GULABCHAND SITARAM MARWADI Vs. LAXMINARAYAN BALMUKUND MARWADI

JUDGEMENT

(1.) THIS is an application in revision under Section 25, Provincial Small Cause Courts Act, to set aside the decree, dated 30th September 1942, passed by the Court of the Subordinate Judge, First Class, Buldana, empowered under Section 18, C.P. Courts Act. The plaintiff-applicant sued to recover a sum of Rs. 553-4-0 from the defendant-non-applicant. The plaintiff's ease was that on 1st December 1941, he sold 12 khandis of cotton to one Balu Onkar at Rs. 96 per khandi. On 4th December 1941, Balu Onkar took delivery of 6 khandis of cotton valued at Rs. 576 and paid Rs. 26 towards a part payment of the price. The balance outstanding was Rupees 550. He promised to pay this amount to the plaintiff. Balu Onkar sold the cotton to the defendant at Rs. 100 per khandi. The plaintiff's case is that the defendant purchased the cotton of the plaintiff through Balu Onkar and that the defendant promised to pay the amount of Rs. 550 to the plaintiff. The defendant gave a chitti dated 5th December 1941. The terms of the chitti were as under: To Panditji Lachhminarayanji NandkumarBiramin at Malkapur. Accept compliments of Lachhiminarayan Balmukund from Buldana. Further, at the instance of Balu Onkar Wishnath the man of Gulabchand Sitaram, will come. So you will please pay him rupees five hundred and fifty. Sliti Poh badi 2, Samvat 1998. (Dated 5th December 1941). By the pen of Lachhminarayan with obeisance.

(2.) THE defendant denied the liability. He pleaded that there was no privity of contract between him and the plaintiff; that the defendant never undertook to pay the amount to the plaintiff. He admitted execution of the chitti dated 5th December 1941 and pleaded that it was given at the instance of Balu Onkar. The contract between him and Balu Onkar was that the cotton was to be of Zarila quality (56/3) and that the price was payable, on sale of cotton. The cotton was not of the quality contracted for, was not sold and he was not liable to pay the price to Balu Onkar. The defendant is not liable. The plaintiff went into the witness-box and examined Vishwanath as a witness in support of his case. The defendant went into the witness-box and examined three witnesses, viz., Laxminarayan Nandkumar, Balu Onkar and Rahimatulla. The lower Court has found that there was no privity of contract between the plaintiff and the defendant, that there was no novation of the original contract, that the plaintiff never released Balu Onkar from liability and agreed to accept the defendant as liable for the balance of the unpaid price. This is a Small Cause Court revision. There is ample evidence to support the findings arrived at by the trial Court. The trial Court was justified on the evidence on record to come to the conclusion it has done. This is not liable to be challenged in revision. The learned Counsel for the applicant challenged the decree on two grounds; (1) that the Court should have framed the point for determination, " whether Ex. P-1 constituted a legal agreement between the parties and if it could be enforced in law," and (2) that even if there was no privity of contract between the plaintiff and the defendant the plaintiff is entitled to recover the price as the defendant had purchased the cotton belonging to the plaintiff through Balu Onkar, and that the defendant had executed the chitti (Ex. P-1) for payment of the amount to the plaintiff.

(3.) THE decision in Daw Po v. U Po Hmyin 27 A.I.R. 1940 Rang. 91 is not inconsistent with the view taken in Subbu Chetti v. Arunachalam Chettar A.I.R. 1930 Mad. 382. It is not necessary for the purpose of the decision of the present case to formulate with precision the exceptions recognised in India as regards the principle that a stranger to a contract cannot sue on an agreement which is for his benefit. The plaintiff's case is not covered by any of the exceptions stated in Subbu Chetti v. Arunachalam Chettar A.I.R. 1930 Mad. 382. The finding of the lower Court is that the defendant did not agree to pay the amount to the plaintiff. In view of the finding arrived at by the trial Court the plaintiff is not entitled to sue for the price of the cotton even though the defendant has the cotton belonging to the plaintiff and has got lit insured in his name. The plaintiff has misconceived his remedy. He ought to have sued Balu Onkar for the recovery of the price. He has not joined him as a defendant and the claim is still within limitation. The defendant is liable, if at all, to Balu Onkar. The plaintiff is not entitled to sue the defendant on the basis of the chitti dated 5th December 1941 (Ex. P-1). The lower Court has correctly construed the terms of Ex. P-1, and I affirm it. The revision application fails and is dismissed with costs. Counsel's fee Rs. 15.