HANUTMAL BHUTORIA Vs. DOMINION OF INDIA

JUDGEMENT

(1.) This is an appeal from the judgment of Mallick J, dismissing the appellant's suit for recovery of a sum of Rs. 7155/- on account of short delivery in respect of certain goods which were sold at an auction sale on the 3rd February 1947. The appellant's case is that on the 3rd February 1947 at an auction sale held by Mackenzie Lyall and Co. on the instructions of the Chief Commercial Manager, Bengal and Assam Railway, the appellant in his business of Neemchand Himatmull was declared the highest bidder and purchaser of certain quantities of jute and hemp, the particulars whereof are set out in the plaint. It appears that the appellant was declared a purchaser in respect of six lots, five of which were sold together and Lot No. 7 was sold separately. Lot No. 1 of the first five lots was alleged to consist of 272 bales of jute in bundles and 50 bales jute; Lot No. 2--60 halt bales jute in bundles and 30 half bales jute; Lot No. 3 had 70 drums jute; Lot No. 4, had 9 drums hemp; Lot No. 5 had 5 half bales of hemp. The other lot being Lot No. 7 consisted of 182 bales of jute. The appellant paid a sum of Rs. 16000/- in respect of Lots 1 to 5 and a sum of Rs. 11000/- in respect of Lot No. 7. So the total price of the lots which were knocked down to the appellant amounts to Rs. 27000/-. The appellant's case further is that at the time of taking delivery of the said goods 34 bales were found short in respect of Lot No. 1, 25 half bales were found short in respect of Lot No. 2 and 23 bales were short in respect of Lot No. 7. Shortage in maunds in respect of these bales and half bales has been calculated at 238 maunds and the appellant claims the value of the goods at Rs. 30/- per maund. The claim is thus laid at Rs. 7155/-.

(2.) The defendants in the suit which was brought by the appellant were two in number being the Dominion of India and Mackenzie Lyall and Co., the auctioneers. In the written statement filed on behalf of the Dominion of India, reference is craved to the conditions of sale pursuant to which the auction has taken place and reliance is placed particularly on Clause 4 of the conditions which was as follows :

(3.) The parties adduced both oral and documentary evidence before the learned trial Judge in respect of the several issues that were raised before him and the learned trial Judge, as pointed out already dismissed the plaintiff's suit.