NAGNATH KAULWAR AND SONS Vs. GOVINDRAM SHYAMSUNDER

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the appellant-original defendant has filed this appeal being aggrieved by the judgment dated 22-12-1989 passed by the Additional District Judge in regular Civil Appeal No. 42/1988 whereby the appeal was allowed and judgment and decree passed by the trial Court on 14-1-1988 is set aside and the suit of the respondent-plaintiff is decreed with cost with further direction to the defendant to pay Rs. 11,969/- with interest @ Rs. 12% per annum from the date of the suit till realisation.

(2.) RELEVANT facts are required to be stated as under : the respondent-plaintiff a registered partnership firm filed Regular Civil Suit No. 228 of 1980 against the appellant-defendant claiming damages and notice charges amounting to Rs. 11. 969/- on the contentions that it is carrying on business in the name of M/s. Govindram Shyamsunder under registration No. 568 of 1960-61. The plaintiff-firm deals with grocery articles and also acting as commission agent. The defendant is also a registered firm carrying its business in the name of M/s. Nagnath kaulkar and Sons at Vijayawada dealing in rice, wheat, bran and cake, pulses, chillies and other commodities. The defendant has its commission agent at Nagpur by name makharia and Company. On 13-2-1979 the defendant agreed to sell one wagon consisting of 320 bags of rice of Jagannath quality @ Rs. 148/- per quintal through its agent satyanarayan Makharia and this transaction was confirmed by him by the telegram. That transaction was builty cut transaction. It was duty of the defendant to book the goods in railway wagon after indenting the wagons and to send the railway receipt and hundi of the price through the Bank to the plaintiff from Vijayawada to Wardha. The plaintiff was to pay the amount of Hundi to the Bank and take the railway receipt from it and then obtain the delivery of the goods at railway station, Wardha after production of the railway receipt. The first consignment was received by the plaintiff and there is no dispute whatsoever about the same. The plaintiff contended that the second transaction was dated 16-2-1979 on which date the defendant agreed to sell to the plaintiff one wagon of Jagannath quality rice @ Rs. 149/- per quintal through the same agent and then he had confirmed the bargain by telegram. Thereafter on 26-2-1979 the defendant informed by letter to the plaintiff of having booked one wagon of Jagannath quality rice of first consignment and asked the plaintiff to obtain the railway receipt through the Bank and honour the Hundi. The defendant also in the same letter promised to book another wagon of the second contract as soon as the wagon was made available by the Railway Department and that he would inform the plaintiff accordingly, by telegram. Thereafter the plaintiff obtain the railway receipt on 13-3-1979 on payment of Hundi through the Bank and took delivery of Jagannath rice of 320 bags as per the agreement in respect of the first consignment. Thereafter by letter dated 16-3-1979 the defendant complained of non-availability of the railway wagon and also of gunny bags and that the railway wagons were ordinarily available within a period of one month and gunny bags were also available in the open market. Then by the letter