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Noorbhai GulamhusseIn Makali Vs. M. Allabux and Co. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1200 of 1916
Judge
Reported inAIR1917Bom246; (1917)19BOMLR845; 42Ind.Cas.820
AppellantNoorbhai GulamhusseIn Makali
RespondentM. Allabux and Co.
Excerpt:
.....accept the whole lot and pay for the same-contract containing printed as well us written terms-if printed terms are inconsistent with the written, the latter should prevail.;wherein contract there are written as well as printed terms and the written terms are inconsistent with the printed ones, then the written terms will prevail.;western assurance company of toronto v. poole (1903) 1 k. b. 376 and dudgeon v. pembroke (1877) 2 app. cas. 284, followed.;the plaintiff by an indent ordered out gold-thread in two lots of 60 bundles each, through the defendants. the manufacturers sent the goldthread in one lot of 100 bundles instead of in two lots as provided in the indent, and forwarded the invoice and the draft in respect thereof for the whole lot of 100 bundles. the plaintiff paid rs...........indent. the indent is in ordinary form used by all the commission agents in bombay. it has certain printed terms and certain written terms. in the written term it is said shipment in two lots. in clause 4 of the printed terms of the indent it is inter alia provided that-your principals may execute the whole or part of this order in one or more of the shipments as circumstances may permit.5. it is true that this printed term is not cancelled or struck out. it, is contended by the plaintiffs' oounsel that in a contract which contains written and printed clauses or terms and when the written term is inconsistent with the printed term the written term should prevail and i think this contention is sound for you find that walton j. in cunard steamship company v. marten [1902] 2 k. b. 624.....
Judgment:

Kajiji, J.

1. The plaintiff's claim from the defendants Rs. 1453-2-6 under the following circumstances :-It appears that by an Indent dated 27th March 1916 the plaintiff's ordered through the defendants 100 bundles of gold-thread in two lots of 50 bundles each. The goods arrived in Bombay sometime in August 1916. It seems that all the 100 bundles were sent in one lot and the invoice and the draft in respect thereof were for 100 bundles instead of 50. The plaintiffs thereupon refused to pay the full amount of the draft and offered to pay half the amount on delivery of 50 bundles. It is alleged that defendants agreed to this and on 7th September 1916 the plaintiffs paid to the defendants Rs. 1453-2-6 and on the same date the defendants' salesman signed an entry in the plaintiffs' cash book in respect of this payment. The plaintiffs thereafter called upon the defendants to deliver 50 bundles but the defendants refused to do so alleging that 56 bundles out of the one hundred were missing and that the plaintiffs should pay full amount of the draft and take delivery of 44 bundles. The defendants contend that under the terms of the indent the manufacturers were entitled to ship the goods in one lot. The defendants further state that the plaintiffs being unable to pay the whole amount requested the defendants to pay the balance they were unable to pay and advance the money for the purpose keeping as security 50 bundles which they did. Hence the present suit. The question for determination is whether there was any agreement between the plaintiffs and the defendants as alleged in para 3 of the plaint and whether the amount was not paid by the plaintiffs to the defendants under the terms of the indent and under the circumstances mentioned in para 2 of the written statement. The goods ordered under the indent in suit, Exh. A, arrived in Bombay sometime in August 1916. The invoice relating to these goods was sent by the defendants to the plaintiffs and when the invoice was received by the plaintffs, it appeared that the goods were sent by the manufacturers in one lot instead of two as provided in the indent, Exh. A. The plaintiffs refused to accept the draft which was presented to them by the Bank the day after the invoice was sent on the ground that the shipment was in one lot instead of two. It appears that the plaintiffs spoke to the salesman of the defendants one Gulam Husein Fazal Alli who had secured this indent with reference to this invoice and the draft and at the very first opportunity the plaintiffs made it clear to the defendants that they would not accept the draft as they had understood that under the indent the goods would be shipped in two lots and not in one lot. From the plaintiffs' evidence it is clear to my mind that the plaintiffs ordered the goods under the indent, Exh. A, in two lots and it is equally clear that the defendants' salesman Gulam Husein led the plaintiffs to understand and believe and understood it himself that the goods would come in two lots. When the plaintiffs told the defendants' salesman that they would not accept the draft he told them that he would speak to his master.

2. After this the defendants made strenuous efforts to get delivery of the goods in two lots by pointing out to the Bank and the manufacturers in the letters and telegrams that they had made a serious mistake in sending out goods in one lot instead of two as mentioned in the indent. These letters and telegrams according to the evidence of Mr. Wadia were written and sent under the instructions of Mr. Allabux, the sole proprietor of the defendant firm. So I think it is safe to assume that the defendants also understood that under the indent the goods were to be sent in two lots.

3. I go further and say that the manufacturers themselves realised their mistake, for what do they do. In reply to the defendants' telegrams Bolus & Co. wire to the defendants, Exh. E: 'You pay draft and take delivery, we allowing interest ', meaning not the whole of it-but half of it. From this I take it that the manufacturers were willing that one lot should be delivered to the plaintiffs at once and the second lot should be kept by the defendants for a month. In the meantime the defendants should pay the draft and after one month the plaintiffs should pay the other half and take delivery of other 50 bundles. After this according to the plaintiffs the defendants' salesman came to their shop and enquired if they would pay for 50 bundles; they said they would and take delivery of 50 bundles from the defendants' office, A day or two after this the defendants' salesman again came to their shop and told them that his master had agreed to the arrangement, namely, that the plaintiffs should pay for 50 bundles and take delivery of the 50 bundles from the defendants' office. The defendants say that the arragement arrived at was that the plaintiffs said that they had gathered a certain sum of money and wanted the defendants to make up the amount of the draft and as security for such advance they would allow 50 bundles to remain with. the defendants. Defendants agreed to this and next day sent the salesman to receive the moneys.

