BAIJ NATH PRASAD Vs. JOHAR CHAND-MAUGI LAL

JUDGEMENT

(1.) This is a second appeal by the plaintiff whose suit has been dismissed by the two lower Courts. The suit of the plaintiff was for a sum of Rs. 1,263-1-9 principal plus interest due to the plaintiff on account of the alleged purchase of sugar as commission agent on behalf of the defendant. The plaint set forth in para. 1 of the plaint that he carries on the business of commission agency and purchase and sale of sugar, money lending and hundi business in Bazar Barhaj in Gorakhpur district. The defendant carries on business of purchase and sale of sugar at Indore. The plaint sets forth that there were two previous transactions between the parties and the main transaction in question was on a date corresponding to 1 April 1922, when the plaint sets out that the defendant purchased 61 bags of sugar, the cost of which amounted to Rs. 3,925-6-3 which was debited to the defendant in the plaintiff's account book. This para. 5 of the plaint does not say that the defendant purchased through the plaintiff as a commission agent, and in the previous para. 3 alluding to the earlier transactions it was stated that the purchase was made from the plaintiff's firm. The defence was that the defendant's gumashta went to the plaintiff's firm in Barhaj to purchase sugar and the plaintiff showed a sample, and 61 bags of sugar were purchased on- 29 March 1922 with this condition that the plaintiff should immediately within three days get the 61 bags of sugar according to sample sieved and that the plaintiff should hand over the railway receipt to the gumashta of the defendant. It was further alleged that the plaintiff did not get the sugar sieved, nor send the sugar nor give the railway receipt to the gumashta and that the gumashta therefore came back after rescinding the contract for the purchase of the sugar.

(2.) It was further pleaded in para. 5 that after two weeks the plaintiff sent 40 bags of sugar and in May 1922, the plaintiff sent 21 bags of sugar, that this was contrary to the agreement and that the defendant wrote to the plaintiff that he should not have sent the goods as the contract for the purchase had been rescinded and that the goods were lying with the defendant and that the plaintiff should take away the goods in whatever way he liked. The defendant kept the goods of the plaintiff as agent of the plaintiff and kept the plaintiff informed of this and eventually on 25 January 1923 and later dates the defendant sold 61 bags of sugar at the market rate for Rs. 3,096-6-3 and, after deducting the railway freight and miscellaneous charges including commission agency, Rs. 90-8-0, the defendant remitted Rs. 2,738-11-6, the total balance to the plaintiff in 1923. The defendant therefore claimed that no sum was owing from the defendant to the plaintiff. Although the plaintiff did not put forward the case that he acted as a commission agent and although this point does not arise in the issues framed by the Court of first instance, the point was raised in first appeal as to whether the plaintiff was only a commission agent and how does it affect the defendant's right to cancel a contract. The finding of fact of the lower appellate Court was that the contract was made by the defendant with the plaintiff and the plaintiff was to supply the sugar and there was no privity between Ram Baran and the real purchaser of the sugar including Suraj Mai, and the Court concludes: So Suraj Mai only made a contract with the plaintiff for the purchase of 61 bags of sugar.

(3.) Suraj Mal was the Gumashta of the defendant. This question has been argued again in second appeal, but we see no reason to set aside the finding of fact of the lower appellate Court. Another question which was argued was whether as a fact the lower Court overlooked the evidence of Suraj Mai. This evidence was taken on commission in Indore and it is alluded to by the first Court but the lower appellate Court has stated that it was not available. learned Counsel therefore laid this evidence before us. The evidence supports the finding of fact of the lower appellate Court that the term of the contract was that the goods were to be sent within a very short time, as Suraj Mai state's that the goods were to be sent within three or four days. This finding had already been arrived at on other evidence by the lower appellate Court and therefore we see no reason why it should be set aside. learned Counsel desired to use this evidence of Suraj Mai to show that the finding of the lower appellate Court was not correct as to whether the plaintiff had acted as a principal or as a commission agent. The evidence of Suraj Mai was that he purchased three or four times from the plaintiff and that the plaintiff agreed that he would send the consignment of sugar in question within three or four days, otherwise the goods would not be accepted. In cross- examination he does say that the sugar was purchased through the plaintiff from the bazar and that the transaction was settled in the bazar and entered in the plaintiff's arhat and that the plaintiff was commission agent in this transaction. We do not consider however that Suraj Mal meant to imply that he made a contract with Ram Baran, the shop-keeper in the bazar, because he does not say so. It is clear that Suraj Mal looked to the plaintiff as a principal in the transaction and hence the plaintiff undertook to send the sugar within three or four days. The finding therefore of the lower appellate Court appears to be in accordance with the evidence and a further consideration of the evidence of Suraj Mai does not afford any reason to set that finding of fact aside. The only remaining point which was argued was the eighth ground of appeal which was: Because in any case the defendant was not justified in taking delivery or in disposing of the goods in open market if he wanted to repudiate the contract.