AFSHAR M M TACKI Vs. DHARAMSEY TRICAMDAS

JUDGEMENT

(1.) This is a suit to recover Rupees 3,00,000 pursuant to an agreement in writing dated 7-3- 1944, or alternatively as money paid for a consideration which has wholly failed. The defendant admits the making of the agreement and payment to him by the plaintiff of the sum sought to be recovered. He contends (inter alia) that the consideration has not failed wholly, that on the true construction of the agreement the money is not repayable, and that the agreement has been terminated by frustration.

(2.) The contract out of which the suit arises is admittedly contained in two letters exchanged in Bombay on 7-3-1944. That addressed by the defendant to the plaintiff reads as follows: I agree to purchase for you and on your behalf 300 bales Grey cotton yarn merchantable quality each bale weighing 400 lbs. of which 100 bales shall be of 20 x 2S and 200 bales of 42 x 2S counts and to ship the same from Jaffarabad to Khoramshare. You will provide to me the cost of purchase and all other expenses incidental to conveying the goods from Bombay to Jaffarabad such as carting, railway freight, storage and other charges, which shall be paid to me on presentation of the invoice. On my loading the goods on a country craft and handing over to you the shipping documents, I will be entitled to receive from you Rs. 25 per bale and 5% commission on the total cost involved. In case I am unable to effect shipment of the goods or if the country craft, for any reason, fails to cross the territorial waters of Jaffarabad, I will repay to you the cost paid as per my invoice and all other expenses incurred in taking the goods to Jaffarabad and I will lose my right to claim from you as remuneration Rs. 25 per bale and 5% commission and will refund to you the same if paid.

(3.) Apart, of course, from transposition of the parties, that addressed by the plaintiff to the defendant differs materially from its twin brother only in that it contains the words "from Jaffarabad" after the words "shipment of the goods;" thereby making abundantly clear that which is common ground, namely, that the shipment contemplated was shipment from Jaffarabad and nowhere else, in the last paragraph. Jaffarabad is in Janjira State, Kathiawar, and Khoramshare is a Persian Gulf port.