V R NAIK Vs. BALVANT SITARAM MAHINDRE

JUDGEMENT

(1.) This is an appeal from an order of Sir Norman Macleod restraining the defendant from proceeding with the suit No. 45 of 1335 Fasli year filed by him against the plaintiff in the Court at Nandod in the Dominions of His Exalted Highness the Nizam of Hyderabad pending the hearing and final disposal of this Bombay suit.

(2.) The appeal raises questions of some importance and difficulty, first, as to the jurisdiction of the learned Judge to make an order of that nature and, secondly, whether the jurisdiction was properly exercised on the materials before him. Unfortunately we have no judgment of the learned Judge and no personal notes of his. We are informed by counsel that the case was heard in the learned Judge's private room, and that, accordingly, it was impracticable for counsel to take notes of the judgment. However that may be, we regret that we are without the assistance which we should normally get and which we should particularly value in the present case.

(3.) Shortly stated the facts are that by a contract made in Bombay on August 16, 1923, the plaintiff agreed to sell certain machinery to the defendant for the use of the latter's factory at Nandod in the Hyderabad State. The specification, Ex. A, to the plaint, and the letter from the plaintiff of even date, Ex. 1 to the written statement, show that delivery was to be F.O.E. Bombay and that payment was to be made in Bombay, and that Rs. 12,500 were paid forthwith in part payment. Some disputes appear to have arisen between the parties as to the nature of the goods delivered, and, accordingly, we find by a letter of September 25, 1924, Ex. B to the plaint, that the plaintiff was prepared to make good a shortage in certain articles, and to allow a sum of Rs. 1,820 off the contract price. That letter stated that the shortage was to be supplied by the plaintiff to the Naik Factory at Nandod in fifteen days. But it seems to us that it was not intended that the terms of delivery of the main contract, viz., F. 0. R. Bombay, were thereby to be altered.