AMARA SESHAYYA AND BROS Vs. CHALAVADI VENKATASWAMI

JUDGEMENT

(1.) The parties in this case are two firms of groundnut merchants, plaintiffs doing business in Guntur and defendants in Ongole. On 1 January J931 they entered into a contract by which plaintiffs were to purchase from defendants 318 bags of groundnuts at Rs. 6-12-0 per bag to be delivered on the 25 January. It is common ground that the time for delivery was subsequently extended to 20 February. Delivery however was not to be made to the plaintiffs themselves, but to one of four exporting companies referred to in the contract, and plaintiffs had to send to the defendants at least six days before the due date what is known as a transfer form." On this transfer form would be intimated the name of the firm to which the groundnuts were to be delivered.

(2.) The case of the plaintiffs is that they sent on the 12 February a registered letter to the defendants in which they intimated that delivery was to be made to Strauss & Co. at Guntur, and that that letter was refused by the defendants. On the same day the plaintiffs say that they wrote to Strauss & Co. to inform them that the defendants would make the delivery, and to request them to take delivery and make payment to the defendants. Delivery was not made by the defendants and the plaintiffs sued them for damages. Their suit was dismissed and they have accordingly filed this C. E. P. On the issue of fact the judgment of the learned Subordinate Judge can hardly be called satisfactory. Both the registered letter and the letter to Strauss & Co. were produced. There can be no doubt whatever that the former was despatched on the date mentioned by the plaintiffs and was correctly addressed. It bears the endorsement "refused" in English, but no one has initialed the endorsement. The Subordinate Judge holds that as no postman has been examined there is no proof that the letter was refused. The second letter was produced by a member of the establishment of Strauss & Co., but as it boars no seal or stamp of the company or any initials in token of receipt the Subordinate Judge holds that there is nothing to show that it was sent to the company. Now this appreciation of evidence might perhaps be appropriate in a criminal prosecution where every point must be proved against an accused beyond reasonable doubt, but it is hardly adequate in the present suit.

(3.) The Subordinate Judge does not venture to press his findings to their logical conclusion. If the second letter were not sent it must have been fabricated for the purposes of this suit; if the first were not refused there must have been some collusion between the plaintiffs and the postal authorities in Ongole, or some quite extraordinary neglect of duty on the part of some postman. I can see nothing whatever in the case to suggest either fabrication, collusion, or neglect of duty. The registered letter was undoubtedly sent on 12 February; defendant 2 in his evidence adrmts that he was at home on the day when it would normally have been delivered; he also admits that if he had made delivery according to the contract rate he would have suffered a loss; and in April 1931,. when plaintiffs sent another registered letter claiming damages, that letter also was returned as refused. My impression after having the case argued is strongly in favour of the plaintiffs on the question of fact, and I have dealt with this question at some length in order to clear the plaintiffs of the charge of dishonest dealing, which would appear to be implicit in the learned Subordinate Judge s-judgment.