4. Both the plaintiffs deny this and it must be remembered that the defendants alleged that the entry Exh. H in the plaintiffs' book was not genuine but Fazalally himself has admitted that he signed the entry on the day it purports to have been signed and I find the entry to be made in regular course of business and it is a perfectly genuine entry. So I have no hesitation in accepting the plaintiffs' version of the arrangement arrived at and rejecting that of the defendants. I was very well impressed with the manner in which the plaintiffs gave their evidence. They appeared to me to be truthful witnesses whilst the defendant Mahomedally Alahabux is, I have no hesitation in saying, not only dishonest but absolutely a false witness. He has sworn that he knew what he wrote in the letters to the Bank and the letters and telegrams to Bolus & Co. was false at the time he wrote them. A man like this would go any Jength to serve his purpose. I have no doubt that the arrangement which the plaintiffs depose to was the arrangement, for if the defendants had produced their books I feel sure that there would be an entry debiting Bolus & Co. with the amount. But Mr. Vakil for the defendants having contended that under the terms of the indent the manufacturers were entitled to send the goods in one shipment instead of two, it is necessary to consider the terms of the indent. The indent is in ordinary form used by all the Commission Agents in Bombay. It has certain printed terms and certain written terms. In the written term it is said shipment in two lots. In Clause 4 of the printed terms of the indent it is inter alia provided that-

Your principals may execute the whole or part of this order in one or more of the shipments as circumstances may permit.

5. It is true that this printed term is not cancelled or struck out. It, is contended by the plaintiffs' oounsel that in a contract which contains written and printed clauses or terms and when the written term is inconsistent with the printed term the written term should prevail and I think this contention is sound for you find that Walton J. in Cunard Steamship Company v. Marten [1902] 2 K. B. 624 says:-

It is most unusual to find that the superfluous or inapplicable words have been struck out of the printed form.

6. And in Western Assurance Company of Tofonto v. Poole [1903] 1 K. B. 376 Bigham J. says :- ' If the printed clause and written clause are inconsistent then the latter must prevail.' Similarly House of Lords in Dudgeon v. Pembroke (1877) 2 App. Cas. 284 say:-

But the practice of mercantile men of writing into their printed forma tha particular terms by which they desire to describe and limit the risk intended to-be insured against, without striking out the printed words which may be applicable to a larger or different contract, is too well known and has been too constantly recognized in Courts....

7. It is therefore necessary to consider whether the printed words were intended to stand part of the contract or were by carelessness omitted to be deleted. If the latter contract should be read without the printed words, I have no doubt that the parties intended that the printed words should be struck out and they were omitted by carelessness only. Mr. Vakil relied on Jessel v. Bath (1867) L.R. 2 Ex. 267 but in this case printed and written terms were not inconsistent and therefore it is clearly distinguish-able from the above cases and in Gumm v. Tyrie (1864) 33 L. J. Q. B. 97 it has been decided that special provisions in writing override general printed statements which are inconsistent with them, therefore I hold that the written term being inconsistent with, the printed the written term prevails and therefore under the terms of the indent Exh. A goods were to be shipped in two lota and not in one and therefore the plaintiffs were justified in refusing to accept them. In this particular case the order was for a. small amount but suppose that was a large order for goods worth a lac or more to be shipped in three or four lots and if the manufacturers were to be entitled to send in one lot it. would be impossible for the merchant to take them all together.

8. It seems to me that the question whether the plaintiffs were on the day the draft was presented in a position to honour it or not has nothing to do with the merits of the case. Even if they had no money on that day it is not suggested that they could not have made arrangements to get the same and honour the draft. In my opinion the terms of the indent were that there should be two shipments and therefore the plaintiffs were not bound to accept the draft. Next there is to my mind nothing unreasonable in the agreement set out in para 3 of the plaint and deposed to by the plaintiffs but is one which under the circumstances one would expect. The plaintiffs say we are willing to pay half the amount on delivery of 50 bundles and as I have said before the defendants get a wire from Bolus & Co. that they should pay. The story set out by the defendants of the advance and keeping 50 bundles as security is to my mind an after-thought. It only occurred to the defendants when the case was found not to contain one hundred bundles.

9. If the case had contained 100 bundles the defendants would have kept 50 and given delivery of the other 50 to the plaintiffs. The defendants tried to make out that they paid the difference between the entire amount due on the draft and the sum paid by the defendants as a loan to the plaintiffs. This only depends on the oral testimony of the defendants for not only there is no entry of such advance in the defendants' books of account-for no books are produced nor is there any promissory note taken from the plaintiffs to evidence the loan. As I have said before the oral testimony of the defendants is worthless and I refuse to accept their statement. I therefore hold that the payment made by the plaintiffs was not a payment under the indent but under the special agreement arrived at.

10. The result is that there will be a decree for the plaintiffs for Rs. 1452-2-6 with interest thereon at 9 per cent, per annum from the 7th September 1916 till judgment and costs and interest on judgment at 6 per cent, till payment.

11. Defendants' counter-claim will be dismissed with costs.


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