ALAPATY RAMAMOORTHY Vs. POLISETTI SATYANARAYANA

JUDGEMENT

(1.) These three appeals have been preferred respectively by the plaintiff, by the first defendants and by defendants 2 and 4 and arise out of the plaintiff's suit to recover Rs.10,192-9-0 from the defendants, which has been decreed in part by the lower Court. The plaintiff is a registered firm doing business at Vijayawada under the name and style "Alapati Ramamoorthy Geli Krishnamurthy".

(2.) The first defendant is a businessman at the same place and defendants 2 to 4, who are merchants residing at Guntur, Rajampet and Vijayawada respectively, are alleged in the plaint to be the first defenant's confederates. The thir defendant died during the pendency of the suit and defendants 5 to 8 are his legal representatives. The claim for Rs.10,192-9-0 against defendants I to 4 falls under three heads : (1) Rs. 5,840-10-0 being the price of 25 bales of gunnies purchased by the first defendant from the plaintiff and delivered to him on 22nd April, 1946 ; (2) Rs. 2,625 being the total of the damages for breach of contract by non-delivery of the goods under four contracts of sale of gunnies entered into between the plaintiff and defendants I to 4 respectively on 4th April, 1946 and (3) interest at 12 per cent, per annum on the aforesaid amounts until the date of the suit. The plaintiff's case was that although the four contracts mentioned under the second head were entered into in the names of defendants 1 to 4 respectively, the real contracting party was the first defendant alone and defendants 2 to 4 were merely name-lenders. On this allegation, he asked for a decree for the entire amount of the damages in respect of all the four contracts, together with interest, against the first defendant and for Rs. 750, Rs. 562-8-0 and Rs. 562-8-0 out of the amount, together with interest, in respect of 3 of the contracts against the respective defendants 2 to 4 jointly and severally with the first defendant. The only defence of the fist defendant as regards the Rs. 5,840-10-0 under the first head which was claimed from him alone was that he had made a payment of Rs. 3,300 on 7th April, 1946, which the plaintiff had not given credit to. He admitted his liability for the balance and deposited Rs. 2,863 in the lower Court during the pendency of the suit as the amount due from him inclusive of interest. As regards the second head of the claim, the defendants denied that defendants 2 to 4 were name-lenders for the first defendant and asserted that defendants 1 to 4 were the respective contracting parties under the four contracts. Their defence, so far as it is material to these appeals, was that they were under no obligation to deliver the goods as the plaintiff did not demand or offer to take delivery and that the plaintiff himself had therefore committed breach of the contracts. The learned Subordinate Judge accepted the contentions of the defendants as regards the first defendant's payment of Rs. 3,300 and as regards defendants 1 to 4 being severally liable under their four respective contracts. But he held that in view of the letters admittedly passed by the plaintiff to the defendants in respect of the four contracts, on the same terms as Exhibit B-1 passed to the fourth defendant, there was no obligation on the part of the plaintiff to demand delivery and that the defendants are liable to pay damages at the rate of Rs. 2-8-0 per bale of gunnies as claimed in the plaint. He also upheld the plaintiff's claim based on trade custom for interest at 12 per cent, per annum till the date of the suit. On these findings, he decreed the suit against defendants 1, 2 and 4 and the estate of the third defendant in the hands of defendants 5 to 8 for Rs. 3,713 (Rs. 2,863 plus 850) Rs. 850, Rs. 637-8-0 and Rs. 637-8-0 respectively, together with subsequent interest at six per cent, and proportionate costs.

(3.) In the plaintiff's appeal, the dispute is confined to the first head of his claim and interest thereon till the date of the suit. The plaintiff's contention is that the lower Court erred in giving credit to the payment of Rs. 3,300 made by the first defendant on 7th April, 1946, because it was a payment not to the plainiff firm but to a different firm known as "Alapati Ramamoorthy Gelli Krishnamurthi & Co." It is stated by the plaintiff's learned counsel, without contradiction although no evidence was adduced on the point at the trial, that only five of the partners were common to the two firms and that the sixth partner of each is different. The first defendant raised no dispute as to the fact that the plaintiff firm styled "Alapati Ramamurthy Gelli Krishnamurthy" is different from the firm styled " lapati Ramamurthy Gelli Krishnamurthy & Co.". His case was merely that he became aware of this fact only after the present suit was filed on 8th April, 1948. He had been dealing with both the firms under the impression that there was only one firm, Alapati Ramamurthy Gelli Krishnamurthy & Co., and was maintaining a single khata under the head 'Alapati Ramamurthy Gelli Krishnamurthy & Co.' for all the dealings. But after the institution of the present suit, he separated on 1st July, 1948, the items relating to the plaintiff-firm and accordingly contends that the payment of Rs. 3,300 on 7th 7th April, 1946, goes along with his liability for Rs. 5,840-10-0 incurred on 22nd April, 1946.