KISHINCHAND CHELLARAM Vs. VISHANDAS AMARNATH

JUDGEMENT

(1.) By a contract dated December 30, 1946. the plaintiffs agreed to sell to the defendants 15 bales of raw silk steam filature yarn E Grade Pounds 20/22 at Rs. 37-8-0 per pound. By the said contract it is provided that "goods shipped per S.S. Monroe will be delivered on safe arrival after clearing from the Customs House." Mr. K.T. <JGN>Desai</JGN> , the learned Counsel appearing for the plaintiffs, has relied on Clauses 3, 7 and 9 of the terms printed at the back of the contract; whereas Mr. Somjee, the learned Counsel for the defendants, has relied on Clauses 21 and 22.

(2.) On February 6, 1947, the plaintiffs delivered the 15 bales to the defendants. The 15 bales did not bear any tickets. On February 7, 1497, the defendants wrote to the plaintiffs that the 15 bales were without any tickets, that they had sold the 15 bales to other parties and that Messrs. Bhojaji Sobhagchand who had purchased 10 bales from the defendants out of the said 15 bales had served the defendants with a telegraphic notice that the bales in question were without tickets and that they therefore refused to take delivery and that the other two parties to whom the defendants had sold the remaining five bales were also refusing to take delivery thereof. The defendants further wrote that in the light of what was stated above, the defendants were compelled to ask the plaintiffs to take back the 15 bales and that the bales were lying with the defendants on the plaintiffs account. By their letter dated February 7, 1947, the plaintiffs replied as follows: We are surprised to note your asking us to take back the bundles on which you allege that the tickets are not affixed. We regret we are in no way responsible now as the goods have been taken over by you and delivered by us as per the terms of the contract, in which there is no stipulation whatsoever that all the bundles should have tickets affixed thereto. Please settle our bill immediately and oblige. These two letters crystallise the dispute which arose between the parties. Thereafter considerable correspondence passed between them. It is not necessary, in my opinion, to refer to that correspondence at length.

(3.) The plaintiffs by their attorneys letter dated February 13, 1947, called upon the defendants to pay the sum of Rs. 74,256-6-0 being the price of the 15 bales. The defendants denied their obligation. On February 21, 1947, the defendants returned 10 bales out of the 15 bales to the plaintiffs. In fact the defendants left the said 10 bales on the pavement adjoining the plaintiffs shop. By their telegram of that date the defendants said that the 10 bales were without tickets and so they were returning them to the plaintiffs shop and that the defendants were sending also the remaining 5 bales. By their attorneys letter dated February 21 1947, (which letter was written before the 10 bales were left at the plaintiffs shop) the plaintiffs called upon the defendants to pay the price in respect of the 15 bales and added: Without prejudice to the above and in order that your clients may not be mulcted in further costs and expenses, we are instructed to suggest that the 15 bales of yarn taken delivery of by your clients from ours should be sent to the auctioneers Messrs. Bennett & Co., who should be asked to sell the same on behalf of the parties concerned. Messrs. Bennett & Co. will take delivery of the said goods on behalf of both our clients and without prejudice to the rights of the parties against each other sell the same and pay over the nett sale proceeds of the goods to our clients. By another letter dated February 21, 1947, (written after the 10 bales were left at the plaintiffs shop) the plaintiffs attorneys wrote as follows: We have advised our clients to keep the goods with them instead of letting them lie on the pavement, but please note that this will be on your clients account and at their risk. Please let us know as early as possible whether your clients are agreeable to the goods being sold through Messrs. Bennett and Company as suggested in our letter to you of date. The plaintiffs attorneys sent a reminder by their letter dated February 25, 1947, and informed the defendants that the 10 bales were being sent to Messrs. Bennett & Co. with instructions to sell off the same in the best way possible, but that the sale would be on the defendants accounts and at their risk. By the said letter the plaintiffs attorneys called upon the defendants to send to Messrs. Bennett & Company the five bales in their possession so that the same may be sold off in the same way as the 10 bales. By their attorneys letter dated February 28, 1947, the plaintiffs wrote that the said 10 bales had been forwarded to Messrs. Bennett & Co. By their attorneys letter dated March 3, 1947, the plaintiffs called upon the defendants to send to the plaintiffs the remaining 5 bales so that all the 15 bales may be sold off together by public auction. By their attorneys letter dated March 3, 1947, the defendants stated that the market had gone down considerably and that it was the plaintiffs duty to have the goods sold out at the time of default and not wait till the market had gone down considerably as it had then. The 10 bales were advertised for sale on March 11, 1947, but subsequently under instructions from the plaintiffs the sale was postponed to March 14, 1947, when the 15 bales were sold by public auction through Messrs. Bennett & Co. on account of the defendants. As a result of the said sale, Rs. 54,001-14-6 were realized as the price in respect of the 15 bales out of which deducting the auctioneers commission at the rate of 1 per cent, amounting to Rs. 540, the net sale proceeds came to Rs. 53,461-14-6. The plaintiffs have brought this suit to recover the sum of Rs. 20,870-3-6. I should mention that out of the sum of Rs. 53,461-14-6, the plaintiffs claim by their plaint to deduct the sum of Rs. 75-12-0 for advertising the sale on March 11, 1947, and it is after deducting this sum that they arrive at the aforesaid figure of Rs. 20,870-3- 6 as the amount due to the plaintiffs.