GORDHANDAS NATHA LAL Vs. GORIO LTD

JUDGEMENT

(1.) The plaintiff filed this suit to recover from the defendants a sum of Rs. 12,000 odd on the ground, that the defendants failed to deliver the goods which the plaintiff had contracted to purchase from them. He alleges that he paid the customs duty and clearing and other charges to the defendants on the basis that the goods of which the ship ping documents were tendered to him were of the contract quality. After these charges were paid it was found by the Plaintiff that the goods were not of the 9ontract quality. The defendants contend, lnter alia, that they were not personally liable to the plaintiff as they were acting only as agents for an Italian firm as mentioned in para. 1 of their points of defence. It appeals that thereafter the defendants applied for the issue of a commission to examine certain witnesses to determine whether the defendants were only agents, or, in the alternative, that they were not liable to the plaintiff in the transactions as alleged in their points of defence. On February 17, 1933, Blackwell, J., by consent, directed the following two issues to be tried as preliminary issues: 1. Whether the defendants were acting as agents in respect of the contracts in suit 2 and 2. Whether the defendants are liable to be sued in respect of the contracts in suit and/or are personally liable thereunder?

(2.) I have, therefore, to determine these two issues. It appears that the plaintiff passed in favour of the defendants two documents, which are called indents, on February 20, a March, 4, 1932, respectively. These indents are signed by the plaintiff and are addressed to "Messrs. Gorio, Ltd., Bombay, Karachi, Calcutta and Milano. The material terms of these documents are the following: We, the undersigned, do hereby agree to purchase from Messrs. Gorio, Ltd. of Bombay, the undermentioned goods shipped, being shipped, or to be shipped to Bombay by steamers on the conditions specified on the reverse.

(3.) This particular clause is translated into Gujarati and the Gujarati translation is printed immediately after the clause in English. Then follows a certain stipulation in the event of the indent being for marble tiles or slabs. The present litigation does not touch that clause at all. Thereafter certain description of the goods, the price, quality and the quantity, and the shipments are mentioned. The document is then signed by the plaintiff. On the reverse there are numerous conditions printed in small type. The first four conditions run as follows: 1. (sic) I/we hereby authorise you through your agents or your manufacturers to purchase and ship on my/our account and risk the whole or portion of the following goods at the prices specified. This indent is to remain in force for 4-6 weeks after its receipt at its destination. Your telegram accepting this order shall be subject to confirmation by letter as regards correctness of details. Any refusal by wire to place the order at limits fixed may be set aside within three days should you be able to place the order meanwhile. If the limits given are subsequently increased or the indent is referred back for confirmation, the time for shipment shall be deemed to be increased by the number of days in which the delay is caused unless otherwise stipulated. For any bonus or allowance made by manufacturers I/we shall have no claim. Remarks made on samples on which the indents are based shall be taken as part of this indent All risk of voyage, sea-damage, breakage and leakage will be on my/our head. 2. I/we agree to accept your invoice price of the purchase made as correct without further proof, and to accept on presentation and pay at maturity your bill or bills or your agent's draft or drafts or promissory notes drawn on menus for the in voice value with all charges and interest through any Bank 30 or 40 days after sight D-A or D-P. No. objection or dispute shall be raised by me/us as to shipment, quality or damage, or otherwise unless the draft is first accepted and paid by me/us, agreeing that such disputes should be settled by arbitration as provided for below. 3. We agree to pay you or the bank the amount of the bill or bills, draft or drafts at the rate of exchange ruling on the date of payment. If we fail to pay the bill or bills, draft or drafts on or before the due date of payment, we shall be liable to pay the same at the rate of exchange prevailing on the date on which we actually make the payment; you or the Bank, however, will, be at liberty (without being obliged) at any time after the due -date of payment and before actual payment by us, to fix the rate of exchange at the prevailing rate and on notice being given to us of the rate having been so fixed, we agree to pay you or the bank the amount of the bill or bills, draft or drafts at the rate of exchange so fixed.