INDORE UNITED MALWA NLILLS, INDORE Vs. BASANTILAL

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the Indore Malwa United Mills Ltd., Indore against the firm of Basantilal Suresh Kumar of Sarafa, Ujjain for the recovery of Rs. 16,125 as damages for breach of contract committed by the defendant. The suit was dismissed by the trial Court. This is a plaintiff's appeal.

(2.) PLAINTIFF Company's case is that the defendant had entered into a contract on 2 -7 -1952 for sale of 250 bales of 'Rui' by sample at the rate of Rs. 451 per Khandi, of F.O.R. Indore ready delivery. The defendant sent the sample of the contracted goods through the broker Zabarmal to plaintiffs cotton selector Shree Deshmukh which was approved and it was agreed that the defendant would deliver the goods as per that sample. Zabarmal executed a Chithi in his capacity as the defendant's broker. The goods in bulk was to be examined by the next day i.e., on 3 -7 -1952. Accordingly plaintiff's Assistant Cotton -seclector Ahmadbhai went to Ujjain for selecting and examining the goods in bulk. He was accompanied by the defendant's broker Zabarmal. According to the plaintiff the bales shown to Abmadbhai bore running numbers 1 to 200 and press running numbers 1006 to 1255. He approved the goods thus shown to him. Zabalmal and defendant's man Sagarmal then disclosed that the goods bad been pledged with the Central Bank and that the delivery would be effected after redeeming the pledged goods from tile bank. The plaintiff waited accordingly. Then on 7 -7 -1952 the plaintiff by a letter called upon the defendant to expedite delivery of contracted goods. A copy thereof this letter was also sent to Zabarmal. The latter wrote back, after contracting the defendant, on 11 -7 -1952 informing that Basantilalji of defendant's firm had gone to Bombay and that the goods would be delivered on his ret urn. This letter reached the plaintiff on the 15th of July 1952. As the plaintiff was in need of goods it pressed for delivery of goods through Zabarmal and on 14 -7 -1952 it sent a telegram. On 15 -7 -1952 the defendant firm sent a reply by means of a telegram which was vague and evasive suggesting mis -understanding on the part of the plaintiff. The plaintiff not following the implications of such a reply called upon the defendant to be plain and precise and clear of the misunderstanding suggested by the defendant. This was not done. The plaintiff on these facts alleged breach of contract by the defendant on 15 -7 -1952. The plaintiff later came to learn that the defendant firm had sold away the contracted goods to a third party at a profit. The rate of Rui on 15 -71952 was, it was said, at Hs. 580 per Khandi The plaintiff therefore claimed damages on that basis amounting to Rs. 16,125, each bale weigh half a Khandi.

(3.) ON the basis of these pleadings the trial Court framed issues bearing on the questions as to the existence of contract between the parties for the sale by the defendant of 250 bales of Rui at Rs. 451 per Khandi on 2 -7 -1952 through Zabarmal, Zabarmal being a mercantile agent or broker figuring in the transaction on. defendant's behalf, the breach of the aforesaid contract by the defendant by failing or neglecting to give delivery, the rate of Rui prevailing on the date of breach and the legal validity of the contract in question having regard to the provision of the Cotton Control Order and jurisdiction of Indore Court to try the present suit.