein, made up of Rs. 10,422 -36 being the amount covered by the two bills dated 30th January, 1969 and 6th February, 1969 and a sum of Rs. 291.75 said to be the expenses incurred by the appellant for booking and re -booking and a sum of Rs. 867.30 being the demurrage alleged to have been suffered by the appellant herein.

(2.) SEVERAL defences were taken by the respondents herein and they are reflected in the following issues framed by the trial Court:

(3.) THE appeal itself was filed on 24th July, 1971 and on 4th November, 971 the appellant also filed an application in C.M.P. No. 6727 of 1972 for amendment of the plaint to get over the defect pointed out by the learned Subordinate Judge.