FIRM BHAWANI SAHAI-SALIG RAM Vs. CHHAJJU MAL

JUDGEMENT

(1.) This is an appeal by the plaintiff, a firm styled Bhawani Sahai-Saling Ram, and is directed against the final decree passed by the First Civil Judge of Saharanpur on 9 November 1932. The suit was for a declaration that the plaintiffs were the owners of four railway receipts specified at the foot of the plaint and for an order directing the defendants to render a complete account in respect of certain purchases of goods made by the defendants on behalf of the plaintiffs, and for such other reliefs as might be necessary in the interest of justice. The allegations in the plaint were that the defendants as commission agents on behalf ofthe plaintiffs purchased large quantities of grain and went to the extent of loading the same in a railway train, but they refused to give the railway receipts to the plaintiffs man who was present at the station. The claim, therefore, was for the declaration that the railway receipts really belonged to the plaintiffs and that the defendants were liable to render accounts. It may be mentioned that by the time the suit was instituted the goods had not been taken delivery of by any person and were still in the custody of the railway. We are not concerned with the various defences taken by the defendants originally inasmuch as they were the subject of controversy at the time of the preliminary decree, and as neither party chose to appeal against the preliminary decree, the matters in controversy there must be deemed to have been set at rest. One point, however, need be mentioned, and it is that the defendants main contention was that the plaintiffs themselves were to blame for the non-delivery of the goods, inasmuch as they did not tender the price of the goods and, therefore, the railway receipts could not be handed over to the plaintiffs man. The consignment was sent by the defendants and was endorsed not in favour of any particular consignee but in favour of the consignors themselves. The defendants alleged that as the plaintiffs did not pay the price of the goods, a telegram was sent to them and the goods were subsequently sold to Messrs. Mulraj Banwari Lal. In the written statement no date is given of the sale of the goods to Mulraj Banwari Lal. The learned Civil Judge on 21 November 1931 passed a preliminary decree by which he declared the rights of the parties and by which he appointed Babu Bimal Prasad an advocate of the Court, a commissioner for the purpose of going through the accounts. The commissioner submitted his report, and objections were taken by the plaintiffs as well as by the defendants. In the result a final decree was passed by which the plaintiffs claim was dismissed with costs and a decree was passed in favour of defendants 1 to 4 in the sum of Rs. 1,019-8-9.

(2.) Several pleas have been taken in appeal before us and the very first plea argued on behalf of the appellants was that the defendants had made no claim in their written statement for any specified sum and, therefore, they were not entitled to get any decree. As we mentioned before, the goods could not be delivered to any person on account of certain disputes that arose between the parties as regards a particular term of the contract of sale, the plaintiffs alleging that they had deposited a large amount of margin money in the shop of the defendants and, as such, they were entitled to get the goods without payment of any price, such price being considered at the time of final settlement of accounts, and the defendants alleging that a very small sum was deposited with the defendants not enough to cover the price of the goods supplied by the defendants to the plaintiffs and, therefore, it was necessary for the plaintiffs to pay as soon as the goods were loaded in the train. By reason of the fact that the goods had to remain in the custody of the railway, the railway charged demurrage and the sum of Rs. 1,019-8-9 is made up of this demurrage, inasmuch as the amount paid to the railway was Rs. 1,392, and as under the final decree the plaintiffs were held entitled to Rs. 372,7-3, the decree in favour of the defendants was to the extent of the demurrage paid by the defendants after giving credit for Rs. 372-7-3 due to the plaintiffs. The question, therefore, that we have got to decide is whether the defendants are entitled to this demurrage or whether by reason of their own conduct they have precluded themselves from claiming the sum and whether under the law decree in a suit like this could be passed in favour of the defendants.

(3.) Taking the first aspect of the question in the beginning, it appears that the goods were loaded on 20th, 22nd and 23 May 1931 at Laksar railway station and the plaintiffs man, Dwarka Das, was present at the station. He says he had a dispute with Chhajju Mal at Laksar railway station, because he asked Chhajju Mai for the railway receipt and the latter did not give the railway receipt, and in connection with that dispute Dwarka Das got Chhajju Mal arrested. The goods, however, went to Hapur, which was the place of destination, and at Hapur they remained at the railway station. A telegram was sent to the plaintiffs on 23 May 1931 for remitting the price, but this telegram was not heeded. The dispute between the plaintiffs and the defendants culminated in reports to the police and in the filing of criminal complaints. The bahis of the defendants shop were taken by the police in their custody in the 25 May 1931, and on the 1 June 1931 the present suit was instituted. It is, therefore, clear that nobody could take delivery of the goods, and the question of ownership regarding the goods, was not at all a clear one. It is true that the defendants alleged in their written statement that as the plaintiffs did not send any reply to the telegram of the 23 May 1931, the goods, covered by the railway receipts, were sold to Mulraj, Banwari Lal, but it is not stated as to when the goods were sold, and Madho Ram, the munib of Mulraj Banwari Lal, in his evidence before Court also does not state as to when the goods were sold.