SANTI SAHU Vs. SHEOGULAM SAHU

JUDGEMENT

(1.) The question raised in this case is whether the plaintiffs-respondents were entitled to sell the goods sold by them to the defendants, the defendants having pledged the same goods as security for payment of the money advanced by the plaintiffs for buying the goods. The Court below has decreed the suit, and hence this appeal by the defendants.

(2.) The facts, put in brief, are that, in June, 1943, corresponding to sometime in Jeth, 1350 Fasli, defendant No. 1, as karta of his family, constituting of himself and the other defendants, approached the plaintiff No. 1, who carries on business on his behalf as well as on behalf of the other plaintiffs, and requested him to purchase for the defendants Tisi (linseed) and to keep in the plaintiffs' arhat. The defendants agreed to pay interest on the money advanced by the plaintiffs for the purchase of Tisi at the rate of 12 annas per cent per month and arhat charges at the same rate. The plaintiffs' case is that it was agreed that, in case the Tisi was not disposed of by the defendants by the end of September, 1943, the plaintiffs were entitled to sell the same and to appropriate the sale proceeds to their dues together with interest and arhat charges, and pay the surplus, if any, to the defendants. It is said that, in pursuance of that agreement, the plaintiffs purchased Tisi for the defendants as Per account given in the plaint. The defendants did not sell the Tisi by the end of September, and the price of Tisi began to fall. On plaintiffs' insistence to sell the Tisi and pay off the dues of the plaintiffs, the defendants requested the Plaintiff No. 1 for a month's time, and also executed a moahdanama for Rs. 3,100/-by way of indemnity bond to idemnify the plaintiffs against any loss. The defendants, even thereafter, took no steps to sell the Tisi, and the price of Tisi continued falling. The plaintiffs, thereupon, served a notice on the defendants on the 4th February, 1944 (Exhibit 5) demanding the plaintiffs' dues as per schedule given in the plaint. The notice was served, and the defendants sent a reply dated the 28th February, 1944 (Exhibit 6), and they asked for some more time; but they took no steps for selling the Tisi. The defendants further deposited with the plaintiffs a sum of Rs. 2,900/- and requested the plaintiffs to buy for them another lot of 445 bags of Tisi. An agreement was entered into between the parties for selling the same within 30th Baisakh, 1351 Fasli. A memorandum as regards 445 bags was drawn up and signed by the defendants (Exhibit 4 dated the 24th March, 1944) in which interest and arhat charges were stipulated to be paid by the defendants at the rate of 1 per cent per month. Some time elapsed and the price of Tisi continued going down, and the plaintiffs grew apprehensive and served another notice dated the 26th April. 1944 (Exhibit 5a) asking the defendants to take steps to clear the dues of the plaintiffs and sell the Tisi within seven days of the date of receipt of that notice, failing which the plaintiffs were to sell it and realise their own dues from the proceeds. The defendants took no heed and sent a reply that the defendants were not in a position to sell the Tisi at the prevalent market rate. The plaintiffs, being unable to wait any longer, started selling the Tisi to recognised firms from Bhado, 1351 Fasli, according to the market rate then prevalent. All the transactions were entered into the plaintiffs' Bahi Khata, and, after selling the Tisi, the plaintiffs sustained a loss of Rs. 6,320/-/3 as per account given in the plaint which formed the subject-matter of the suit.

(3.) The defence of defendant No. 7 is that he had no concern with the business of defendant No. 1, nor had he any concern with the properties of the defendant. He alleged partition between himself and the other defendants, and stated that there was no ancestral business of the family of the defendants, as alleged in the plaint. Defendants 1 to 6 endorsed the defence of defendant No. 7, and stated that no power was given to the plaintiffs to sell the Tisi unless so directed by the defendants; that there was no agreement to sell the Tisi at the end of September, 1943; on the contrary, they asserted that the agreement was that the Tisi would be sold only when the defendants would ask the plaintiffs to do so; that the moahdanama was executed under pressure and undue influence; that no time was asked for by the defendants after the execution of the moahdanama, but in spite of it the plaintiffs served a notice on the defendants; and that the memorandum was also executed by the defendants in favour of the plaintiffs under undue influence, and the rate of interest and arhat charges at the rate of 1 per cent per month was a penal rate and the defendants were not bound by it. In short, the defence is that the plaintiffs had no right or authority to sell either the first lot of 961 bags of Tisi or the second lot of 445 bags. It was also faintly urged that the Tisi of the defendants had not been sold and was kept in the arhat of the plaintiffs and, therefore, no cause of action had accrued to the plaintiffs.