Dhanraj and Another vs Firm Sanehi Ram-Panna Lal

Dawson Miller, C.J.—The plaintiffs who carry on business at Patna as commission agents purchased in 1916 certain goods for the defendants who carry on business at Srimangal. In due course the plaintiffs rendered an account for the unpaid, balance of their charges amounting together with interest to Rs. 839-9-9. The defendants challenged the propriety of one item in the account amounting to Rs. 383-2-6 being Rs. 867-8-9, the purchase price of chillies paid for the defendants after crediting them with Rs. 484-6-3 the proceeds of the sale of the same. The chillies were purchased in May 1916 for the defendants'' account but as the defendants apparently did not want immediate delivery the goods remained in the plaintiffs'' godown until November. On November 26th the plaintiffs wrote to the defendants asking for instructions as to the despatch of the chillies saying "I wrote to you to have the same despatched but you do not write to me about the despatch. Please write immediately on the receipt of this letter. Otherwise I would despatch them to Srimangal. You should at once send Hundi and things without delay." On the 30th November, in reply, the defendants, who up to that time had not received the account for the goods, wrote a letter the material part of which was as follows:--"On the day I returned back I wrote you to get the account adjusted. I will send all the dues on hearing from yon. What you write now is not acceptable to me. O! brother no fall in the market is yet in sight within five or seven days. It is not proper to bring one under clutches in this way. You ought not to have written such a letter to me and expressed your mind, I am ready to give you damages nor do I propose to cause loss to you. You did not get anything from a certain person and you could not do anything. I am ready to pay you damages and still you are hostile to me. If I would have got the chillies here I would not have suffered loss. Considering this you will get the account adjusted." There can be no doubt that at that time the market value of chillies at all events in Patna had fallen below the prices current at the date of the purchase. The plaintiffs did not reply to this letter and it may be observed that in the letter of the 26th November which they had written they had stated that if they did not receive an immediate reply to their letter they would despatch the chillies to Srimangal. About a fortnight after the defendants'' letter was received the plaintiffs without giving any intimation sold the chillies for a sum of Rs. 584-6-3 and they claim that they are entitled to the difference between the sum so realised and the purchase price. The plaintiffs were the defendants'' agents and clearly to my mind had no authority to sell without instructions. They would have been entitled to despatch the goods or if the defendants failed to take delivery they would have been within their rights in selling the goods after giving notice that they would do so if delivery was refused but no such notice was given. Whether one regards them as sellers or whether one regards them as agents it seems to me that the plaintiffs had no authority to sell the goods without instructions from the defendants or without giving notice that unless the defendants took delivery they would sell the goods for what they would fetch. If they are to be regarded as sellers then clearly they are governed by Section 107 of the Indian Contract Act which provides that "Where the buyer of goods fails to perform his part of the contract, either by not taking the goods sold to him, or by not paying for them, the seller, having a lien on the goods, or having stopped them in transit, may, after giving notice to the buyer of his intention to do so, resell them, after the lapse of a reasonable time, and the buyer must bear any loss, but is not entitled to any profit which may occur on such resale."

It is quite dear I think from the facts of this case that the defendants did not refuse to take delivery of the goods. All that they were asking was that delivery should be held over a little longer, and there is in thing at all in the evidence which has been suggested to us to point to the fact that they ever actually refused to take delivery of the goods.

If, on the other hand, the plaintiffs are to be regarded as agents it seems to me that their business was to hold the goods at the disposal of their principals and unless they had express authority to sell them they were not entitled to sell them without; either requesting payment or asking the defendants to take delivery and giving notice that in the event of their failure to do so they would sell the goods for their account. On the 1st January, the defendants telegraphed to the plaintiffs to deliver the chillies to them at Srimangal but by that time they had already been sold by the plaintiffs as stated. The plaintiffs contended that the letter of the) 30th November was an authority to them to sell and that they were justified in the circumstances in so doing. It is not suggested that any other authority beyond the letter in question was given to them.

The trial Court considered that the letter did not give any authority to the plaintiffs to sell the chillies and disallowed this part of the plaintiffs'' claim giving them a decree with costs for the balance.

The Subordinate Judge on appeal took a different view. He considered that the defendants having intimated that they were prepared to be debited with any loss justified the plaintiffs in disposing of the goods?

On second appeal by the defendants to this Court the case came before a single Judge who considered that he was not entitled to question the finding of fact of the lower appellate Court or to consider whether the document relied upon by the Subordinate Judge was properly interpreted by him. He accordingly dismissed the appeal.

From that decision the present appeal has been preferred by the defendants under the Letters Patent. Although the findings of fact of the first appellate Court are not open to question in second appeal it is always open to the second appellate Court to consider whether there is in fact any evidence to support the findings. In the present case the only evidence adduced in support of the findings is the letter of the 30th November. That letter as well as the, plaintiffs'' letter of the 26th November, to which it is a reply, have been placed before us and it is contended that they afford no evidence to support the findings of the Subordinate Judge. The learned Judge of this Court in second appeal declined to consider the case from this point of view. With great respect, 1 thin he ought to have done so and determined for himself, not whether the lower appellate Court''s view of the evidence was right or wrong but, whether there was any evidence which supported his finding. We have considered the letter of the 30th, November which is the only evidence pub forward in support of that finding and indeed the only evidence upon which the finding was based and it seems to me that it is impossible to read into it any authority be the plaintiffs 60 sell the chillies. I have already set oat the material parts of the letter and it is not necessary to refer to it again but I think it is quite impossible to find throughout that letter anything which could possibly be interpreted as an authority to the plaintiffs to sell. It appears to be the letter of a person who was appealing rather to the generosity of the plaintiffs not to enforce their rights of despatching the goods immediately but to wait, and possibly to a wait a little longer for payment and the mere fact that they say that they are quite willing to bear the loss or suffer any damage that may arise cannot mean more than that the loss was theirs and does not really concern the plaintiffs. In these circumstances it seems to me that there was no authority given in that letter at all to sell and therefore that being the case, there was no evidence at all in this case which would support the findings of the learned Subordinate Judge.

It was contended that Section 53 of the Contract Act was applicable to this case, and that under that Section the plaintiffs had in fact been prevented from performing their part of the agreement and that they were therefore entitled to avoid the contract and to sue the defendants for any damages which they might suffer. From first to Last throughout this case there is nothing to show that the plaintiffs ever purported to rescind the contract. Their duty was to hold the goods for the disposal of the defendants and if they intended not to hold them any longer then obviously to my mind their plain duty was to intimate to the defendants that unless they took immediate delivery they would dispose of the goods by sale and recoup themselves for their loss. Had they done so dearly they would have been entitled to ask the defendants to pay the balance between the price fetched and the price paid for the goods originally, but not having done so it seems to ma they acted without authority and they cannot in the circumstances, having failed to deliver the goods, ask the defendants to pay the costs. In my opinion this appeal should be allowed, the decision of this Court and of the Subordinate Judge should be set aside and the decision of the trial Court restored. The defendants are entitled to their costs throughout except the costs in the trial Court which will be paid by them as directed by the Munsif.

Mullick, J.

I agree.