MATANHELLA BROTHERS Vs. MAHABIR INDUSTRIES PVT LTD

JUDGEMENT

(1.) This second appeal came up before us for hearing on a reference by a learned Single Judge of this Court. The defendants are the appellants. The suit filed by the plaintiff-respondent was for recovery of Rs. 1,800 on account of damages for breach of a contract of sale of 180 bags of pure Tora. Both the Courts below have decreed the suit of the plaintiff.

(2.) The plaintiff is a private limited company carrying on business at Forbes-ganj in the district of Purnea. Defendants 2 and 3 are said to carry on business in the town of Gorakhpur in the name and style of defendant No. 1. According to the plaintiff's case, the defendants, by their telegram dated the 22nd March. 1961, offered to the plaintiff at Forbesganj to purchase for it Pai Tora at the rate of Rs. 26.50 paise per maund and linseed at Rs. 25.00 per maund, and sought its approval and acceptance of the offer. The plaintiff accepted the offer made by the defendants and communicated the same to them by its letter dated the 23rd March, 1961, whereby the defendants were directed to purchase for the plaintiff one wagon of pure Tora at Rs. 28.00 per maund and to despatch the same to Forbesganj. The defendants purchased 180 bags of Pure Tora at Rs. 28.00 per maund and informed the plaintiff by their telegram dated the 28th March, 1961. The goods, however, were not despatched after the purchase, even up to the 10th April, 1961. The plaintiff, by its letter dated the 11th April, 1961, wrote to the defendants to enquire from them as to why the commodity could not be despatched, and requested them to despatch 180 bags to Forbesganj without any further delay. Even then, the defendants did not despatch. On the 2nd May, 1961, the plaintiff wrote again complaining about the delay in the despatch but the goods were not despatched. The market of Tora went on rising and it went up to Rs. 32.50 paise per maund in the Forbesganj market. It is not stated in any part of the plaint as to at what point of time was this market rate. According to the plaintiff's case. 180 bags of Tora would be equal to 405 maunds; as each bag contains 2 maunds 10 seers. The difference between the contract price and the market price thus came to Rs. 1,822.50 at the rate of Rs. 4.50 paise per maund. Giving a remission of Rs. 22.50 paise, the total claim in the suit was Rs. 1800.00.

(3.) The defence set up by the appellants was that, as per instructions of the plaintiff, defendant No. 1 had purchased the Tora and sent a sample of the purchased goods to it; but the plaintiff company informed that the Tora contained 50% of Pai and expressed its inability to accept the goods. Thus, the transaction failed. The plaintiff insisted on despatch of the Tora. The defendants asked the plaintiff to send its men to take delivery of the goods which had been purchased by them for the plaintiff as per sample. The plaintiff never sent any man to take delivery. The breach of the contract, therefore, was on the part of the plaintiff company, and not on the part of the defendants. The defendants also contended and took the plea that the Court at Araria had no jurisdiction to try the suit as the contract was completed at Gorakh-pur, the delivery was to be made at Gorakhpur, and no part of the cause of action arose within the jurisdiction of the Araria Court.