MUHAMMAD HABIB-ULLAH Vs. MUHAMMAD SHAFI

JUDGEMENT

(1.) The parties to this appeal entered into a contract on the 8th of January, 1914. The contract was for a supply of sleepers to the plaintiff appellant, Sheikh Habib- ullah. According to the terms of the contract the defendant respondent, Muhammad Shafi, was to supply the plaintiff with 8,000 sleepers of a particular description. It was agreed that the sleepers should be stocked for delivery at two stations on the Bengal and North-Western Railway, and under the 4th clause of the contract note it was provided that the plaintiff should have the sleepers examined and passed by the end of April, 1914. After the contract note had been drawn up, Habib-ullah advanced the sum of Rs. 5,660 to the defendant by way of earnest money. Under the 8th clause of the contract note, it was agreed that if, within the time fixed for the completion of the contract, the plaintiff have any cause of dissatisfaction with the defendant, the latter was to be liable to refund the earnest money and pay damages. Two suits arising out of the contract embodied in this note were filed by the parties. We are dealing here in appeal with the suit in which Habib-ullah was the plaintiff. According to the case set out in the plaint the defendant was guilty of breach of the contract by failing to deliver sleepers at the places appointed, within the period fixed by the agreement. It was alleged in the fourth paragraph of the plaint that the defendant had failed to supply even a solitary sleeper. For this reason, therefore, Habib-ullah brought a suit to recover Rs. 9,660. Out of this Rs. 5,660 represents the money which he had advanced to the defendant. The balance Rs. 4,000 was claimed by way of damages for breach of the contract.

(2.) The counter-suit which was brought by the defendant Muhammad Shafi was for recovery of the balance of the purchase-money. According to the case set up by him, he had fulfilled the contract into which he had entered and had supplied the goods to Habib-ullah as agreed upon. His case rested upon the allegation that the contract had been completed and the property in goods had passed to Habib- ullah. He gave credit for the amount of the earnest money received, that is to say, Rs. 5, 660, and claimed Rs. 3,539, as the balance of the money, which was owing to him.

(3.) Both suits were tried together, but separate decrees were prepared, and the result of the trial was that the suit brought by Muhammad Shafi against Habib- ullah was dismissed. According to the learned Subordinate Judge s opinion the contract had not been fulfilled, the property in goods had not passed to Habib- ullah and therefore, Muhammad Shafi was not entitled to claim the sum he was asking for as the balance of the price of the goods. An appeal against this decree was taken to the court of the District Judge of Agra and was dismissed. So far, therefore, as the suit which was brought by Muhammad Shafi against Habib-ullah is concerned, it has been disposed of for good and all.