CHAND AGRAWALLA Vs. BHAGAWAN DAS

JUDGEMENT

(1.) The defendant is the appellant in this second appeal. Plaintiff and defendant are two businessmen. The appeal arises out of a suit filed by the plaintiff for recovery of a sum of Rs. 674-7-0 said to be due to him in respect of a contract entered into between the plaintiff and the defendant (Ex. C dated 13-10-1945) whereby the plaintiff was to supply to the defendant 200 bags of kulthi at Rs. 9/- per bag at Muri Bahal Railway Station. The plaintiff's case is that he supplied 175 bags in one instalment and received therefor only Rs. 400/-, leaving a balance of Rs. 1,175/- still due to him; and that so far as the remaining 25 bags were concerned he offered delivery in accordance with the contract, at a later date but that the defendant declined to accept delivery. According to him he subsequently received another sum of Rs. 521/- and hence the present suit for the balance due on these various accounts, which amounted to Rs. 654/- plus interest amounting to Rs. 20-7-0. The defendant, admitted the contract and also the delivery to him of the first lot of 175 bags of kulthi. In respect of the remaining 25 bags, however, he says that the default was with the plaintiff. He also alleges that in all a sum of Rs. 1,471/- was paid up by him to the plaintiff, or on plaintiff's account, and that only a small balance was due from him in respect of the delivery of the first lot of 175 bags, and that so far as the delivery of the remaining 25 bags was concerned he was entitled to damages. Accordingly, in his written statement he counter-claimed that the plaintiff was liable to pay a sum of Rs. 271/- and paid the requisite Court-fee thereon.

(2.) The two questions which were in dispute between the parties in the course of this litigation are:

(3.) The contention of the defendant is that the contract wag one for "station delivery" and that since customs duty had to be paid before the goods could be delivered at the station, the amount paid by way of customs duty had to be borne by the vendor plaintiff and not by the vendee-defendant, though in fact he (defendant) had had to pay it in order to take delivery. Learned counsel for the appellant relied strongly upon the finding of both the Courts below that the contract was one for station delivery, and urges that this implies as a matter of law that every expense that had to be incurred up to the point of time when the goods could be actually delivered at the station are to be met by the vendor, as being involved in his responsibility to deliver the goods at the station. Both the Courts have rejected this contention.