RAMESHAR LAL BISHESHAR LAL Vs. JAINARAIN NATHU RAM

JUDGEMENT

(1.) This is an appeal by firm Rameshar Lal-Bisheshar Lai, defendant 2, against whom a suit of the plaintiff firm Jainarain Nathu Ram has been decreed by the Courts below. As a great deal has been said before me in the course of arguments-regarding the pleadings, I propose to set them forth in some detail. The plaintiff impleaded firm Hari Ram and Parshottam Das as defendant 1 and firm Rameshar Lal-Bisheshar Lai, as defendant 2. His case was that in the beginning of January 1927, he entered into a contract with the Krishna Sugar Works Jhusi, Allahabad, for the supply of 2,500 maunds of gur at the rate of Rs. 5-4-0 per maund. The plaintiff on 26 January 1927, arranged with Hari Ram-Parshottam Das either for the supply of this quantity of gur to Jhusi Sugar Mills at the rate of Rs. 4-14-0 per maund or arranged for the purchase of this amount of gur from them at the rate of Rs. 4-14-0 per maund. In the plaint it is stated that jthe plaintiff sold his contraot with the Jhusi Sugar Works to the defendants first party. About the same time Harj Ram-Parshottam Das entered into an shar Lai for the supply of the said quantity of gur at Rs. 4 ll-7i per maund. Here again in the plaint it is stated that the defendants first party sold their rights in respect of the aforesaid contract which they had acquired from the plaintiffs to defendants second party and made them liable as their representatives foe the supply of the gur aocording to the terms of the aforesaid contract.

(2.) It is then alleged that the gur was supplied to the Jhusi Sugar Works, but the defendants did not pay profits at the rate of six annas per maund to the plaintiffs and the plaintiffs therefore prayed for a decree against either of the defendants. Both the defendants filed written statements, defendant 1 claimed exemption on the ground that he had not received anything from the Jhusi Sugar Works because the plaintiff in collusion with the defendants second party instructed the Jhusi Mills to pay the price of the goods in question directly to defendants second party. He also alleged that there was no assignment of contract, but the plaintiffs purchased gur from him and as such the seller, namely, the defendant and not the purchaser, namely the plaintiff, was entitled to receive some money. Defendants second party alleged that no cause of action accrued to the plaintiff against them inasmuch as no contract was enter, ed into between these defendants and the plaintiff. This was the main plea taken in the written statement and perhaps the only plea and the meaning that can be assigned to it is that the defendants second party claimed exemption on the ground that there was no privity of contract between them and the plaintiff.

(3.) The Court of first instance in an excellent judgment came to the conclusion that the contract between the plaintiff and the defendants first party was not of an assignment of the plaintiff's contract with the Jhusi Sugar Mills, but a contract for the sale of a fixed quantity of gur by the defendant to the plaintiff and as such the plaintiff was not entitled to receive anything from the defendants first party. It went on to say that the defendants second party received the price of gur from the Jhusi Mills at the direction of plaintiffs who clearly treated them (defendants second party) as their own agent without making defendants first party intermediaries and this fact exonerates defendants first party from all liabilities, specially when defendants second party have by a compromise entered into between them and the Jhusi Mills received the price of the gur supplied to the Mill. As regards defendants second party it came to the conclusion that the plaintiffs were entitled to the sum olaimed from the defendants second party inasmuch as the latter had received the price from the Jhusi Sugar Works upon a letter of authority given by the plaintiff to defendants second party and it did not matter that the latter had per-haps not received the full amount from the Jhusi Sugar Works. The question of privity of contract was not discussed at length by the Court of first instance. The lower appellate Court confirmed the decree of the Court of first instance exempting defendants first party although the plaintiff claimed a decree against defendants first party as well. The lower appellate Court was of the opinion that the proper issue in the case upon the question of the amount of money received by defendants second party from the Jhusi Sugar Works was did defendant 2 not get full price of the gur from the Jhusi Mills? and it came to the conclusion that the defendant had not been able to prove that he did not receive the full price of the gur from the Jhusi Sugar Works simply by showing that his suit against the Jhusi Sugar Works was compromised. The defendant second party has come up in second appeal and the plaintiff has filed cross-objections. The case of the defendants second party is that he is not liable to the plaintiff and that in any view of the case the plaintiff cannot be entitled to anything in excess of what was actually realised by the appellant. The plaintiff has filed cross-objections and reiterates the plea that he is entitled to a decree against defendants first party as well. There is also a plea that the plaintiff was entitled to interest as awarded by the trial Court against defendants second party. I propose to decide the cross-objections first. As I stated in the very beginning that although the case of the plaintiff was that the contract between him and the Jhusi Mills was assigned to the defendants first party yet the case of the defendants first party was that there was no assignment of such a contract, but the documentary evidence on the record shows that the plaintiff entered into a contract of purchase of a quantity of gur from the defendants first party.