SALIGRAM MARWARI Vs. AYODHYA PRASAD MUSADDILAL

JUDGEMENT

(1.) These two appeals arise out of two suits which were tried analogous and they have, therefore, been heard together, although the First Appeals arising therefrom were dealt with separately by the same learned Single Judge. Letters Patent Appeal No. 90 of 1959, from the decision of the learned Single Judge in First Appeal No. 361 of 1953, arises out of Money Suit No. 12 of 1952, and Letters Patent Appeal No. 23 of 1960, from the decision of the learned Single Judge in First Appeal No. 475 of 1954, arises out of Money Suit No. 76 of 1953. The plaintiff in both the suits is Nalam Kanaka Raju, Respondent No. 2 in Letters Patent Appeal No. 90 of 1959 and the appellant in Letters Patent Appeal No. 23 of 1960. There were two sets of defendants in each suit, and one of them was common to both the suits, and will, for the sake of convenience, be referred to as the Sakti merchant. The other set of defendants are merchants of Jharia who, however, are two different parties. The Jharia merchants, who were defendants in Money Suit No. 12 of 1952, are the appellants before us in Letters Patent Appeal No. 90 of 1959. The other set of Jharia merchants, who were defendants in Money Suit No. 76 of 1953, are respondents 2 to 5 in Letters Patent Appeal No. 23 of 1960. Both these appeals have been heard together as they involve identical questions for decisions.

(2.) The following facts of the two cases are not in dispute. The plaintiff, who is a merchant of the district of Ganjam, in Orissa, desired to purchase Mahua flowers at Sakti in the State of Madhya Pradesh to transport them to Jharia in the State of Bihar for the purpose of sale at profit. Accordingly, in December 1947, he entered into a contract with the Sakti merchant for the purchase of 1000 maunds of Mahua at the rate of Rs. 5 per maund. He had, however, to experience certain difficulties on account of the fact that at the relevant time there was a ban upon, export of Mahua flowers outside the State of Madhya Pradesh and the Mahua flowers purchased by the plaintiff could not be exported to Jharia without permit from the Government of the State of Madhya Pradesh. Accordingly, the plaintiff applied for the necessary permit, but it was not issued to him until the 27th January 1949. Meanwhile, however, the plaintiff who had already become the owner of the Mahua flowers in question made part payment of their price to the Sakti merchant. After the issue of the necessary permit, steps were taken to arrange for railway wagons for transporting the consignment from Sakti Railway station to Bhaga Railway station situated near Jharia. The consignment was transported in three different wagons. The first wagon reached the destination on or about the 19th February 1949 and the delivery of the consignment was taken by the Jharia merchants, who are defendants in Money Suit No. 12 of 1952 and will be referred to as the Jharia merchants No. 1. The second and the third wagons reached the destination on or about the 24th February 1949. The delivery of the consignment of the second wagon was taken by the Jharia merchants, who are defendants in Money Suit No. 76 of 1953 and will be referred to as the Jharia merchants No. 2, while that of the third wagon was taken by the plaintiff and made over to the Jharia merchants No. 1. The consignment of the second wagon was the subject matter of Money Suit No. 76 of 1953, while the consignments of the first and the third wagons were the subject matter of Money Suit No. 12 of 1952. After the deliveries as aforesaid, the Mahua flowers in question were sold at Jharia through the agencies of the two sets of Jharia merchants at different rates ranging between Rs. 10 to Rs. 12-8-0 per bag, but the sale proceeds were not paid by them to the plaintiff, and that gave rise to exchange of correspondence between the parties and ultimately culminated in the institution of the two suits. In Money Suit No. 12 of 1952, the total claim was laid at Rs. 7,371-11-0 inclusive of interest for the price of 273 bags at the rate of Rs. 11-8-0 per bag and of 250 bags at the rate of Rs. 12-8-0 per bag; and in Money Suit No. 76 of 1953, the total claim of Rs. 2,834 inclusive of interest for the price of 90 bags at the rate of Rs. 10 per bag and 112 bags at the rate of Rs. 11-8-0 per bag. The real dispute between the parties is with respect to the true contractual relationship of the Jharia merchants and the Sakti merchant vis-a-vis the plaintiff. The case of the plaintiff is that the Jharia merchants were his agents whom he had employed for selling the Mahua flowers and, therefore, they were accountable to him for the sale price, and not to the Sakti merchant. On the other hand, the stand taken by the Jharia merchants is that there was no privity of contract between them and the plaintiff, and the contract was between them and the Sakti merchant to whom they had paid a sum of Rs. 3,900-14-6 in respect of the claim laid against them in Money Suit No. 12 of 1952 and Rs. 1,403-9-0 in respect of the claim laid against them in Money Suit No. 76 of 1953. The Sakti merchant admitted to have received the money from Jharia merchants and that they were his agents and accountable to him alone, instead of to the plaintiff. The learned Subordinate Judge recorded the following findings:

(3.) The Sakti merchant thereupon filed the two First Appeals, and in both of them a cross objection was filed by the plaintiff. First Appeal No. 361 of 1953 was disposed of by the learned Single Judge, Raj Kishore Prasad, J., in the first instance, who discharged the decree passed by the learned Subordinate Judge against the Sakti merchant and decreed the plaintiff's claim against the Jharia merchants, also allowing the plaintiff's cross objection in part in respect of his claim for freight and interest pendente lite, both of which had been refused by the trial Court. In First Appeal No. 475 of 1954, however, which was heard subsequently, the learned Single Judge, came to a different conclusion. His Lordship dismissed the plaintiff's suit against the Sakti merchant, but declined to pass a decree against the Jharia merchants, with the result that the plaintiff's suit (Money Suit No. 75 of 1953) was dismissed in toto. The appeal was allowed and the cross objection was dismissed.