FIRM PURSOTTAM DAS GANPATI RAI Vs. GULAB KHAN

JUDGEMENT

(1.) The plaintiff-respondent, Gulab Khan, instituted the suit for recovery of a sum of Rs. 16, 979/- together with costs, interest pendente lite and future interest, on the allegation that he placed an order with the defendant for supply of 352 tins of mustard oil, weighing 154 maunds, to be despatched from Kanpur to Motihari. The oil to be supplied, however, was stipulated to be of pure and unadulterated quality. On the 16th of June, 1950, the defendant sent the goods ordered for from Kanpur, not to Motihari, but to Bettiah railway station. The plaintiff had to incur some costs in bringing the oil from Bettiah to Motihari. The plahitifi took delivery of the railway receipt from the Central Bank of India, Bettiah Branch, on payment of a sum of Rs. 13,720/-. He went to the railway station to take delivery, but he was informed by the Goods Clerk that he could be given delivery only when the railway receipt was signed by the Sub-divisional Officer, Bettiah. The plaintiff approached the Sub-divisional , Officer, Bettiah, who directed a Government doctor to examine the oil first, and it was only when the doctor reported that the oil was pure and unadulterated that permission could be granted for delivery. The doctor went to the railway godown, took small quantities ot oil from several tins, and reported that the oil contained in the tins was not pure. He also sent samples of the oil to the Government Chemist at Patna for examination. The latter also found the oil to be adulterated, and reported to that effect. The Sub-divisional Officer, accordingly, got the entire consignment kept in the godown of the plaintiff and had it locked and sealed by a Deputy Magistrate, and the key of the godown was kept in charge of the Sub-divisional Officer.

(2.) A criminal case was started thereafter against the plaintiff and the defendant. They were both convicted and fined Rs. 500/- each. They preferred appeals against their conviction and sentence. The appellate Court, however, upheld the conviction and sentence of the defendant, but acquitted the plaintiff. It seems, however, that the defendant also came up in revision to this Court, and his conviction was also set aside. The plaintiff addressed, thereafter, several letters to the defendant for payment of the price of the oil, with damages and interest, railway freight, cartage and other incidental expenses. The defendant, however, did not pay any heed to the notices, and, accordingly, the present suit had to be instituted on the allegation that it was the defendant who dishonestly supplied adulterated mustard oil. On these allegations, as stated above, the present suit was instituted, and the plaintiff claimed the aforesaid amount, which comprised the price of the 352 tins of mustard oil as also the other incidental expenses incurred by him in connection with the consignment despatched to him.

(3.) The defendant denied the right of the plaintiff to the amount claimed. It was admitted, no doubt, that the firm of the plaintiff placed an order with the defendant at Kanpur to purchase 352 tins of mustard oil and despatch it to Bettiah. It was denied that the order for supply of oil was placed by the plaintiff at Motihari. It was stated further that the defendant acted as commission agent on behalf of the plaintiff in executing the order placed and purchased 352 tins of mustard oil from the Ganges Oil Mills at Kanpur (which was defendant No. 2 to the suit then) and instructed the Ganges Oil Mills to despatch the oil to Bettiah. The defendant obtained the railway receipt from the Ganges Oil Mills against payment. The railway receipt was "self", which meant that the consignor and the consignee were the Ganges Oil Mills. The necessary documents were sent to the plaintiff by the defendant through the Central Bank of India, Bettiah Branch, for payment. The goods in question were purchased at first by Messrs. Shrikrishna Ram of Narkatiyaganj from the Ganges Oil Mills. The defendant had no occasion to see the goods. The Ganges Oil Mills certified that the oil purchased was free from argemone oil. The certificate issued by the manufacturer, along with the sample, was forwarded to the plaintiff. If was denied that the defendant had undertaken-to supply pure mustard oil fit for human consumption. The plaintiff had not divulged for what purpose the oil in dispute was required. According to the defendant, the goods were despatched to Bettiah according to the instruction of the plaintiff, and it was wrong to suggest that the plaintiff ordered the goods to be supplied to him at Motihari. The defendant was not aware of the real quality of the mustard oil supplied, and it was the Ganges Oil Mills (defendant No. 2) which was responsible for the quality of the oil. It was the Ganges Oil Mills which guaranteed the quality of the oil as pure, and this defendant had no reason to suspect the bona fides of defendant No. 2. If, therefore, on chemical examination of the oil, it was discovered that it was not of pure quality, the liability for it would fall on the shoulders of the Ganges Oil Mills, and not on the defendant No. 1. This in substance, is the tenor of the written statement filed on behalf of the defendant.