Judgment

GAJENDRAGADKAR, J. : This appeal by a certificate granted by the Calcutta High Court arises out of a suit filed by the three appellants against the respondent to recover Rs. 83,640/-. The three appellants are respectively the Firm Radhakishan Shivdutt Rai which carries on business at Banaras and Ramkumar Lal for himself and as karta of his joint family as well as Madan Gopal for himself and as karta of his joint family, the latter two being the partners in the first-mentioned Firm Radhakishan Shivdutt Rai; for convenience we will refer to the partnership firm hereafter as the appellant. The respondent Tayabali Dawoodbhai is a partnership firm which carries on business at Calcutta. The appellant s case was that the appellant and the respondent had entered into a contract in the first instance on December 18, 1950 through brokers named T. N. Mehrotra & Co., Calcutta. This contract was later confirmed by two letters written respectively on January 3 and 15, 1951 by the appellant to the respondent and replied to by the respondent. By this contract the respondent agreed to sell 1000 bales of Banaras Hemp particulars of which were set out in the plaint. According to the appellant, by letter written on March 14, 1951, the appellant in part performance of the said contract accepted delivery of 110 bales of Banaras Hemp No. 1 and 50 bales of Banaras Hemp No. 2; this delivery was made by the respondent to L. N. Poddar and Co., who acted as the agent of the appellant and paid the price of the said 160 bales. In this transaction the respondent realised Rs. 3,840 from the said L. N. Poddar, and Co., in excess of the actual price of the goods delivered to the said company. In spite of the repeated demands made by the appellant the respondent failed to deliver the balance of the goods contracted for and thus committed breach of the contract. That is how the appellant claimed Rs. 79,800 as difference between the market rate on March 31, 1951 and the contract rate of the balance deliverable under the contract in suit. This amount was claimed as damages for the breach of contract. In addition an amount of Rs. 3,840 was claimed as having been paid in excess of the value of 160 bales delivered to L. N. Poddar and Co. on behalf of the appellant.

2. This claim was resisted by the respondent on several grounds. The principal contention urged by the respondent, however, was that in relation to the contract in suit the appellant had acted as agent for its disclosed principal Messrs. Khaitan and Sons Ltd., and as such it was not entitled to bring the present suit. The respondent further alleged that the said disclosed principal Messrs. Khaitan & Sons had settled all their rights and claims under the suit contract with their agent and so the present claim for damages was not maintainable. In regard to the claim for Rs. 3,840 the respondent pleaded that the appellant s case was untrue. Several other pleas were also raised but with the said pleas we are not concerned in the present appeal.

3. Mr. Justice Bose who tried the suit framed twelve issues. On the principal point in controversy between the parties the learned judge found that the appellant had entered into the contract with the respondent on its own account and not on account of the disclosed principal as alleged by the respondent. According to the learned judge the reference to Messrs. Khaitan and Sons Ltd., made in the bought and sold notes on which the respondents plea was based had been inserted by the brokers by mistake or due to some misconception". The learned judge also found that the respondent had committed a breach of the contract as alleged by the appellant. The appellant s case with regard to the excess payment of Rs. 3,840 made by L. N. Poddar & Co. was, however, held not to have been proved. In the result a decree was passed in favour of the appellant for Rs. 79,800 along with interest as stipulated in the decree.

4. Against this decree the respondent preferred an appeal; a