RADHESHYAM RADHAKISHAN Vs. JAGAT NARAIN FATEH CHAND

JUDGEMENT

(1.) THIS first appeal has been preferred by the defendant against the judgment and decree of the IV Addl. District Judge, Jabalpur, in Civil Suit No. 33-A of 1958, decided on 4-11-1958, where by a decree for Rs. 12, 524/-/9 has been passed in favour of the plaintiff against the defendant with proportionate costs and interest.

(2.) THE facts which are not disputed at this stage are that Fatehchand Puranmal is a joint family firm carrying on business at Burhar. The three plaintiffs who have brought the suit are the members of the joint Hindu family owning this firm. They sent in the month of November, 1956, to the defendant Radheyshyam who carries on his business in the name and style of 'shrigopal Ra-meshwardas at Gandhiganj, jabalpur, 142 bags of linseed and 91 bags of Ramtilla, to be sold in his Adat on instructions being given by the plaintiffs or to be returned to them if so desired. The goods remained unsold up to 1-7-1957. On that date, the plaintiff No. 3 jankiprasad who has been described in the plaint as the person managing the joint family business, went to. the shop of the defendant accompanied by one gayaprasad and demanded delivery of the goods to be given back to to the plaintiffs. The delivery was refused to be given by the defendant; firstly, on the ground that the goods were intended to be sold in the defendant's Adat and, therefore, there was no question of the goods being returned, and secondly, on the plea that the defendant did not know Jankiprasad and the goods could be delivered only when a letter of authority was produced and a discharge receipt was duly, passed. After this refusal, the plaintiffs immediately sent a telegraphic notice (Ex. P-6), dated 17-1957, through Shri K. B. Sinha, Advo-cate. Two more notices were also sent. The are Exs. P-9 and 14 on record. The receipt of these notices is admitted. The replies to these notices had been given by the defendant and the are on record.

(3.) THE case of the plaintiffs is that their firm is a Hindu joint family firm, the business of which is managed by plaintiff No. 3, Jankiprasad. Jankiprasad had sent these goods to the defendant under railway receipts, dated 24-11-1956, accompanied by the letter Ex. P-1; that he fully knew Jankiprasad from before and the demand for receipt and the production of proper authority in favour of jankiprasad for receiving the goods made on 1-7-1957 was merely a pretext adopted by the defendant for the purpose of not delivering the goods; that the plaintiffs had entered into a contract of sale of these goods with Gayaprasad and that on account of the attitude adopted by the defendant of not delivering the goods though repeated requests were made, the plaintiff-firm was ultimately required to pay Rs. 700/- to Gayaprasad as damages on account of non-delivery of the goods by the defendant. The plaintiffs further averred that Rs. 1128/14/9 were due from the defendant on account of old dealings between the parties. In the last notice, Ex. P-I4, which was sent on 25-7-1957, the plaintiffs claimed price of the goods as damages and interest. Details of these items are given in para 9 of the plaint. The total claim which was made was for Rs. 13,340/ 7/3. It included the old balance of Rs. 1128/14/9 referred to above.