GRANDHI SUBRAMANAYAM Vs. VISSAMSETTI VISWESWARA RAO

JUDGEMENT

(1.) Questioning the correctness of a Division Bench decision of this Court in Capatain S.M. Ansari v. Dr. Vejendla Subba Rao (1975) 2 APLJ (HC) 136 a Division Bench presided over by one of us (Bilal Nazki,j.) referred this letters patent appeal to the Full Bench.

(2.) The fact of the matter lies in a very narrow compass. The defendant is the appellant. On 17-9-1974 the parties entered into an agreement in terms whereof the plaintiff respondent agreed to purchase two rolling machines from the defendant for a sum of Rs.53,000/-. Prior thereto the plaintiff had inspected the said two rolling machines and paid a sum of Rs.10,000/- each on 17-9-1974 and 28-9-1974.the defendant was required to deliver the machines upon the receipt of the balance amount of Rs.33,000/-. The plaintiff made an allegation to the effect that after a month he found that the machines which were inferior and worn out, were sought to be sold in place of machines which were agreed to be sold. He made his protest and asked for refund of Rs.20,000/-. A notice dated 8-6-1977 marked as Ex. A.2 was issued by the plaintiff wherein the said sum of refund was claimed with interest at 12% per annum. The defendant sent a reply dated 20-6-1977 disputing the allegations made therein and he expressed that he is ready and willing to deliver the mahcines against the pyment of balance of purchase price of Rs.33,000/- together with interest from the expiry of one month from the date of contract and that the contract cannot be unilaterally cancelled or rescinded by the plaintiff.

(3.) The plaintiff respondent filed a suit on 20-9-1977 for refund of the said amount of Rs.20,000/- together with interest. The learned trial Judge framed inter alia the following issue which is relevant for the purpose of answering the reference. Whether the plaintiff is entitled for refund of the advance paid?