INDIAN TEXTILES COMPANY LTD Vs. KANHAIYA LAL AGARWALLA

JUDGEMENT

(1.) This appeal is brought on behalf of the defendant against the judgment of the District Judge of Muzaffarpur dated 22-5-1952, affirming the decision of the Additional Subordinate Judge of Muzaffarpur.

(2.) The case of the plaintiff is that the defendant, Indian Textiles Company limited, which is a big firm, widely advertised in all important papers of Calcutta that "Arkon" pens were very serviceable and useful pens and were guaranteed for three years, A representative of the defendant came to Muzaffarpur and represented to the plaintiff that the aforesaid pens were very good and were lying in the Calcutta office. The representative also showed the plaintiff the advertisements of the Calcutta papers. Thereafter the representative secured an order from the plaintiff for 150 pens worth Rs. 4556/4/-. The contract was entered into on 24-10-1946. Later on the plaintiff paid the amount to the defendant and took delivery of the "Arkon" pens. It appears that the plaintiff sold some of these pens to different customers, but in a few days they returned the pens to the plaintiff, complaining that they were useless, Thereafter the plaintiff returned 100 out of the 150 pens to the defendant and, according to the plaintiff's case, the defendant agreed to return their price. The plaintiff also asked the defendant to take back the remaining 50 pens and to return their price. The defendant however, did not do so in spite of repeated requests and in spite of a lawyer's notice. The plaintiff, therefore brought the suit for recovery of a sum of Rs. 4562/13/- as damages for breach of contract. The defendant contested the suit on the ground that there was no contract of sale between the parties, but there was only a contract of agency. The defendant also alleged that there was no representation made to the plaintiff at Muzaffarpur by any agent. The defendant also denied that he agreed to refund the price of the 100 pens which were deposited with him by the plaintiff. Upon an examination of the evidence adduced in the case and after consideration of the pleadings the trial Court did not accept the plaintiffs case that the defendant agreed to take the 100 pens back and refund their price. But the trial Court found that there was a representation made by the agent of the defendant to the plaintiff with regard to the quality of the "Arkon" pens, and apart from the advertisements there was an express representation orally made by Mr. Pal, the agent of the defendant that the pens were of good quality and were guaranteed for three years. It was also found that the plaintiffs placed the order with the defendant on the strength of this representation. As there was a breach of contract, the trial Court gave a decree in favour of the plaintiff for the amount of Rs. 4562/- and odd which was the price paid by the plaintiff and which represented the quantum of damages for the breach of the contract. The decree of the trial Court has been affirmed by the lower appellate Court.

(3.) In support of this second appeal the learned Advocate General made the submission in the first place that there was no contract of sale between the plaintiff and the defendant, that they were not in law in the position of purchaser and seller, but there was only a contract of agency. It was contended that the defendant was an agent for the plaintiff to procure the goods on indent from the American manufacturers.