1. The defendant is the appellant in this second appeal. Plaintiff and defendant are two businessmen. The appeal arises out of a suit filed by the plaintiff for recovery of a sum of Rs. 674-7-0 said to be due to him in respect of a contract entered into between the plaintiff and the defendant (Ex. C dated 13-10-1945) whereby the plaintiff was to supply to the defendant 200 bags of kulthi at Rs. 9/- per bag at Muri Bahal Railway Station. The plaintiff's case is that he supplied 175 bags in one instalment and received therefor only Rs. 400/-, leaving a balance of Rs. 1,175/- still due to him; and that so far as the remaining 25 bags were concerned he offered delivery in accordance with the contract, at a later date but that the defendant declined to accept delivery. According to him he subsequently received another sum of Rs. 521/- and hence the present suit for the balance due on these various accounts, which amounted to Rs. 654/- plus interest amounting to Rs. 20-7-0. The defendant, admitted the contract and also the delivery to him of the first lot of 175 bags of kulthi. In respect of the remaining 25 bags, however, he says that the default was with the plaintiff. He also alleges that in all a sum of Rs. 1,471/- was paid up by him to the plaintiff, or on plaintiff's account, and that only a small balance was due from him in respect of the delivery of the first lot of 175 bags, and that so far as the delivery of the remaining 25 bags was concerned he was entitled to damages. Accordingly, in his written statement he counter-claimed that the plaintiff was liable to pay a sum of Rs. 271/- and paid the requisite Court-fee thereon.
2. The two questions which were in dispute between the parties in the course of this litigation are:
(1) Whether the defendant, who admittedly has paid a sum of Rs. 546-14-0 towards customs duty on the first lot of 175 bags, when that lot was being brought over to the station for delivery, was entitled to treat that amount as having been paid on the account of the plaintiff, and claim credit for the same in respect of the balance of purchase price due from him; and
(2) Whether, in respect of the delivery of the balance of 25 bags, the default was on the part of the plaintiff or on the part of the defendant.'
3. The contention of the defendant is that the contract wag one for 'station delivery' and that since customs duty had to be paid before the goods could be delivered at the station, the amount paid by way of customs duty had to be borne by the vendor plaintiff and not by the vendee-defendant, though in fact he (defendant) had had to pay it in order to take delivery. Learned counsel for the appellant relied strongly upon the finding of both the Courts below that the contract was one for station delivery, and urges that this implies as a matter of law that every expense that had to be incurred up to the point of time when the goods could be actually delivered at the station are to be met by the vendor, as being involved in his responsibility to deliver the goods at the station. Both the Courts have rejected this contention.
4. So far as the second point of dispute is concerned, the decision of that also depended on whether the plaintiff was responsible to pay the customs duty, or the defendant. The evidence which has been accepted by both the Courts below shows that the plaintiff did, in fact, send the second lot of 25 bags of kulthi right up to the station but that on account of the defendant not coming forward to pay the customs duty on that lot, the goods could not be delivered to the defendant. The question, therefore, that is involved in this case is as to on whom the liability for payment of customs duty rests. It is to be noticed that though the Courts below have found that the contract between the parties was a contract for station delivery, there is no allegation or issue as to whether the use of the words 'station delivery' in such a contract involves, either as a matter of law or as a matter of trade usage in the locality, that the vendor who had undertaken station delivery had also the liability to pay customs duty. This is a question which cannot be treated as a mere matter of law but must depend upon a proper allegation covering that point, the raising of a proper issue, and giving of relevant evidence on the matter by both sides. The only relevant issue in the case is whether it is a fact that the contract was for station delivery of the kulthi in question. The issue in this form does not raise any controversy as to whether the contract for station delivery includes the liability of the vendor to pay any customs duty that may have to be paid in the course of the transit up to the station.
5. But apart from the absence of any pleading or issue in the matter, the facts and the circumstances in the case make it quite clear that it was not within the contemplation of the contracting parties that the vendor was to pay the customs duty leviable on the goods in this case. Admittedly the contract between the parties was reduced to writing in Ex. C, dated 13-10-1945. The contract merely mentions that the plaintiff-vendor was to transport the bags to Muri Bahal station in his own carts thereby clearly specifying that what all he had to meet was the responsibility for the cartage and the expenses incidental thereto. No doubt, at a later date, on 27-11-1945 another document, Ex. 1 was executed by the defendant. That was more or less a letter by the defendant in favour of the plaintiff whereby he acknowledged his liability to pay the balance of the purchase money on receipt of the first lot of 175 bags of kulthi. In that letter be has categorically admitted that, after giving credit to a sum of Rs. 400/- already paid, what was due from him on that date was Rs. 1,175/-. It is to be noticed that he had paid the customs duty of Rs. 546-14-0 just two days prior to the execution of Ex. 1 and it is surprising if the contention of the defendant now put forward is true -- that he should have acknowledged his unequivocal liability to pay a further sum of Rs. 1,175/- without claiming credit for the sum of Rs. 546-14-0 already paid as customs duty. This letter no doubt uses the expression 'station delivery' but the very context in which the expression is used is enough to negative the plaintiff's contention that it was not meant thereby to fasten on the vendor the liability for the payment of the sum of Rs. 546-14-0. Further, it would appear from the evidence of D. W. 3 that customs receipts are invariably made out in the name of the vendee. This prima facie would indicate that the responsibility for the payment of customs dues, in all such cases, is on the vendee rather than on the vendor, though, of course, that responsibility as between the contracting parties may be varied by a special term in the contract. But if there was any such special term, then obviously in view of this practice, it was upon the vendee-defendant to make out that the responsibility which he incurs in favour of the customs authorities, had been transferred, by virtue of the special term in the contract between him and the vendor, to the vendor. Besides these considerations, as has been pointed out by the lower appellate Court, it is admitted by the defendant himself that the market price of kulthi at the time of the contract was Rs. 7/- per bag and that customs duty on each bag was Rs. 3/2/. If therefore the defendant's contention is correct, then it would mean that he had agreed in effect to take Rs. 5/14/0 per bag (after deducting the customs duty of Rs. 3/2/0 from the contract price of Rs. 9 per bag) at a time when the market price per bag of kulthi was Rs. 7/-/-. This, as between businessmen, is almost inconceivable.
6. Having regard to all these considerations theCourts below were perfectly justified in coming tothe conclusion that the responsibility for meetingthe customs duty in this case was not on the plain-tiff, in spite of the somewhat loose use of the ex-pression 'station delivery.'
7. The judgment of the Courts below is correct and this appeal is dismissed with costs.
8. I agree.