PL PALANIAPPAN Vs. JANKIRAM MILLS LTD

JUDGEMENT

(1.) THE above appeal has been filed under clause 15 of the letter Patent against the judgment of a learned single Judge of this Court dated 5. 7. 1991 in A. S. No. 432 of 1981 rendered in common with a connected appeal arising out of the same suit, where under the learned single Judge has chosen to dismiss the appeal confirming thereby the judgment and decree of the learned trial Judge dated 28. 8. 1980 in O. S. No. 624 of 1977, decreeing the suit claim for recovery of a sum of Rs. 22,691. 04 with interest at 6% per annum on rs. 21,889. 19 from the date of plaint till the date of realisation.

(2.) THE short resume of facts necessary for appreciating the questions addressed before us are that the first defendant was said to have approached the plaintiff through the second defendant for supply of yarn from the plaintiff-Mills, to which the plaintiff agreed and the second defendants sent a letter of confirmation of sale for supply of 51 bales of N. F. 2/17 yarn at the rate of Rs. 62. 50 Ex. Mills for 5 kilograms to be supplied in January, 1965 along with a covering letter with a copy to the first defendant. THE plaintiff was said to have sent a contract form to the first defendant for his signature, which was also singed by the first defendant on 7. 1. 1976 and returned to the plaintiff. On 5. 1. 1976 the said 51 bales of yarn as per the request of the defendants was sent through lorry in 10 invoices. One invoice for six bales and the other invoices for five bales each. THE receipts and bundles were also said to have been sent through the Indian Bank, Rajapalayam to the Indian Bank, Devengapet Branch, Coimbatore , to be delivered to the first defendant on payment of the invoice amount. THE first defendant retired three invoices and did not retire the other invoices, inspite of repeated requests over phone, telegram and letters. In the meanwhile, another request appears to have been made from the defendants for another 50 bales of 2/n. F. 16 yarn from the plaintiff Mills. THE second defendant was said to have signed the confirmation letter with a covering letter dated 21. 1. 1977 for supply of 50 bales at the rate of Rs. 66 per Kg. Ex. Mill, sales tax, charity etc. THE plaintiff appears to have agreed to readily deliver them in the same month, namely, January, 1977 and acting on the confirmation letter of the second defendant and the telephonic conversation with the first defendant on 22. 1. 1976, the plaintiff sent the first consignment of 15 bales to the first defendant on 23. 1. 1976 and the copy of invoices, despatch advice etc. were sent to the first defendant. THE original invoice and the related documents were sent by the plaintiff through the Indian Bank, rajapalayam to the Indian Bank, Devengapet, Coimbatore , the first defendant received the bill intimation from the Indian Bank. THE plaintiff also appears to have sent another despatch of 10 bales on 28. 1. 1976 and another 10 bales on 29. 1. 1976 and further 10 bales on 31. 1. 1976 and yet another 5 bales on 3. 2. 1976 to the first defendant and sent the usual records to him through the Indian Bank. THE plaintiff came to know subsequently that the invoices were not retired and the plaintiff sent a telegram on 6. 2. 1976 and letter on 9. 2. 1976 to the first defendant requesting the first defendant to retire and

(3.) MR. Parthasarathy, learned counsel appearing for the appellant while reiterating the stand taken before the Courts below on behalf of the appellant-first defendant contended that on the materials placed on record, the learned trial Judge as well as the learned first appellate Judge could not have legitimately come to the conclusion that the transfer of property in the goods despatched passed in favour of the appellant entitling the plaintiff to have the goods resold at the risks and loss of the first defendant. The learned counsel further contended that having regard to this vital fact that there had been no transfer of property or title in the goods in question in favour of the appellant on the date of the alleged breach, the plaintiff, if at all, would be entitled to the difference between the sale price and the market rate for the goods prevailing as on the date of breach and the question of recovering the difference between the sale price and the price realised on account of the resale of those goods, does not arise in law. Per contra, MR. R. Thiagarrajan, learned senior counsel for the first respondent-plaintiff while adopting the reasons assigned by the learned single Judge as also by the learned trial Judge, contended that the evidence adduced in the form of documents as also oral evidence proved beyond reasonable doubt that the transfer of property in the goods despatched has passed in favour of the appellant even when they were despatched through lorry at the request and on the directions and instructions emanating from the defendants and consequently, the right of resale exercised and the claim made as a consequence thereof for the loss suffered was quite in accordance with law and has been rightly countenanced by the learned trial Judge as well as the learned first appellate judge and no exception could be taken to the findings recorded either on account of any infirmity in law or on any vital facts pertaining to the appreciation of the claim.