NOORBHAI GULAMHUSSEIN MAKALI Vs. MALLABUX AND CO

JUDGEMENT

(1.) The plaintiff s claim from the defendants Rs. 1453-2-6 under the following circumstances :-It appears that by an Indent dated 27th March 1916 the plaintiff s ordered through the defendants 100 bundles of gold-thread in two lots of 50 bundles each. The goods arrived in Bombay sometime in August 1916. It seems that all the 100 bundles were sent in one lot and the invoice and the draft in respect thereof were for 100 bundles instead of 50. The plaintiffs thereupon refused to pay the full amount of the draft and offered to pay half the amount on delivery of 50 bundles. It is alleged that defendants agreed to this and on 7th September 1916 the plaintiffs paid to the defendants Rs. 1453-2-6 and on the same date the defendants salesman signed an entry in the plaintiffs cash book in respect of this payment. The plaintiffs thereafter called upon the defendants to deliver 50 bundles but the defendants refused to do so alleging that 56 bundles out of the one hundred were missing and that the plaintiffs should pay full amount of the draft and take delivery of 44 bundles. The defendants contend that under the terms of the indent the manufacturers were entitled to ship the goods in one lot. The defendants further state that the plaintiffs being unable to pay the whole amount requested the defendants to pay the balance they were unable to pay and advance the money for the purpose keeping as security 50 bundles which they did. Hence the present suit. The question for determination is whether there was any agreement between the plaintiffs and the defendants as alleged in para 3 of the plaint and whether the amount was not paid by the plaintiffs to the defendants under the terms of the indent and under the circumstances mentioned in para 2 of the written statement. The goods ordered under the indent in suit, Exh. A, arrived in Bombay sometime in August 1916. The invoice relating to these goods was sent by the defendants to the plaintiffs and when the invoice was received by the plaintffs, it appeared that the goods were sent by the manufacturers in one lot instead of two as provided in the indent, Exh. A. The plaintiffs refused to accept the draft which was presented to them by the Bank the day after the invoice was sent on the ground that the shipment was in one lot instead of two. It appears that the plaintiffs spoke to the salesman of the defendants one Gulam Husein Fazal Alli who had secured this indent with reference to this invoice and the draft and at the very first opportunity the plaintiffs made it clear to the defendants that they would not accept the draft as they had understood that under the indent the goods would be shipped in two lots and not in one lot. From the plaintiffs evidence it is clear to my mind that the plaintiffs ordered the goods under the indent, Exh. A, in two lots and it is equally clear that the defendants salesman Gulam Husein led the plaintiffs to understand and believe and understood it himself that the goods would come in two lots. When the plaintiffs told the defendants salesman that they would not accept the draft he told them that he would speak to his master.

(2.) After this the defendants made strenuous efforts to get delivery of the goods in two lots by pointing out to the Bank and the manufacturers in the letters and telegrams that they had made a serious mistake in sending out goods in one lot instead of two as mentioned in the indent. These letters and telegrams according to the evidence of Mr. Wadia were written and sent under the instructions of Mr. Allabux, the sole proprietor of the defendant firm. So I think it is safe to assume that the defendants also understood that under the indent the goods were to be sent in two lots.

(3.) I go further and say that the manufacturers themselves realised their mistake, for what do they do. In reply to the defendants telegrams Bolus & Co. wire to the defendants, Exh. E: "You pay draft and take delivery, we allowing interest ", meaning not the whole of it-but half of it. From this I take it that the manufacturers were willing that one lot should be delivered to the plaintiffs at once and the second lot should be kept by the defendants for a month. In the meantime the defendants should pay the draft and after one month the plaintiffs should pay the other half and take delivery of other 50 bundles. After this according to the plaintiffs the defendants salesman came to their shop and enquired if they would pay for 50 bundles; they said they would and take delivery of 50 bundles from the defendants office, A day or two after this the defendants salesman again came to their shop and told them that his master had agreed to the arrangement, namely, that the plaintiffs should pay for 50 bundles and take delivery of the 50 bundles from the defendants office. The defendants say that the arragement arrived at was that the plaintiffs said that they had gathered a certain sum of money and wanted the defendants to make up the amount of the draft and as security for such advance they would allow 50 bundles to remain with. the defendants. Defendants agreed to this and next day sent the salesman to receive the moneys.