DHURVAS J SUBBAYYAR AND BROS BY ONE OF ITS PARTNERS DHURVAS J SUBBAYYAR Vs. JKMUNUSWAMI AIYAR AND SONS BY THEIR MANAGING PARTNER JAMBU SUBBARAMA AIYAR

JUDGEMENT

(1.) These appeals arise out of a contract for purchase and delivery of goods entered into by the appellant in each of the cases with the respondent. The contract has been filed as Ex. D, which, after describing the goods and the place where the goods were to be got from and delivered in paragraphs 1 and 2, goes on to say that the purchaser shall be bound by the contract he (respondent) entered into with his vendors and should take delivery of the goods. As regards the delivery of the goods and the advance, paragraphs 5, 6 and 7 are material. They run as follows: On the very day on which the aforesaid two persons (their vendors) inform that the aforesaid bales have arrived here you should pay money and take delivery of the bales. Whenever the afore-specified bales are issued from the Mill you should take delivery of the same. We are not liable therefor. As the afore-specified advance money is with us without interest, as the bales are issued, according to the proportion of the advance, you should deduct for the bales at the rate of Rs. 190 and at the rate of Rs. 160 per bale.

(2.) Then Clause 8 says: If the bales are received from the aforesaid two persons and if we have not informed you of the same we are liable for the matters of loss that may result therein. In the matter of your not taking delivery after we informed you of the receipt, you yourself are liable for the loss that may arise therein.

(3.) This is signed by the respondent firm and is addressed to the appellant firm. Suit No. 27 of 1921 which led to appeal No. 220 of 1921 was filed by the present respondent against the appellant for recovery of damages for breach of contract, the allegation being that the appellant has not performed his contract in taking delivery. The particulars are given in the plaint and the claim, after credit is given for the advance, is for Rs. 8,860 as detailed in Scheduel A or in the alternative for Rs. 3,460 as detailed in Scheduel B with interest and costs. Suit No. 58 of 1921 which refers to Appeal No. 221 of 1921 was filed by the present appellant against the respondent for the. recovery of the advance paid with interest. His case is that under this contract he paid advances, that the respondent did not deliver the goods and therefore the contract was broken by the respondent and that the appellant is entitled to recover the advance with interest. He claims Rs. 5,289-10-0. The suits were tried together and the Subordinate Judge decreed the plaintiff's claim in O.S. No. 27 of 1921, holding that the breach was on the part of the defendant in that suit and awarded a decree for about Rs. 7,000 odd as damages after giving credit for the advance which was paid. He dismissed Suit No. 58 of 1921, the suit filed by the present appellant against the respondent, on the ground that the breach of contract being on the part of the plaintiff in that suit, he was not entitled to recover the deposit.