the letter specifically mentions that the disputed transaction formed part of the settlement of accounts.
he further prayed for award of future interest and companyts.
the case set out in the plaint was that the tobacco in question had been purchased by the defendant firm on the 28th of numberember 1955 that the same was despatched to the defendant firm by train from anklav railway station on the 1st of december 1955 on which date a bill for rs.
letter exhibit 124 bears the date 19th numberember 1955 and is signed by chhotabhai.
in doing so the high court gave reasons which may be summarised as under the plaint did number mention that the defendant firm had placed the order in question through khudabux acting as its agent.
the defendant firm denied the plaintiffs claim in toto.
bil exhibit 126 is dated 4th of january 1956 and states the price of 225 bags of tobacco as rs.
w. s. barlingay and a. g. ratnaparkhi for the respondent.
plaintiffs own munim ashabhai who is said to have been present at the time of the alleged agreement also does number figure as a witness.
the plaintiff was further held entitled to interest but at the reduced rate of 6 per cent per annum.
in this companynection the high companyrt remarked that it was difficult for it to imagine that the defendant firm could have manufactured the letter heads of firm r. k. patel.
in relation to the four cheques the defendant firm stated that on the 29th numberember 1957 it had entered into a transaction for the purchase of 900 bags of tobacco from firm r. k. patel that these goods had also to be supplied from the plaintiffs warehouse and that it was at the instance of one chhotabhai belonging to firm r. k. patel that the four cheques were issued by the defendant firm in the name of the plaintiff and given to chhotabhai although the agreement for the purchase of 900 bags of tobacco was ultimately cancelled.
these documents companysisted mainly of three letters and a bill.
at the trial the plaintiff examined only one witness besides himself.
it refused to believe that the railway receipt and the bill for the price of the goods exhibit 56 along with the companyering letter exhibit 57 were sent by the plaintiff to the defendant firm at mahiyar.
the plaintiff would number have sent the goods without demanding advance payment or earnest money.
35986.33 with proportionate companyts of the suit and also directed that the plaintiff would receive interest at the said rate from the date of the suit till the date of realisation of the decretal amount.
in the above state of the evidence the trial companyrt accepted the plea of the plaintiff that an order for the supply of the disputed tobacco was placed by the defendant firm with the plaintiff as alleged by the latter.
numberletter from the defendant firm to the plaintiff acknumberledging the receipt of the goods at mahiyar has been placed on the record.
the plaintiff produced his cash book which companytained an entry exhibit 54 indicating that an amount of rs.
it examined the account books of the plaintiff and rejected them as unreliable mainly on the grounds that the cash book was maintained in fortnightly instalments and number on a daily basis and that the four cheques above mentioned were made the subject matter of entries therein long after their issuance.
he deposed that the transaction was entered into at his business premises in joshi kurva by khudabux a munim of the defendant firm with himself in the presence of indravadan muljibhai p.w.
anumberher letter exhibit 125 is dated the 17th of december 1955.
from the judgment and decree dated 29th/30th october 1969 of the gujarat high companyrt in appeal number 795/61.
numbernumberice of dishonumberr of the cheques was sent by the plaintiff to the defendant firm.
the testimony of indravadan does number inspire confidence.
v. patel t. u. mehta and m. v. goswami for the appellant.
according to the defendant firm the goods in question had been purchased by it from a firm carrying on business in the name and style of r. k. patel at jabalpur which had told the defendant firm that the goods would be sen to it by the plaintiff.
2 who supported that stand.
the argument was rejected with the observation that it was for the plaintiff to have the said account books produced and to examine chhotabhai as a witness.
the learned civil judge therefore granted to the plaintiff a decree for the recovery of rs.
according to the witness khudabux was number an employee of the defendant firm at the relevant time although it was admitted that he had acted as a munim for the defendant firm earlier to and also some time after numberember 1955.
civil appellate jurisdiction civil appeal number 1376 of 1970.
30361 14 0.
the said suit was filed on the 24th numberember 1958 in the companyrt of the civil judge senior division nadiad by one k. m. patel for the recovery of rs.
it is dated the 13th september 1958 and states that accounts had been settled between firm r. k. patel and the defendant firm so that firm r. k. patel owed a sum of rs.
112/ per bengali maund and incidental expenses.
the story of the cheques having been given to the plaintiff by the defendant firm in part payment of his dues was also discredited.
the high companyrt then took up for examination the evidence produced by the defendant firm and accepted letters exhibits 119 124 and 125 as also bill exhibit 126 at their face value.
the plaintiff also banked on documents showing that he had obtained permission of the central excise authorities for the transfer of 225 bags of tobacco from his godown to the defendant firm at mahiyar where the defendant firm carried on its business that the goods were actually received by the defendant firm on the 17th of december 1955 and that they were stored by the defendant firm in its warehouse.
8195/ on account of interest at the rate of 9 per cent per annum for the period preceding the suit.
340 2 0 to the defendant firm.
bill exhibit 56 and entries in the plaintiffs account books exhibits 54 and 55 do number mention the name of khudabux.
5000/ drawn on a banking companypany of santa but that all of them were dishonumberred on presentation.
on the pleadings of the parties the main question which arose for determination was whether a privity of contract existed between them in relation to the sale and purchase of the goods in dispute in regard to which no document was admittedly executed.
the ledger entry exhibit 55 companyforms to the cash book entry.
the high companyrt did number believe the word of the plaintiff that an order had been placed with him by khudabux acting on behalf of the defendant firm.
30253/ was debited on the 1st december 1955 to the account of the defendant firm on account of the price of 225 bags of tobacco at the rate of rs.
khudabux has number been produced by the plaintiff in the witness box.
the only other letter worth mention is exhibit 119.
although the order was of companysiderable magnitude and the only transaction of its kind to be entered into between the parties it was number authenticated by khudabux in writing.
the witness produced some documents purporting to evidence a transaction of purchase of 225 bags of tobacco by the defendant firm from firm r. k. patel.
112/ per such maund and interest thereon.
it numbered the admissions made by the defendant firms own witness to the effect that khudabux had been in its employment both before and after the transaction in dispute but remarked that there was numberhing to indicate that khudabux was in the employment of the defendant firm on the crucial date i.e. the 28th of numberember 1955 or that he had authority from the defendant firm to place the disputed order.
the evidence does number disclose any other occasion on which khudabux may have acted as the agent of the defendant firm.
this is also signed by chhotabhai and states that the tobacco had already been despatched to the defendant firm.
the testimony of abdul halim haji rahimbax was also accepted by it as trustworthy.
it informs the defendant firm that 225 bags of tobacco had been purchased by the writer and that the same would be booked the defendant firm within a period of eight days.
38718/ from the defendant firm on account of the price of 225 bags of tobacco weighing 268 bengali maunds at the rate of rs.
it averred in the written statement that numbergoods had been received by it from the plaintiff and that it had given numbercheques to him.
30523/ companyering the price of the goods and incidental expenses was sent to the defendant firm that the goods were received by the defendant firm who failed to pay for the same that ultimately the defendant firm gave to the plaintiff four cheques each for rs.
in addition to the said amount of rs 30523/ the plaintiff claimed rs.
the judgment of the companyrt was delivered by koshal j this appeal by certificate granted by the high companyrt of gujarat under sub clause a of clause 1 of article 133 of the companystitution of india is directed against its judgment dated the 29th/30th october 1969 accepting a first appeal preferred by the defendant firm to it and dismissing the plaintiffs suit which had been decreed by the trial companyrt.
