RAMESHWARDAS PODDAR Vs. PAPER SALES LTD

JUDGEMENT

(1.) ON November 18, 1942, the defendants sold to the plaintiff 640 gross, 31 1/2" X 41 1/2", 70 lbs. per gross, in all 44,800 lbs. at as. 11 and pies 9 per lb. Dalmia White Duplex paper. The total purchase price for the goods came to Rs. 32,900, and the plaintiff paid that price to the defendants on that very day. ON that very day also the defendants handed ever to the plaintiff a delivery order issued by the Dalmia Cement and Paper Marketing Company, Limited, in favour of the defendants bearing No.370 dated November 18, 1942, for 640 gross.

(2.) ON the same day, namely, November 18, 1942, the plaintiff sold the goods to another firm called Pavri Sons & Co, and the plaintiff in his turn handed over the delivery order to Pavri Sons & Co. endorsing thereon as follows :- "Please deliver to bearer." Messrs. Pavri Sons & Co. failed to obtain delivery pursuant to this order from the Dalmia Cement and Paper Marketing Company, Limited. Messrs. Pavri Sons & Co. handed back the delivery order to the plaintiff. The plaintiff thereupon wrote to the defendants pointing out that no delivery had been obtained under the delivery order and asking for immediate delivery. The defendants asked the plaintiff to attend at the godown of the Dalmia Cement and Paper Marketing Company, Limited, on November 21, 1942, to take delivery of the goods. The plaintiff did so, but failed to obtain delivery. The plaintiff further waited at the defendants instance till November 27, 1942, but no delivery was given to him, and he has filed this suit for the return of the price paid by him, namely, Rs. 32,900 on the basis of a total failure of consideration and also asking for damages for breach of contract on the part of the defendants.

(3.) I, therefore, hold that in failing to give delivery of the goods purchased by the plaintiff from defendants-and the failure is not disputed or denied-the defendants have committed a breach of the contract, inasmuch as there is a total failure of consideration, because the plaintiff has failed to obtain the goods which he purchased and for which he has paid the purchase price The plaintiff is therefore entitled to the return of the purchase price, viz. Rs. 32,900.