INDORE MALWA UNITED MILLS Vs. RAMKARAN GHISSLAL

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 nondelivery of part of the cotton seed produced by the defendant in his textile 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 production of 800 manis or (3200 bags ). By the time the defendant persisted in his refusal in spite 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 questions 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 out 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 them 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.) THE facts of the case are the following: As a textile enterprise, the defendant also gins cotton, with the result that in the season which is usually in October, november and December, he has in his hand quantities of cotton seed. For the season of 1948, he entered into a contract with the plaintiff to deliver to him the cotton seed of that season which consisted of three varieties (about two of which there is no controversy) the third, the cheapest, which variety known to be 'malvi' at the rate of Rs. 45-12-3, to be delivered at the Mills at Indore. The two other varieties were to be delivered at a godown at Sanawad. While it is common ground that the entire quantity of the season of the two other varieties was to be sold, in regard to this variety i. e. 'malvi' there was a difference. The plaintiff contended that he was entitled to purchase the entire production which he estimated at 3200 bags i. e. 800 manis (each mani being six maunds); the defendant contended that only 300 manis, in other words 1200 bags were agreed to be sold The prices were going up; and by the end of the season i. e. the middle of December 1948, the conventional date being Kartik Sudi Purnima, he had delivered as against an advance and further payment a quantity of 300 manis or 1200 bags. The plaintiff noticed the defendant on 19-1-1949 calling upon him to deliver the rest of the cotton seed of the season of this variety; but he avers that he had made oral requests, with no success. The defendant was silent till the 1st March, when he replied that the agreement was to deliver only 300 manis, which had been done, and not the entire production of the season. The plaintiff thereupon filed the suit on his estimate of a total production of 3200 bags or 800 manis claiming that 2000 bags or 500 manis had remained undelivered. The price on 1-3-1949 was rs. 12-3-9 per mani in excess of the agreed price; he has claimed this amount with interest and costs.