VOONA SRIRANGANAIKULU Vs. PATCHIPULUSU VENKATASUBBARAO AND OTHERS

JUDGEMENT

(1.) This appeal is preferred by the 2nd defendant in the suit. The facts in brief are: Plaintiffs deal in cloth at Srikakulam. The 1st defendant has a business place at Parvathipuram. He was the whole-sale supplier of goods with whom were linked the plaintiffs in those days of control. The 1st defendant sent an intimation to the plaintiffs that a bale of cloth was ready for dispatch and asked for a remittance of the cost of about Rs. 800/- and odd. Plaintiffs complied and wrote Exhibit B-1 asking the 1st defendant (seller) to kindly send the bale immediately. The seller accordingly entrusted the bale to a carrier, the 2nd defendant, who was usually carrying bales from the business place of the seller (1st defendant) to various buyers who were linked with that particular seller. The carrier passed a voucher to the seller acknowledging the entrustment of the goods, The bale however, was not delivered to the buyers (Plaintiffs). Hence the suit for recovery of the amount paid by the buyers for the bale.

(2.) Plaintiffs as buyers asked for relief in the alternative, primarily against the seller, the 1st defendant, or in the alternative against the carrier the 2nd defendant The trial Court decreed the suit against the seller and dismissed the claim against the carrier. The seller preferred the appeal. The buyer filed no appeal. The Appellate Court held that the carrier (2nd defendant) was liable and exonerated the seller (1st defendant). The carrier has, therefore, preferred this second appeal.

(3.) Two questions have been argued before me: (1) that the carrier is not liable to the plaintiffs by reason of the absence of a privity of contract; if at all there is a liability on the carrier, it may be in favour of the seller, but under no circumstances to the buyers; and (2) that the buyers not having preferred an appeal or a cross-appeal before the First Appellate Court, they could not have taken advantage or an appeal filed by the seller and urge for relief against the carrier. So far as point No. 1 is concerned, the position is this. The buyers gave definite instructions under Exhibit B-1 that the bale might be dispatched to them for delivery at Srikakulam which is the buyers' place. We are not concerned with what was obtained as a matter of practice in the trade. The fact remains that the seller had no objection to send the bale to Srikakulam. He chose the 2nd defendant as the carrier and entrusted the goods to him. The question is whether the choice of the carrier was made by the seller on his own behalf or on behalf of the buyers. Ordinarily, when a person chooses another for doing any work, the presumption is that he has constituted the latter as his own agent; but in dealing with sale and delivery of goods we have a specific provision, Section 39 of the Indian Sale of Goods Act which provides that when the seller has the authority to or been required to send goods to the buyer he can choose a carrier on behalf of the buyer whether the carrier has been named or not by the buyer. In other words, whenever there is an authority or request to send goods, there is the implied authority to make, on behalf of the buyer, the choice, of a person or agent to carry the goods. There is the further provision that when entrustment is thus made by the seller to the carrier, it would amount to delivery to the buyer himself prima facie. In other words, this inference should follow unless there be something in the authorisation or the request made by the buyer to the contrary. It is open to him to stipulate that the responsibility for the delivery of the goods would last till actually delivery is effected to the buyer himself. What is provided for in Section 39 (1) is only a presumption and it is rebuttable by the actual terms of a contract. In this case, absolutely no contract is pleaded which would displace the prima facie' liability imposed by the section.