KANAK KUMARI SAHIBA Vs. CHANDAN LALL KHATTRY

JUDGEMENT

(1.) This appeal is by the plaintiff. Mr. Nandlal Untwalia, whose name appears for the respon-dents, has informed us that he has no instruction to oppose the appeal. We have heard. Mr. B. C. De for the appellant.

(2.) The plaintiff is the wife of the Maharaja Bahadur of Dumraon. She. through her manager, Mr. H. Knight, entered into an agreement with. the two defendants, who are father and son, for the purchase of net-weaving and hosiery machines which had been installed at Barraekpore, Calcutta. The price fixed for the net-weaving machinery was Rs. 60,000/- and that for the hosiery machinery Rs. 40,000/-, the total being Rs. 1,00,000/-. The agreement for sale was drawn up between the parties on 13-1-1945. Under this agreement, a sum of Rs. 10,000/- out of the price was to be paid on that very date, and it was so paid. Another sum of Rs. 25,000/- was to be paid when the sale deed regarding the machinery was completed. This sum was paid on 7-2-1945, when the bale deed was drawn up. A further sum of Rs. 40,000/- was to be paid when the machines would be despatched to Dumraon, and this took place on 9-2-1945. The balance of Rs. 25,000/- was payable when the machines were installed at Dumraon and put in working and running order by the defendants. It was further stipulated that, in case the machines were not put in working order at Dumraon, the machines would be kept by the purchaser; but the balance of Rs. 25,000/- would not be paid to the sellers and would be forfeited. There was a further stipulation that the purchaser would be further entitled to claim damages from the sellers.

(3.) The machines reached Dumraon in February, 1945. Both the defendants had gone to Dumraon. By the end of March, 1945, the machines were installed at their proper places. It was, however, found that the hosiery machines did not work at all, while the net-weaving machines were not working satisfactorily, and could not produce marketable goods. Defendant No. 1 left Dumraon, promising to return with certain parts of the machines which were wanting, and he took with himself two chain machines and one sock machine for certain repairs. Defendant No. 1 had, however, left his son, defendant No. 2, at Dumraon. Thereafter, defendant No. I never returned to Dumraon, although letters and telegrams were sent to him by defendant No. 2 as also by the plaintiff's men. When, however, a registered notice was sent on behalf of the plaintiff in August, 1945. the defendant claimed to have put everything in proper condition, and demanded the balance of Rs. 25,000/- which was the unpaid portion of the purchase money. It is the case of the plaintiff that she had to carry out the necessary repairs and had to purchase the necessary parts in order to put the machines going.