RADHAKISHEN MULL Vs. MAGANLAL BROTHERS

JUDGEMENT

(1.) The plaintiffs as buyers claim from the defendants, the sellers, damages for non-delivery of 25 cases of umbrella ribs described as "25 x 8 Big Ball Steel Flex. Ribs Japanese Association Quality." The contract asserted by the plaintiff is contained in the defendants printed document, called an indent, dated 20 January 1939. By this indent the plaintiffs requested the defendants to supply or to instruct their e friends abroad to buy for the plaintiffs and to ship, if possible, the goods above mentioned upon the terms and conditions stated on the reverse of the form. After setting out the goods as I have detailed earlier, the indent provided that each case should contain 40 dozen, the price being 2 yen per dozen C.I.F., net quality, shipment March 1989. In his evidence the plaintiff said that goods shipped from Japan ordinarily take from 1 month to 11/2 months in transit. They should, therefore, arrive in Calcutta at the e April, or the early part of May 1987. It is common ground that they have never been delivered. The plaintiff agreed in his evidence that the duty and landing and other f charges were payable by him. The contract price of 2 yen per dozen at the prevailing rate of rupee exchange together with the other charges would make a total cost of Rs. 2 per dozen, being the expense of landing the goods in Calcutta.

(2.) Chhaganlal Bagri, who is a dealer in Calcutta in umbrella materials, stated in evidence that the market price of the suit goods in April/May 1937 was Rs. 2.8-0 to Rs. 2-10-0 per dozen. The defendants did not dispute this market price. The 25 cases of indented goods, each containing 40 dozen, makes a total of 1000 dozen, the cost which the plaintiff would have incurred had the goods been delivered amounting to Rs. 2 a dozen, and the market price being Rs. 2-8-0 to Rs. 2-10-0 per dozen, it follows that the difference was between eight annas and ten annas per dozen, making a total difference between the contract and market rates of Rs. 500 to Rs. 625 in respect of the total goods indented.

(3.) Jewanlal said that he is the proprietor of the defendant firm; that he ordered from Japan the plaintiffs goods at 1.95 yen per dozen, and that these goods were never delivered to him. In 1937 he had his own agents in Japan who would have shipped the goods if they had obtained them from the manufacturers. On 6 April 1939 and 20 May 1939, he wrote to his agents in Japan complaining of non-shipment of the suit goods as well as of other goods, and in cross-examination he produced copies of these letters. It was suggested to him in cross- examination that the suit goods had in fact been received by him and supplied to other merchants. This was denied by the witness. Supplies by the defendant firm of three lots of umbrella ribs in May 1937 to other dealers were specifically put to him. He said that these three lots were of different qualities to the suit goods, the two lots being 41 gauge and one lot of Fujita qualities. The indent specifies suit goods to "be Japanese Association quality." Relevant documents regarding the delivery of the three other lots bear out the evidence of Jevanlal that they were of qualities different to the suit goods. There is no evidence that the defendant firm supplied merchants other than the plaintiffs with goods similar to the suit. A witness was called on behalf of the plaintiff, Krishna Behary Manna, who is employed by a firm named Ashutosh Pal and whilst it was suggested to Jevanlal that he had supplied that firm with goods similar to the suit goods, no question upon this was put to the witness above mentioned.