KANHAIYALAL PARASHRAM Vs. ABDUL AZIZ

JUDGEMENT

(1.) THIS appeal is against the judgment and decree of First Civil Judge, Sagar, decreeing the plaintiff's suit for damages in full for a sum of KB. 5,150 -12 -0.

(2.) THE plaintiff carries on the business of importing and selling potatoes at Sagar in the name and style of 'Abdul Aziz, Abdul Gaffar'. His telegraphic address is 'Roshan Manzil'. The defendant is a dealer in potatoes at Simla, one of the main centers for exporting potatoes. The defendant's telegraphic address is 'Honesty'.

(3.) THE defendant denied the claim on many grounds. He contested that no contract between the parties had been concluded as his acceptance was merely conditional. It was urged that at Simla there prevailed a trade custom to the effect that unless and until advance amount was paid at the rate of Rs. 1,000 per wagon, the contract could not be said to have been formed between the parties. It was also urged that the goods were not appropriated towards the contract. A further plea to the same end was that the defendant had offered alternatives to the plaintiff by his telegram, dated 29 -11 -1955, and the contract could be completed only after selection of one of the two methods suggested, which was not done early. Lastly, it was contended that even if it be held that the defendant committed breach of contract, this breach was committed on 9th or 10th of December 1955 when the defendant failed to load the goods according to what he had stated in his telegram (Ex. P -7) of 29 -11 -1955. It was urged that the plaintiff bad failed to make appropriate pleading with regard to the date of the breach of contract and no evidence was given in the case, to prove the rates which were then prevailing in the market on the date of the alleged breach of contract. He also stated that the Sagar Court had no jurisdiction as the cause of action wholly arose at Simla. On these grounds, the defendant pressed for dismissal of the plaintiff's suit.