FULCHAND MOTILAL Vs. MANHAR LALL JETHA LALL MEHTA

JUDGEMENT

(1.) This application is directed against the order of the learned Munsif, First Court, Monghyr, staying Money Suit No. 38 of 1969 pending in his court till the disposal of Original Suit No. 662 of 1968 pending in the court of the District Munsif at Vijayawada. The learned Munsif has passed such an order of stay under Section 10 of the Code of Civil Procedure (hereinafter to be referred to as the "Coda"). The circumstances under which the impugned order came to be passed are as follows :--

(2.) Some time in the last week of August, 1968, an agent of the defendants, which are a partnership firm having their? Head Office at Vijayawada, negotiated with the plaintiffs, which also are a partnership firm having their Head Office at Khagaria, for sale of cocoanuts. The plaintiffs booked an order for cocoanuts to be supplied by the defendants, and, in parsuance of this agreement, the plaintiffs made advance payments to the defendants in two equal instalments, one by a bank draft, dated the 9th September, 1968, and the other by a tele-graphic transfer, dated 14th September, 1968. The defendants despatched two wagons of cocoanuts for delivery to the plaintiffs at Barauni on the basis of relative railway receipts which were forwarded to the plaintiffs through the State Bank of India. The first consignment was received on the 25th September, 1968, and it was duly honoured by the plaintiffs. In regard to the second consignment, a notice of the arrival of the railway receipt, together with the usual hundi, was given to the plaintiffs on the 8th October, 1968. But the delivery of the consignment was not taken by the plaintiffs as they were not prepared to honour the hundi on a ground which according to the plaintiffs was that the defendants had not, in accordance with the terms of the agreement between the parties, adjusted the advance of Rs. 1,000/- against the money payable by the plaintiffs at the time of taking delivery of the second consignment. According to the plaintiffs, the defendants were actuated with dishonesty from the very inception and so they did not deliberately adjust the advance towards the hundi drawn by them upon the plaintiffs for being honoured at the time of taking delivery of the second consignment. In other words, according to the plaintiffs, the fault lay with the defendants and, by reason of their default, the plaintiffs not only lost the business of dealing in cocoanuts on the occasion of the Chhath festival of that year, but also sustained loss of profits. Accordingly, the plaintiffs instituted the money suit in the first court of the Munsif at Monghyr for recovery of a sum of Rs. 1,000/- paid by them to the defendants by way of advance and a further sum of Rs. 500/- as compensation for loss of profits to them.

(3.) The defendants appeared in the suit and filed a written statement denying their liability to the plaintiffs. The substantial defence taken by the defendants is that, in the circumstances mentioned in the written statement, the plaintiffs had no justification for refusing to honour the hundi and to take delivery of the second consignment of cocoanuts which had been despatched by the defendants as per the agreement be-tween the parties. The defendants further pleaded that, although they had not given credit to the plaintiffs in respect of the advance of Rs. 1,000/- in the first instance, yet they had telegraphically informed theft bankers at Khagaria to deliver the bill and the hundi to the plaintiffs on receiving from them a sum of Rs. 1,000/- less than the billed amount. Notwithstanding such fiction taken by the defendants, the plaintiffs had deliberately failed to honour the hundi and to take delivery of the consignment. Therefore, it became necessary for the defendants to arrange to take delivery of the consignment and to sell the cocoa-nuts through their own agency. In that process, it is said that the defendants suffered a total loss of Rs. 3,265.87 paise, out of which the plaintiffs were entitled to a credit to the extent of Rs. 1,000/-, which was the advance money; but the balance of Rupees 2,265.87 paise was recoverable by the defendants from the plaintiffs, and, for that purpose, the defendants had instituted original suit No. 662 of 1968 in the court of the District Munsif at Vijayawada. A certified copy of the plaint of the Vijayawada suit has been filed by the plaintiffs in the present suit