Haji Mohammed Ishaq Wd. S. K. Mohammed vs Mohamad Iqbal And Mohamed Ali And Company

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1978 Supreme(SC) 128

SUPREME COURT OF INDIA
R.S. SARKARIA, N.L. UNTWALIA AND P.S. KAILASAM, JJ.
Haji Mohammed Ishaq Wd. S. K. Mohammed and others, Appellants
Versus
Mohamed Iqbal and Mohamed Ali and Co., Respondent.
Civil Appeal No. 2468 of 1968
Decided on 4-4-1978.
Advocates appeared
Mr. Y. S. Chitale. Sr. Advocate (M/s. Haji Sheikh, A. H. Safi, K. J. John and D. N. Mishra, Advocates with him), for Appellants; Mr. R. B. Datar and Miss Farhat Qadri, Advocates, for Respondent.
BY ADMISSION OF ADDITIONAL EVIDENCE IN APPEAL—IF PARTY APPLIES TO ADDUCE FRESH EVIDENCE

Advocates:
A.H.SAFI, D.N.Mishra, Farhat Qadri, Haji Sheikh, K.J.JOHN, R.B.DATAR, Y.S.Chitale

Headnote:
Civil Procedure Code – Rule 27 – Order 41 - Adduce further evidence – Dishonored of cheques – Claim of compensation - Cheques numbering 14 in all were drawn in the name of and were handed over to him. Payment on account of the slack season was stopped in regard to the cheques amounting plaintiffs allegation that one of its partners had come to and handed over certain Railway Receipts and was denied. A vague statement in para. 3 of the written statement was "The amount in respect of the said has been paid to No details as to the dates, manner or amounts of payments of the balance of the amount to were mentioned in the written statement – Held, We found absolutely no substance in the argument of the appellants to assail the finding of the High Court that the plaintiff had supplied the goods on its own account to the defendants and that plaintiffs partner Babalal had handed over the Patti No. 12 (Bijak) Ext. 85 to the defendants at their place of business at Katni along with the two Railway receipts. The High Court has further found that the subsequent Railway Receipts were sent by registered post by the plaintiff and in several letters and telegrams the plaintiff demanded the payment of the price of the goods supplied from the defendants. Nowhere Rahim was justifiably in the picture. The High Court has further pointed out the reason as to why about 501 bags of tobacco were supplied from the warehouse of Manavi who became the consignor in the several Railway Receipts. Manavi supplied the goods on plaintiffs account. It has further been found that the cheques drawn by the defendants in the name of Rahim were all endorsed by him in favour of the plaintiff and ultimately to the knowledge of the defendants the payment of the part of the price was by the defendants to the plaintiff. No goods were supplied on account of Rahim. No part payment was really and actually made to him and the defendants were liable to pay the balance of price to the plaintiff - On the facts found, there is no difficulty in assuming or even inferring that initially the express contract for supply of the goods was between the defendants and Rahim. The fact whether Rahim acted as the plaintiffs agent or the defendants is immaterial. What is clear is that the orders placed with Rahim were in fact executed by the plaintiff by supply of goods to the defendants. It was so done on account of the plaintiffs from its own warehouse as well as from Manavis warehouse. Defendants by their clear conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the plaintiff demanding the money from them on the assertion that the goods were despatched by the plaintiff and the defendants should pay the money, clearly showed that a direct contract which in law is called an implied contract by conduct was brought about between them. Whatever may be the rural relationship between the plaintiff and Rahim, Rahim and the defendants and in whatever manner he acted as a go-between-man, between the plaintiff and defendants - Appeal dismissed Appeal dismissed

JUDGMENT

N. L. UNTWALIA, J.:— This is a defendants appeal by certificate. It arises out of a suit filed by the plaintiff-respondent in the Court of the Civil Judge, Belgaum in the State of Karnataka for recovery of Rs. 90,000/- the balance of the price of 630 bags of tobacco supplied by it to the defendants. The suit was decreed by the trial Court and finally the decree has been affirmed by the Karnataka High Court.

2. The plaintiff is a Registered Partnership firm carrying on business at Nipani, District Belgaum. Defendant No. 1 is the father of defendants 2 to 4. They also carry on a partnership business under the same and style of Haji Mohammed Isaq Mohammed Gulam Saheb. They manufacture Bidi in their factory known as the Modrn Bidi factory and have their Head Office in Katni in the State of Madhya Pradesh. The case of the plaintiff in the plaint was a simple one. It despatched by Railway 630 bags of tobacco between the 11th and 21st January, 1952 from Nipani to Katni,. The consignor in all the Railway Receipts except one was on Shri G. K. Manavi and in one Railway Receipt of 129 bags the consignor was the plaintiff firm. The consignees were self. The Railway Receipts were endorsed to the defendants firm by the consignors. Shri Babalal, one of the partners of the plaintiff firm, went personally to Katni, with the Bijak No. 12 dated 12-1-1952 and handed over two Railway Receipts and the Bijak for the total amount of Rs. 1,21,154-12-9 to the defendants. The other Railway Receipts were sent by the plaintiff to the defendants by Registered post. The goods were accepted by the defendants. On demands being made from them from time to time for payment of the price, the defendants paid Rs. 20,000/- by four cheques of Rs. 5,000/- each. Later they gave ten more cheques of Rs. 49,000/- out of which, five cheques of the amount of Rs. 25,000/- were honoured but the rest of the cheques for Rs. 24,000/- were dishonoured. Small sums were paid by the defendants in cash. The balance of the price which remained due from them was Rs. 75, 477-12-9. Adding interest to the said amount, the total amount came to Rs. 90,102-12-9. The claim in the suit was for the round figure of Rs. 90,000/- remitting Rs. 102-12-9. In para. 5 of the plaint, however, it was mentioned:

"The Defendants are old customers of one Shri Abdul Rahim Nabisaheb Bagwan.

He prevailed upon the plaintiff to supply the tobacco to the Defendants and also said that he would see that the Defendants duly paid for the same. To some extent he has helped the plaintiff in the recovery of their dues from Defendants."

3. In the main, the pleas set up by the defendants in their written statement were that there was no privity of contract between them and the plaintiff; they had placed orders for the supply of 630 bags of tobacco with Shri Abdul Rahim Nabisaheb Bagwan and he had handed over a Bijak, and not the plaintiff for the amount of Rs. 1,21,154-12-9. The cheques numbering 14 in all were drawn in the name of Rahim and were handed over to him. Payment on account of the slack season was stopped in regard to the cheques amounting to Rs. 24,000/-. The plaintiffs allegation that Babalal, one of its partners had come to Katni and handed over certain Railway Receipts and the Bijak, was denied. A vague statement in para. 3 of the written statement was "The amount in respect of the said Bijak has been paid to Abdul Rahim Nabisaheb Bagwan." No details as to the dates, manner or amounts of payments of the balance of the amount to Ramin were mentioned in the written statement.

4. The trial Court decreed the suit on its finding that the goods were sold to the defendants by the plaintiff through Rahim who acted as the defendants agent and thus there was a privity of contract established between the plaintiff and the defendants. The judgment of the trial Court was delivered on the 31st of October, 1965. The defendants took up the matter in appeal to the High Court. After about three years, they filed appli

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