KRISHAN LAL Vs. B D TEXTILES

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree of the learned Additional District Judge, Amritsar, dated October 1, 1964, whereby the decree passed by the trial Court was set aside and the suit of the plaintiff-appellant dismissed.

(2.) According to the case set up in the plaint, the plaintiff-appellant sold 310 Lbs. of art silk yarn to the defendant-respondents on May 8, 1959 at the rate of Rs. 4/7/- per Lb. The defendants took delivery of the goods and paid Rs. 200/- on July 25, 1959, towards part payment of the price of the goods but did not pay the balance of the price, which led the plaintiff to file a suit on June 9, 1960, for the recovery of Rs. 1,375/10/- by way of principal and Rs. 78/14/- as interest. The suit was resisted by the defendants who pleaded that the goods had been sold on a warranty that the same were fit for manufacturing process, but when the same were put to the said use, the goods were found to be defective. The defendants further pleaded that the dispute having arisen, Sarvshri Madan Lal, Bishan Dass, Dharam Pal and Jagdish Chand, were appointed as referees by the parties to settle the matter. The referees decided that the defendants should pay Rs. 200/- as the price of the goods already consumed and the rest of the goods should be taken back by the plaintiff. After trial, the learned Additional Subordinate Judge, Amritsar, vide judgment, dated March 9, 1961, upheld the plea of the defendants and dismissed the suit. Dissatisfied with that judgment, the plaintiff went in appeal which was dismissed by the learned Additional District Judge, Amritsar, on April 3, 1963, and the findings of the trial Court were affirmed.

(3.) Thereafter the plaintiff brought the present suit for the return of art silk yarn No. 120 of the National Mills, Bombay, weighing 265 Lbs., and in the alternative claimed compensation to the tune of Rs. 2,100/- being the present price of the goods. The defendants contested the suit on various grounds. The two pleas raised by them, which are material for the decision of this appeal, were that (i) the suit was barred under Order 2 Rule 2 and Section 11 of the Code of Civil Procedure, and (ii) that they were always willing and ready to return the goods which were lying with them and that it was the plaintiff who refused to accept the goods. The two issues framed covering these pleas read as under :-