PIAREMOHAN Vs. THANCHAND

JUDGEMENT

(1.) THIS second appeal by the plaintiff arises from the appellat judgment and decree of the Senior Civil Judge, No. 1. Jodhpur, dated July 20, 1 60, in these circumstances.

(2.) THE plaintiff manufactures and suppliess house building material and carries on his business in the name style of "mohan Brothers", in Jodhpur City. He agreed to supply wooden door frames and shutters to the defendant in 1955, when the defendant's house was under construction, at the rate of Rs. 3/4/- per square foot. Later, the parties agreed that the plaintiff may supply only the door frames, and it is not in dispute now that orders for the supply were placed with the plaintiff on July 17, 23, and 30, 1955. THE supply was made and completed before August 3, 1955, on which date the plaintiff sent his bill (Ex. 10) to the defendant for Rs. 1,261/15/6. THE defendant made a payment of Rs. 700/- on August 10, 1955, and this left a balance of Rs. 561/15/6. But he gave a notice (Ex. 5) to the plaintiff on September 24,1955, making it clear that he had paid Rs. 700/- as advance payment, that the frames were worth Rs. 11/- per cubic foot and that the defendant would be entitled to a refund of the excess amount and that he would also be entitled to damages. THE plaintiff, in his turn, sent notice or reply (Ex. 6) on October 3, 1955, justifying his claim for the recovery of the balance of Rs. 561/15/6. In that document he stated, for the first time, that the defendant had agreed to pay according to his (plaintiff's) bill for the door frames, and that the defendant should, therefore pay the outstanding sum of Rs. 561/15/6. Later, the plaintiff amended his original bill (Ex. 10) to include the cost of one more frame and he finally claimed Rs. 1,275/3/3 as the price of 36 frames which had, according to the plaintiff,, been supplied to the defendant. On the balance of Rs. 575/3/3, the plaintiff claimed interest at the rate of 6 per cent per annum, amounting to Rs. 43/4/-, and it was for this total claim of Rs. 618/7/3 that he instituted the present suit on November 14, 1956.

(3.) IT would follow therefore that this is a case in which the price was not fixed by the contract, or left to be fixed in a manner thereby agreed, and it cannot also be determined by the course of dealing between the parties. The buyer has therefore to pay the seller "a reasonable price" under the provisions of sub-sec. (2) of sec. 9 of the Sale of Goods Act, which was fully applicable to the present case. This is the subject-matter of issue No. 6 (b) for that issue relates to the question as to what should be the price of the frames according to the market rate? IT does not, in terms, refer to "reasonable price", but a perusal of the impugned judgment of the lower appellate court makes it quite clear that the learned Judge addressed himself to the question of reasonable price while recording his finding on this issue and he was clearly of the opinion that the case was governed by sec. 9 (2) of the Sale of Goods Act. IT may be mentioned that the appellant's learned counsel tried to raise the argument that issue No. 6 (b) did not arise from the pleadings of the parties and should not have been framed by the trial court, but a perusal of the trial court's order sheet dated August 27, 1958 shows that the learned Munsiff had framed that issue with the consent of the parties.