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S.S. Dhundshi and Co. Vs. Bailur Ramaraya Manjunath Shanbhag - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appl. No. 1063 of 1969
Judge
Reported inAIR1973Kant195; AIR1973Mys195
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Indian Contract Act, 1872 - Sections 188
AppellantS.S. Dhundshi and Co.
RespondentBailur Ramaraya Manjunath Shanbhag
Appellant AdvocateA.R. Koujalagi, Adv. for ;T.S. Ramachandra, Adv.
Respondent AdvocateK. Ramachandra, Adv.
DispositionAppeal dismissed
Excerpt:
.....parties and to account for the realisations thereof. a-5 that the sales to persons mentioned therein had to be merely made by the respondent and the obligation of collecting the sale proceeds thereof being clearly on the appellant himself......collected by himself. in regard to the others, there is no doubt some indication is there that the sale proceeds must be collected by the respondent himself. the trial court decreed the suit in full, but subjected it to a deduction of a certain sum. it also awarded interest at the rate of 9 per cent, per annum. on appeal by the present appellant the court below affirmed the said judgment and decree with a modification as regards the interest payable. hence, this appeal by the first defendant. 3. on behalf of the appellant. sri a. r. koujalgi. learned advocate submitted that on the express terms of ex. a-5 it can be clearly inferred that the respondent himself was liable for the collection of the value of the goods sold to the said parties and to account for the realisations thereof......
Judgment:

B. Venkataswami, J.

1. This appeal under Section 100 of the Code of Civil Procedure is by the first defendant in O. S. Ho. 476 of 1961 end directed against the judgment and decree made by the learned Civil Judge at Udipi in Appeal Suit No. 48 of 1968.

2. The suit filed by fee respondent is one for recovery of a sum of Rs. 1,000/- alleged to have been overpaid by mistake to the appellant, while rendering accounts in regard to the sales conducted on behalf of the appellant. It would appear that 201 bags of cotton seeds had been entrusted by the appellant to the respondent as his agent for selling them. The terms and conditions governing the relationship of the parties in regard to the business are not expressly set out anywhere. They have, therefore, to be spelled out from the correspondence between the parties. As and when goods were sold the respondent was sending certain amounts realised by such sales after deducting his commission end other charges. He, therefore, sent several sums in three or four instalments. It would appear that when the stocks remained unsold at one stage, the appellant instructed the respondent not to sell the goods except on his specific instructions. It is in this regard that Exhibit A-5. a letter addressed by the appellant to the respondent looms large in this case. By the said letter the appellant instructed the respondent to sell the goods in certain specified quantities to the parties named therein. In doing so he clearly mentioned that in regard to one of them the sale price would be collected by himself. In regard to the others, there is no doubt some indication is there that the sale proceeds must be collected by the respondent himself. The trial Court decreed the suit in full, but subjected it to a deduction of a certain sum. It also awarded interest at the rate of 9 per cent, per annum. On appeal by the present appellant the Court below affirmed the said judgment and decree with a modification as regards the interest payable. Hence, this appeal by the first defendant.

3. On behalf of the appellant. Sri A. R. Koujalgi. learned Advocate submitted that on the express terms of Ex. A-5 it can be clearly inferred that the respondent himself was liable for the collection of the value of the goods sold to the said parties and to account for the realisations thereof. Therefore, even if there has been an over payment as contended, the same is liable to be adjusted towards the dues from the said parties.

4. The Courts below have come to the conclusion that Exhibit A-5 ex facie did not indicate that the respondent should realise the sale proceeds in cash. The reasoning of the Court below in regard to it has been set out in para. 10 of the judgment In appeal and it reads thus:--

'In the instant case, authority of the agent has been limited to a considerable extent, I have already observed, in Exhibit A-3 the agent, has been prevented from selling without hearing from the principal. Under Exhibit A-5 agent has been directed to sell 125 bags of cotton seeds to the persons named therein. Nowhere in Ex. A-5 it is stated, that the sale should be for cash. No doubt, request has been made by the first defendant to the plaintiff to collect the sale proceeds from the persons named therein except from one and remit the same, From the recitals in Ex. A-5. it cannot be inferred with reasonable certainty, that the plaintiff was prohibited from effecting the sale on credit or was directed to sell only for cash. On the other hand, inference is that plaintiff was to sell the cotton seeds to the named persons and collect the proceeds. Exhibit A-5 would further indicate, that the first defendant had a talk with plaintiff prior to 10-1-1960. The plaintiff does not appear to have been able to recover the sale proceeds of the goods sold to two persons. After all the goods were sold, the plaintiff submitted the accounts as per Ex. B-3 dated 19-2-1960.'

5. I see as reason to differ from the observations of the learned Civil Judge and the conclusions he has drawn in regard to it at a later stage in the judgment. It is no doubt true as con-tended by Sri A. R. Koujalgi learned Advocate, that the respondent was entitled to collect the sale proceeds in regard to the sales to persons named in Ex. A-5. That is not the same thing as saying that the respondent was bound to collect the sale proceeds and account for it to the appellant. On the other hand, it is possible to infer from Ex. A-5 that the sales to persons mentioned therein had to be merely made by the respondent and the obligation of collecting the sale proceeds thereof being clearly on the appellant himself. It is to be remembered that the appellant has named the purchasers thereby implying that there was a prior agreement between the appellant and the said purchasers. In such a situation, the inference drawn by the Courts below cannot be said to be unreasonable. The mere fact that another inference is possible on the basis of the contents of Ex. A-5, in my opinion, would not be sufficient to disturb the finding of the Courts below in a second appeal of the present nature. I therefore, reject the contention urged on behalf of the appellant.

6. In the result, this appeal falls and is dismissed with costs .


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