NUNE SIVAYYA Vs. MADDU RANGANAYAKULU

JUDGEMENT

(1.) This is a consolidated appeal from a judgment and two decrees of the High Court of Judicature at Madras, dated 22 September, 1927, which affirmed a judgment and two decrees of the Court of the Subordinature Judge, Bapatla, dated 31 March 1923, and made in Original Suits Nos. 86 of 1919 and 83 of 1922. In Original Suit No. 86 of 1919, the appellants sue respondent 1, in appeal No. 64 of 1930, and his minor son, to whom he is guardian ad litem, respondent 2, in said appeal for damages for breach of contract in respect of five contracts of sale of bales of yarn made between the 10 and 19 August 1918, and this suit has been dismissed by the Courts below. In Original Suit No. 83 of 1922 respondent 1 in the above appeal sues the appellants for an amount due in respect of goods supplied, and this suit, out of which the second appeal arises, has been decreed in the respondent's favour, the only defence of the appellants having been that the amount so due has been taken into account in their claim against the respondent in Suit No. 86 of 1919. The five contracts (Exs. A, B, C, D and E) were for the purchase of 155 bales of yarn in all, the respective quantities and description being as follows : A.-Ten Gaigoda yarn bales and five Raipur yarn bales. B.-Forty-five Tinnevelly yarn bales. C.-Sixteen Astodia yarn bales. D.-Forty-five Goka yarn bales and ten Jemsetjee yarn bales, and E.-Twenty-four Broach yarn bales.

(2.) Up to 11 October 1918, delivery had been made and accepted of five Gaigoda bales under contract A, 30 Tinnevelly bales under B, and seven Broach bales under E. No question arises as to the ten Jemsetjee bales under D, and they need not be further referred to. It may be taken, as the admitted result of the findings of the Courts below, that no further delivery was offered or asked for until 19 December 1918. The respondents had not paid in full for the bales already delivered, and respondent 1 admits that he was indebted to the appellants for over Rs. 26,000 by the end of October. This indebtedness however was subsequently discharged by him. It may be added that a serious fall in prices began in the month of September, with further gradual falls in the next three months. On 19 December 1918, the appellants sent a lawyer's letter to the respondents in the following terms : "You have struck a bargain with the people of Chirala Dukanam (shop) pertaining to our clients, Nune Ranganayakulu Garu and Panakalu Garu, agreeing to take delivery from time to time of 160 bales of different sorts of yarn according to different rates and to pay the amount forthwith. Out of that you have taken delivery from time to time of 54 bales and paid some amount. Still there is due about Rs. 24,000 and interest in respect thereof. Out of the bales to be delivered to you, 5 bales of No. 40, Gayigoda yarn and 5 bales of No. 40 Rayapur yarn, in all 10 bales, are ready at Chirala and 45 bales of No. 26 Goka yarn at Guntur. You are hereby informed that you should within 31.12.18 pay money and take delivery of the 10 bales of Gayigoda and Rayapur yarn, that you should take delivery of No. 26 Goka bales at Guntur if you so please, that if you do not agree to the same and want the goods to be sent to Chirala alone, our clients are ready to despatch them, that you should, by return post, inform our clients about your opinion as regards this, that intimation would be given as soon as the other goods are ready, that, if you fail to take delivery of the goods that are ready, you would be liable to the entire loss caused to our clients, that you should forthwith pay also the principal and interest due by you to our clients as per khata in respect of goods previously taken delivery of and that, otherwise, a suit would be instituted."

(3.) To this the respondents sent a reply, also drawn by a lawyer, and dated 3 January 1919 in the following terms: "Notice issued by M. R. Ry. Govindarajula Venkata Srinivasa Rao, High Court Vakil, Madras, on behalf of Maddu Ranganayakulu Garu, to M. R. Ry. Leka Lakshmi Narasimham Pantulu Garu. My client gave me the notice dated 19 December 1918 sent to him by you on behalf of Nune Ranganayakulu Garu and do. Panakalu Garu, residents of Guntur, with instructions to give a reply thereto with the matters herein below. I have therefore to inform you as follows: