SK KABIR Vs. NARAYANDAS LACHMAN DAS LTD

JUDGEMENT

(1.) This First Appeal has been filed by the two plaintiffs against the judgment and decree dated 20-1-1949 of Sri Dinabandhu Das, District Judge of Keonjhar- Balasore, arising out of a suit brought by the plaintiffs claiming damages to the extent of Rs. 15,000/- against the defendants for breach of contracts. The two plaintiffs are dealers in mustard oil at Balasore and the defendants constitute a firm dealing in mustard oil at Cawnpore. The plaintiffs' case is that the defendants entered into two contracts with them (the plaintiffs) -- one on 5-4-1943 and the other on 21-4-1943 -- to supply mustard oil. The first contract was to supply 1056 tins or mustard oil at the rate of Rs. 29/- per maund and the second contract was to supply 286 tins of mustard oil at the rate of Rs. 36/- per maund. In pursuance of the said contracts the plaintiffs paid an advance of Rs. 1000/- through a Bank Draft and despatched 1519 empty tins. The defendants avoided performance of the said contracts on the false pretext that export of mustard oil outside the United Provinces had been banned. The plaintiffs further alleged that they had approached the District Magistrate of Balasore to request the District Magistrate of Cawnpore to grant a permit for the export of mustard oil. The District Magistrate of Balasore having written such a letter of request, one of the plaintiffs along with their lawyer Sri Gyanaranjan Patnaik, B.L., who has been examined in the present case as a witness, approached the District Magistrate of Cawnpore who endorsed on the said letter that there was no ban for the export of mustard oil from Cawnpore to Orissa. With this endorsement the second plaintiff and the lawyer Sri Patnaik approached the defendants' firm for taking delivery of the articles, but the defendants' firm having refused to deliver and having finally cancelled the contracts on 14-7-1943 on the pretext of the aforesaid ban, the present suit for damages has been brought. It is to be noted here that the contracts were for delivery of the tins at Cawnpore Railway Station (f.o.r. Cawnpore). The plaintiffs calculated the damages on the basis of the difference of prices prevailing at Balasore. The total amount on the basis of this difference is Rs. 9986/-. They have claimed the price of the tins at Rs. 3987/6/- (at Rs. 2/10/-per tin) and for refund of the advance of Rs. 1000/-.

(2.) The main defence is that the suit is hit by the provisions of Section 69, Partnership Act as the plaintiffs constituted a firm which has not been registered and the persons suing are not shown on the register of firms as partners in the firm, and the Court at Balasore has no jurisdiction as no part of the cause of action arose within the jurisdiction of the Balasore Court. The defendants, while denying any completed contracts between the parties, have further alleged that the contracts, if any, became impossible of performance due to the existence of legal ban issued by the Government of United Provinces that the mustard oil could not be exported from the United Provinces. The defendants further alleged that neither of the plaintiffs nor their pleader ever approached them for taking delivery of the tins of the mustard oil, and they (the defendants) having waited for three months were finally compelled to cancel the order booked with their firm as there was no knowing that the ban imposed by the United Provinces Government would be relaxed. They therefore sent a cheque for Rs. 796/13/9 towards the sum of Rs. 1000/-received from the plaintiffs deducting an amount of Rs. 203/2/3 as their costs as per their debit note dated 19-4-1943.

(3.) Most of the issues have been decided in favour of the plaintiffs. It has been found by the learned District Judge that the Court at Balasore has jurisdiction as part of the cause of action arose within his jurisdiction. According to the learned District Judge both the contracts were really completed at Balasore even though the delivery of the goods was to be made at Cawnpore (f.o.r. Cawnpore). The learned District Judge having come to the conclusion that the goods as contracted between the parties were to be delivered at Cawnpore has found that the question of contracts being impossible of performance on account of the ban imposed by the Government of United Provinces does not arise. He has further found that the refusal on the part of the defendants' firm on 21-71943 to deliver the goods to the plaintiffs at Cawnpore when the 2nd plaintiff with their lawyer approached the defendants is a wilful breach of the contracts and the cancellation of the contracts is wrongful. Having found that the goods were to be delivered at Cawnpore, he has calculated the extent of damages on the basis of the prices prevailing at Cawnpore and not at Balasore as claimed by the plaintiffs.