INDORE MALWA UNITED MILLS, LTD. Vs. RAMKARAN

JUDGEMENT

(1.) THIS is an appeal by the Defendant, from the judgment of the learned Civil Judge decreeing the Plaintiff -Respondent's suit for damages for non -delivery of part of the cotton seed produced by the Defendant in his taxtile mill, in the ginning season of 1948, and contracted to be sold to him. The allegation was that having agreed to deliver all the cotton seed of that season of the variety called 'Malvi' at an agreed price, the Defendant actually sold only 300 Manis (or 1200 bags) out of a to be production of 800 manis or (3200 bags). By the time the Defendant persisted in his refusal inspite of the Plaintiff's notice, the price had gone up; the latter claimed and obtained a decree for damages on this breach on the basis of the price on the day of the final refusal which was 1 -3 -1949. The following question arose for consideration; (i) whether the agreement was for the delivery of 300 manis only or for the entire production of the season; (ii) whether the quantity withheld was 2000 bags (weight 500 manis) as given rut by the Plaintiff; and (iii) whether the difference in price was as set out by the Plaintiff. But the Defendant restricted his attack to the first only. In appeal it is urged that besides this the Appellant is entitled to put the Plaintiff to the strictest proof on the other issues as well, as those relating to the quantity, and the date, the price on which is to be basis for calculating the damages.

(2.) THOUGH the issues are in essence ones of fact, the position taken by the Defendant in the lower Court have in a sense made then mixed ones calling for the examination of the principles relating to the drawing of adverse inference from a party's withholding the best evidence in its possession, its delay in replying to the demand of delivery of sold goods, and its failure to make an express denial of the averments of the opposite party.

(3.) AS already mentioned, the Defendant joined issue only on the crucial term of the agreement relating to the quantity. His case is based on register on which the agreement was entered, and signed by the Plaintiff, which at the time, of the written statement showed "about 300 Manis" entered in the appropriate column. He did not join issue on other averments.