RAMESHWARDAS PODDAR Vs. PAPER SALES, LTD

JUDGEMENT

(1.) On November 18, 1942, the defendants sold to the plaintiff 640 gross, 31 1/2" X 41 1/2", 70 lbs. per gross, in all 44,800 lbs. at as. 11 and pies 9 per lb. Dalmia White Duplex paper. The total purchase price for the goods came to Rs. 32,900, and the plaintiff paid that price to the defendants on that very day. On that very day also the defendants handed ever to the plaintiff a delivery order issued by the Dalmia Cement and Paper Marketing Company, Limited, in favour of the defendants bearing No. 370 dated November 18, 1942, for 640 gross.

(2.) On the same day, namely, November 18, 1942, the plaintiff sold the goods to another firm called Pavri Sons & Co, and the plaintiff in his turn handed over the delivery order to Pavri Sons & Co. endorsing thereon as follows :- "Please deliver to bearer." Messrs. Pavri Sons & Co. failed to obtain delivery pursuant to this order from the Dalmia Cement and Paper Marketing Company, Limited. Messrs. Pavri Sons & Co. handed back the delivery order to the plaintiff. The plaintiff thereupon wrote to the defendants pointing out that no delivery had been obtained under the delivery order and asking for immediate delivery. The defendants asked the plaintiff to attend at the godown of the Dalmia Cement and Paper Marketing Company, Limited, on November 21, 1942, to take delivery of the goods. The plaintiff did so, but failed to obtain delivery. The plaintiff further waited at the defendants instance till November 27, 1942, but no delivery was given to him, and he has filed this suit for the return of the price paid by him, namely, Rs. 32,900 on the basis of a total failure of consideration and also asking for damages for breach of contract on the part of the defendants.

(3.) The main and salient facts of this case are not disputed. It is not disputed that the plaintiff purchased the goods and paid the full price, nor is it disputed that the plaintiff failed to obtain delivery of the goods pursuant to the delivery order given to the plaintiff by the defendants, A very curious defence is taken in the written statement and strenuously urged before me at the hearing. The defendants plead in their written statement that it was agreed between them and the plaintiff that the defendants should give delivery of the goods to the plaintiff by transferring and handing over the delivery order to the plaintiff against payment of the price of the goods by the plaintiff to the defendants, I have not permitted Mr. S.M. Shah for the defendants to lead evidence whether in fact such an agreement was arrived at or not, because, in my opinion, even if the defendants succeed in establishing that such an agreement was arrived at, it would make no difference whatever to the legal position because, even assuming that there was such an agreement between the parties, the written statement on the face of it discloses no defence whatsoever to the plaintiff's case.