DAMODHAR JHINGOOJEE JAIN Vs. ALLABUX SHEIKH YEWRAJ

JUDGEMENT

(1.) THE plaintiff and four other persona purchased a certain orange crop from the defendant for Rs. 2200. Rupees 2000 was paid at the time of sale, and it was agreed that Rs. 200 should be paid at the time of taking delivery. Out of the Rs. 2000 paid Rs. 700 was returned to the purchasers for payment to one Devi Prasad, a creditor of the defendant. When the purchasers attempted to take possession of the crop on the following day, they were resisted by Devi Prasad who had attached the crop in execution of a decree against the defendant's predecessor in title. The amount due to Devi Prasad was Rs. 1600 and he refused to give up possession unless Rs. 1600 was paid to him. In these circumstances the purchasers were unable to obtain possession. Subsequently the other purchasers transferred to the plaintiff their right to recover their share of the consideration that had been paid. The lower Courts have held that the purchasers were unaware of the nature of Devi Prasad's claim and they had not agreed to hold the defendant free from liability in respect of such claim. Those findings cannot now be challenged. The lower Courts have held that the plaintiff is entitled to recover the purchase money and interest thereon under Section 61, Sale of Goods Act. Against that decision the defendant has appealed.

(2.) TWO points have been urged in this Court. The first is that the purchasers could have obtained possession of the crop by paying off Devi Prasad, i.e. by paying an additional Rs. 900 out of their own pockets, and they cannot at the most claim more than Rs. 900 as damages. It was the duty of the defendant to deliver possession to the purchasers and the purchasers were under no duty to find an additional Rs. 900 out of their own pockets. The second point is that the transfer by the other purchasers of their right to the plain tiff was the transfer of a mere right to sue. In the cases cited in support of that proposition, the amount recoverable was not an ascertained amount. I think it is beyond dispute that a buyer is entitled to recover the money paid where the consideration for the payment of it has failed, and that right is specifically preserved under Section 61(1), Sale of Goods Act: see Piari Lal v. Mina Mal Balkishan Das Mathura Mohan Saha v. Ram Kumar Saha A.I.R. 1916 Cal. 136, and Pollock and Mulla's Commentary on the Indian Sale of Goods Act, p. 882. The plaintiff is suing to recover the consideration paid, an ascertained amount. The principle laid down by the Privy Council in Manmatha Nath Mullick v. Hedait Ali appears to me to apply. There they stated at page 271: In their Lordships' opinion what was assigned to the appellant was not a mere right to sue but a claim for a definite sum of money which the lessee was bound by his contract to repay to him. This would, their Lordships think, be an actionable claim to which Section 130 of the (Transfer of Property) Act would apply. The failure of the lessee to fulfil this obligation does not give rise to a claim of damages within the meaning of the clause in the lease but to a claim for reimbursement of the precise sum which the landlord had disbursed to meet the obligation.