P M NAINA MOHAMMED ROWTHER Vs. KAPPORCHAND JAIN

JUDGEMENT

(1.) The plaintiff in O.S. No. 160 of 1976, District Munsif Court, Kuzhithalai, who succeeded in part before the trial Court and lost before the lower appellate Court, is the appellant in this second appeal. The appellant instituted the suit for the recovery of a sum of Rs. 3,088, comprised of a sum of Rs. 2,000 deposited by him and Rs. 1,088 towards loss of profits under the following circumstances.

(2.) On 28.1.1976, a contract was entered into between the appellant and the respondent through the second defendant in the suit for the purchase of white jawar from the respondent at Rs. 115.50 per bag of 100 kgs. A sum of Rs. 2,000 was paid by the appellant to the respondent's deposit. On arrival of the goods in Tiruchi, the appellant was informed of the same and he ascertained the condition and quality of the jawar with some members of the Chamber of Commerce at Manaparai, when it was found that the jawar actually consigned was inferior in variety and not white jawar contracted to be supplied and mixed with chaff, etc. A certificate regarding the quality and the condition of the jawar was also claimed by the appellant to have been issued by the Chamber of Commerce, Manaparai. Realising that the quality of the jawar supplied did ; not conform to the quality agreed to be supplied, the appellant appears to have requested the 2nd defendant to sell the goods at Rs. 100 per bag; but the 2nd defendant was not agreeable for this course. Subsequently, on 10.3.1976, the 2nd defendant sent a telegram to the appellant saying that the jawar had been sold at Rs. 96 per bag at Trichi. According to the case of the appellant, the respondent committed breach of contract in supplying inferior quality goods and not what was agreed to be supplied, though the appellant was ready and willing to take delivery of the jawar conforming to the quality agreed to be supplied. A notice was also issued by the appellant on 29.6.1976, charging the respondent with breach of contract and claiming damages. Since that was repudiated by the respondent, the appellant instituted the suit for recovery of Rs. 3,088 as stated above.

(3.) In the written statement filed by the respondent, it was contended that the contract was entered into on 28.1.1976, according to which, against the presentation of the railway receipt and the hundi through Bank, payment should be made and delivery of goods should be taken and in accordance with that, the goods were despatched on 4.2.1976 to the appellant and the appellant was also informed of the same on 5.2.1976. The further case of the respondent was that the appellant did not pay and take delivery of the railway receipt with a view to get the goods cleared. However, on 21.2.1976, the appellant gave a telegram praying for ten days time; but, did not take delivery and the appellant had committed breach of the contract and therefore, not entitled to the relief of refund of deposit amount. The respondent claimed that he had sustained damages to the tune of Rs. 6,710 and after adjusting the sum of Rs. 2,000 paid by the appellant, the appellant had to pay the respondent a sum of Rs. 4,710 in respect of which, the respondent reserved his right to file a separate suit. Maintaining that the quality of goods despatched was according to the terms of the contract and stating that the appellant had repudiated the contract in view of the falling market and that the Court had no jurisdiction to entertain the suit, the respondent prayed for the dismissal of the suit. In a separate written statement, filed by the 2nd defendant, it disclaimed liability even on the terms of the contract and charged the appellant with having committed breach of the contract.