RAMDHAN RAMKISSEN DAS Vs. KALURAM NARASINGH DAS AND

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal against the confirming judgments of the Courts below arising out of a suit for recovery of a sum of Rs. 992/ - as damages. There was a contract between the Plaintiff and the Defendants that the Defendants are to supply 100 tins of castor oil weighing 32 maunds at the rate of Rs. 89/ - per maund the contract being dated 6th December 1950. The Defendants did not supply, on account of which the Plaintiff served a notice on 1st February 1951 demanding the Defendants to supply the contracted goods or to pay damages represented by the difference in prices of 6th December, 1950 and 21st February, 1951. No money or goods having been paid by the Defendants, the present suit has been brought on the basis of the difference in prices of the castor oil at Rs. 31/ - per maund.

(2.) THE defence was that the Defendants could not fulfil the terms of the contract on account of their agent's negligence and on account of the stoppage of railway booking. This defence was negatived by both the Courts below. The third defence was that the Plaintiff was not entitled to the differences of rates on the dates 6 -12 -1950, the date of the contract and 21 -2 -1951, the date of the notice -but was entitled only to the difference in prices after a reasonable time, that is, 21st December 1950. The Courts below accepted this defence that in the event of success the Plaintiff would be entitled to a sum of Rs. 176/ - on the basis of the difference in price on 6 -12 -1950 and 21 -12 -1950.

(3.) THE position is indisputable that the suit is not hit by the provisions of Section 69 of the Partnership Act as found by the lower appellate Court. The suit has been brought by the Hindu Mitakshara joint family firm. It is manifest to me that the lower appellate Court has gone wrong in law in construing the suit. Substantially the suit appears to have been brought by the Hindu Mitakshara joint family through the managing member Sri Ramnarayan. I will quote the heading of the plaint "Messrs Ramdhandas. Ramkishandas a Hindu Mitakshara family firm having its place of business at Station Dock -yard, B.N. Rly. Cuttack through its Managing Member Sri Ramnarain etc". and also the first paragraph of the plaint which runs thus: