LOHIA TRADING CO Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) The claim in his suit is one for refund of a sum of Rs. 7,381/12/-. The case in the plaint is that, the plaintiff had purchased several lots of paper from the defendant No. 2 which remained deposited with the defendant No. 1 hereinafter referred to as the Bank. It was agreed by and between the parties that the plaintiff would take delivery of the said paper from the Bank, upon payment of its value against instructions of the defendant No. 2. The Bank in turn, agreed to issue delivery orders in favour of the plaintiff to the warehouse, where the paper is stored, free from warehouse and other charges. Pursuant to this agreement, it is alleged that the plaintiff paid the Bank a sum of Rs. 1,581/12/- in accordance with the first delivery instructions issued by the defendant No. 2, but in breach of the agreement and the instructions of the defendant No. 2 the Bank issued defective delivery orders making the plaintiff liable to pay a sum of Rs. 86/14/- as warehouse charges. By a letter dated April 11, 1955, it is alleged the Bank accepted its mistake and agreed to grant the plaintiff a deduction of the sum of Rs. 86/14/- and further promised to issue proper delivery orders in respect of the remaining stock yet to be delivered. The plaintiff thereupon after deducting the said sum of Rs. 86/14/- paid to the Bank a sum of Rs. 7,381/12/-. The Bank on April 18, 1955, it is alleged issued four defective delivery orders making the plaintiff liable for warehouse charges and without a correct description of the lots resulting in the Bengal Bonded Warehouse refusing to accept and/or to act upon the same. In spite of demands the Bank neither rectified nor issued fresh delivery orders to enable the plaintiff to take delivery of the said paper. Alternatively, it is pleaded that the Bank by its acts and/or conduct ratified the contract. The plaintiff in these circumstances has claimed a refund of the sum paid as also loss and damages against the Bank. At the trial however, only the claim for refund of a sum of Rs. 7,381/12/- was pressed. No relief was claimed against the defendant No. 2.

(2.) Only the defendant No. 1 has entered appearance and has filed a written statement. It is inter alia denied that there was any agreement between the Bank and the plaintiff, and it is contended that there was no privity of contract between the plaintiff and the Bank. It is further denied that Rs. 7,381/12/- was paid by the plaintiff to the Bank in consideration of any agreement as alleged. It is also denied that the Bank ratified the contract between the plaintiff and the defendant No. 2 in any way or that there was any obligation on the part of the Bank to issue a full and clear delivery order in favour of the plaintiff as alleged.

(3.) By consent of the parties, the Judge's briefs of Correspondence and Documents were tendered as Ext. 'A' and formal proof of the documents therein was dispensed with.