VISHWANATH BHARTIYA Vs. RAM NARAN DAS JAGANNATH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit in which the plaintiff sued the defendant for a sum of Rupees 6127-8-0 alleged to be due to the plaintiff from the defendant in respect of the price of seventy-five bales of gunny bags. On 3rd March 1937 the plaintiff contracted to sell one hundred and fifty bales of gunny bags to the defendant. Seventy-five bales fell to be delivered on 15 Chait Sudi and seventy-five on 15 Baisakh Sudi, i.e. on 25 May 1937. The seventy-five bales deliverable on 15 Chait Sudi were duly delivered and paid for. The seventy-five bales deliverable on 25 May 1937 however were not, according to the defendant, delivered to him. The defendant therefore repudiated the plaintiff's claim for the price of these bales. The plaintiff maintained that he in fact did deliver seventy.five bales in Baisakh Sudi to the defendant. Para. 6 of his plaint is as follows: That consequent upon the delivery of the goods to him the defendant became liable to pay to the plaintiff the price of the goods within ten days thereof, that is up to 4 June 1937. The plaintiff has paid the price of the goods to Messrs. Jwala. Parasad Panna Lal on 10 Jeth Badi 1994, corresponding to 4 June 1937.

(2.) The facts of the case are not really in dispute. On the date of delivery of the bales in suit the defendant through his servant intimated his desire to have a delivery order rather than to accept delivery of seventy-five bales from the plaintiff's godown. The plaintiff accordingly handed to the defendant's servant a delivery order on Messrs. Jwala Prasad Pannalal. According to the terms of this delivery order Jwala Prasad Pannalal were ordered to hand over seventy-five bales of gunny bags to the defendant. When the delivery order was presented to Jwala Prasad Pannalal however that firm did not in fact have the goods in stock. This is clear from the plaintiff's witness, Panna Lal, a partner of the firm. He states definitely in the course of his examination-in-chief that he had no goods with him. Instead of delivering the seventy-five bales of gunny bags to the defendant, Jwala Prasad Pannalal, handed to him certain parchas addressed to other firms. Apparently the defendant was unable to secure from these latter firms delivery of the goods and it appears that he accepted from one firm after another parches, that is orders for the delivery of the goods, instead of the goods themselves. By 4 June 1937, when payment according to the plaintiff was due, the seventy-five bales had not in fact been delivered to the defendant nor have they yet been delivered to the defendant. The plaintiff however avers that relying upon the fact that he had received no intimation from the defendant that the seventy-five bales of gunny bags had not been delivered from Jwala Prasad Pannalal he paid Jwala Prasad Pannalal the price of these seventy-five bales. In these circumstances the plaintiff claims that he is entitled to recover the cost of the seventy-five bales from the defendant.

(3.) The defendant pleaded that inasmuch as he had not in fact received the goods which the plaintiff undertook to deliver he is not liable for the price. The learned Judge in the trial Court has held that the defendant did not receive the goods which he contracted to purchase from the plaintiff and that the plaintiff had failed to prove any custom of trade under which he was entitled to claim the price of the goods from the defendant despite the non-delivery of the goods. In the result he dismissed the suit. In appeal it was argued in the first place that there had been in law delivery of the 75 bales of gunny bags to the defendant. Reliance was placed upon Section 33, Sale of Goods Act. Section 33 is in the following terms: Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer of any person authorized to hold them on his behalf.