BALMUKAND Vs. JAGAN NATH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal against the judgment and decree of the district Judge, Ganganagar dated the nth July, 1957, affirming the judgment and decree of the Civil Judge Suratgarh dated the 19th March, 1956, dismissing the plaintiffs suit for recovery of damages in circumstances presently to be mentioned.

(2.) THE plaintiffs father and son carried on business as commission agents in the name and style of Balmukund Dharamchand at Raisinghnagar. It is alleged that this was a joint Hindu family firm. The defendant who was a Patwari at raisinghnagar some time before the present suit was brought had an account with the plaintiffs in whirh he used to deposit monies from time to time. The plaintiffs' case was that between the 25th April, 1951, and the 25th June, 1951, the defendant placed an oral order for the purchase of 200 bags of Sarson under their commission agency. These were accordingly purchased at a price of Rs. 12,343// 6, and this sum was debited against the defendant. On the 20th August, 1951, the defendant paid Rs. 3475/- to the plaintiffs of which a sum of Rs. 2977/2/6 was paid out of his aforesaid personal account with the paintiffs, and the relevant entry in that behalf is Ex. 77 which is alleged to have been signed by him and the balance of Rs. 497/13/6 (wrongly mentioned in the plaint as Rs. 479/13/6) was paid in cash. The plaintiffs' case further was that as the defendant had not taken delivery or paid the balance of the price of the 200 bags of Sarson purchased on behalf of him and as the price thereof was falling day by day, they sent a telegram to him on the 16th March, 1952, asking him to send a further deposit of Rs. 4000/ -. (See Ex. 3 in this connection ). In response to this, on the 21st May, 1952, the defendant paid a further sum of Rs. 413/- in cash and promised to clear off the account in a few days. He did nothing further however whereupon a further notice dated the 6th june, 1952 Ex. 5 was sent to the defendant", which was refused by him. Thereafter on the 18th February, 1953, the plaintiffs sent a telegraphic notice to the defendant Ex. 23 in which they asked him to deposit four thousand rupees within twenty-four hours failing which they warned him that they would sell the sarson at the market rate and hold him responsible for the loss incurred by them. The defendant, however, adopted the policy of masterly inactivity. Consequently on the 2oth February, 1953, the plaintiffs sold the 200 bags of sarson which lay stored with them on behalf of the defendant for Rs. 6607/6/-at the rate of Rs. 14/4/6 per maund and debited the latter with a further sum of Rs. 1795/-/9 for godown-rent, interest, commission and other charges. On the same date the plaintiffs sent a post-card to the defendant informing him that his Sarson had been sold by them as he had persistently refused to take delivery of the same. They also clearly told him that he was at liberty to come and see the entire account and pay the losses that had been suffered by them on that account. See ex. 7 or 22. On the 23rd February, 1953, the plaintiffs sent the entire account to the defendant but the latter refused to receive it. See Ex. 10. Eventually, the plaintiffs instituted the present suit against the defendant for the recovery of Rs. 3645/8/- principal plus a further sum of 489/8/-as interest, the total amounting to Rs. 4135/- in the Court of the Civil Judge, Suratgarh.

(3.) THE defendant totally denied the plaintiffs' claim. His case was that he had never purchased any Sarson under the commission agency of the plaintiffs nor he had ever deposited any amount in cash towards that account. He also pleaded in that connection that the entries made in the plaintiffs' books were all fictitious though he admitted that he had a personal account with the plaintiffs in which he used to deposit his money from time to time. Certain other pleas as to the plaintiffs' firm being a parthership one or that the suit transaction was of a wagering nature were also raised in the written statement; but these have been decided against him and have not been pressed before me.