VISHAM AND COMPANY Vs. ASHOK KUMAR AJAY KUMAR

JUDGEMENT

(1.) This appeal is by the defendant against whom a decree of Rs. 10,581.57 P. as damages for breach of contracts has been passed by the Trial Court with interest.

(2.) Briefly staled the facts of the case are that the appellant/defendant entered into three contracts with the respondent/plaintiff for purchasing Jwari from Dayal Corporation, Madras. These contracts are Ex. D-l dated 21-1-1975 and Ex. D-2 and Ex. D-5, both dated 22-1-1975. Under the contracts a wagon load of jwari was to be supplied by the respondent/plaintiff to the appellant/defendant. The goods were to be dispatched till February-after buyer's option. The dispatch station was Raipur or line to Salcitaure. The appellant/defendant sent a telegram Ex. P.-4 to the respondent/plaintiff which reads - "Received sample dispatch goods immediately." In pursuance to the said telegram, the respondent/ plaintiff dispatched a wagon load of jwari under Ex. P.5 and the delivery of this wagon was accepted by the defendant/plaintiff. The plaintiff, thereafter dispatched 161 bags of white jwari as per contract vide Ex. D-l from Abhanpur Railway Station to Salcotaurs on 5-3-1975. Another wagon load of jwari of dim white quality contained in 149 bags was dispatched under Ex. D-2 from the said railway station and the bills and the railway receipts were sent to the defendant through bank. The respondent/plaintiff thereafter informed the appellant/defendant about these dispatches. The appellant/defendant refused to take their delivery. On persistent refusal of the defendant to take the delivery of the goods, the respondent/plaintiff deputed his representative Sohanlal to Madras, who sold the jwari of these two wagons to firm Dalooram Jainarayan of Madras. The price of the first wagon to be charged from the appellant/ defendant was Rs. 28,348.00 and this was sold for Rs. 23,290.00. The price of the second wagon to be recovered from the appellant/defendant was Rs. 25,241.00 while it was sold for Rs. 20,427.00. Some amount also has been spent for the visit of the representative of the respondent/plaintiff for his travelling and stay in Madras.

(3.) In view of the refusal to honour the contract, the plaintiff/respondent instituted a suit claiming Rs. 10,581.57 P. as damages which was the difference in price of the contracted goods and the selling price with interest at the rate of 1 per cent per month from the date of suit. The defendant denied the claim of the plaintiff on several grounds. According to the defendant, the wagons of jwari were to be dispatched from Raipur railway station, but the plaintiff dispatched them from Abhanpur. It was further alleged that as per the contract 220 bags of jwari were to be supplied in each wagon, but the plaintiff dispatched lesser quantity. It was further alleged that the respondent/plaintiff failed to dispatch the two wagons before 5-3-1975 and, therefore, the appellant/ defendant cancelled to contract its letter dated 1-3-1975. It was further alleged that the defendant was not liable to accept the delivery of jwari of the two wagons as the were unreasonably delayed. It was also pleaded that the Raipur Court had no territorial jurisdiction to try the case. Number of issues were framed in the Trial Court and on the basis of the material appearing on record, both oral and documentary the learned Trial Court decreed the suit.