ENGINEERING SUPPLIES LTD Vs. DHANDHANIA AND CO

JUDGEMENT

(1.) In my opinion, this appeal should be dismissed. Mr. Page for the appellant has given a very careful and reasonable argument, but the question is what we think of the merits of the application which has been made by his client that the leave granted to the plaintiff under Clause 12 of the Charter should be revoked and the plaint should be taken off the file and returned to the plaintiff. The plaint, as I have already observed in another appeal (Appeal from Original Order No. 29 of 1930), is open to the criticism in respect that its opening paragraphs are apparently intended to foreshadow a case for damages for misrepresentation of facts inducing the plaintiff company to enter into a contract for the purchase of goods. But, for the present purpose, I shall deal only with the rest which is the main portion of the plaint; and, there again, when I come to the prayers at the end of the plaint, I find that the matter is in no way made clear. It is intended to be an action for damages for breach of contract on the part of the defendant company in failing to deliver goods which were according to the description ordered by the plaintiff.

(2.) The plaintiff's case is that a number of ball valves was ordered by him to be made by the defendant and was to comply with certain conditions as regards pressure-it being made known to the defendant that they were required for the E. I, Ry. Co. in connexion with vacuum brakes; and the plaint apparently intended to make a case that not only was this requirement a part of the indent which formed part of the contract, but that, independently of what is contained in that; indent by way of description of the goods, the plaintiff made known to the defendants the purpose for which the goods were required, so as to show that he relied upon the defendant's judgment and that he relied upon the defendant's skill, with the result that there was an implied warranty by the defendants that the goods would be fit for the purpose for which they were ordered. The case made is that the order was sent by cablegram from Calcutta to London, that it was accepted by cable from London, that the contract was C. I. F., that the goods came to Calcutta, that the goods were tendered to the E. I. Ry. Co., who rejected them, that before the goods were tendered to the E. I. Ry. C, the plaintiff in Calcutta paid a sum of Rs. 5,765 as customs duty in Calcutta, that after the railway company had rejected the goods the plaintiff gave notice of rejection to the defendant company, and that, accordingly, the defendant company is liable to the plaintiff in damages including special damage for the sum paid as customs duty and certain other sums. As the goods were bought C. I. F., I will take it that the learned Judge was right in thinking that the fact that the goods were shipped to Calcutta did not avail the plaintiff at all. I will assume that the fact that the customs charges were paid in Calcutta is a mere incidental matter swelling the damages and is not a matter on which the plaintiff can rely.

(3.) There remain two matters on which the plaintiff can rely in contending that a part of the cause of action took place in Calcutta. One is that his offer was sent from Calcutta by cable to London, and the other is that he rejected the goods-which he did by sending the defendants a communication from Calcutta or by informing their representative in Calcutta. It is said very properly by Mr. Page that the pleading of the plaintiff is not clear on the question of his sending the notice of rejection to the de-fondant company from Calcutta and it is further said that the defendant had applied for certain particulars and that some of the particulars which he had applied for were refused.