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D. Keethalingam and Co., Vijayapuram Vs. S.M. Balasubramaniam - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2186 of 1961
Judge
Reported inAIR1966Mad23; (1965)2MLJ164
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantD. Keethalingam and Co., Vijayapuram
RespondentS.M. Balasubramaniam
Cases ReferredKeshardeo v. Radha Kissen
Excerpt:
- - the plaintiff contended that the defendant received the bank advice and patti for the goods, but failed to pay and take delivery of the goods contracted for and the plaintiff had to resell the same at rs. empowers the high court to interfere where a subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. it appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it......received the bank advice and patti for the goods, but failed to pay and take delivery of the goods contracted for and the plaintiff had to resell the same at rs. 21-8-9 per bag being the then market value, thereby suffering a loss of rs. 2-3-0 per bag. the plaintiff further claimed interest and demur rage, which he incurred. (2) the plea of the defendant was that he never authorised anantaraman to enter into a contract on his behalf, that the defendant was not liable under the contract and that as a result of correspondence exchanged between the plaintiff and the defendant, the defendant paid for and took delivery of the goods and the said contract was discharged by accord and satisfaction. (3) the question, therefore, that had to be decided by the trial court, was, whether.....
Judgment:
ORDER

(1) This petition is filed by the defendant in S. C. S. No. 58 of 1959 for revising the order of the City Civil Court, Madras, holding that the defendant is liable to pay the plaintiff a sum of Rs. 1646-80 nP. for breach of a contract. The case for the plaintiff briefly is that the defendant entered into a contract with the plaintiff through one Anantaraman on 22-9-1958 for purchase of 40 tons of groundnut oil cake at Rs. 23-11-0 per bag f.o.r. Thiruvarur. The plaintiff contended that the defendant received the bank advice and patti for the goods, but failed to pay and take delivery of the goods contracted for and the plaintiff had to resell the same at Rs. 21-8-9 per bag being the then market value, thereby suffering a loss of Rs. 2-3-0 per bag. The plaintiff further claimed interest and demur rage, which he incurred.

(2) The plea of the defendant was that he never authorised Anantaraman to enter into a contract on his behalf, that the defendant was not liable under the contract and that as a result of correspondence exchanged between the plaintiff and the defendant, the defendant paid for and took delivery of the goods and the said contract was discharged by accord and satisfaction.

(3) The question, therefore, that had to be decided by the trial Court, was, whether Anantaraman was authorised to enter into the contract on behalf of the defendant and whether as a result of the subsequent correspondence and payment by the defendant the contract was discharged by accord and satisfaction. According to the plaintiff, as the defendant refused to take delivery of the goods, he had to enter into a different contract with one Vidyananthan, which resulted in a loss, for which he has made the claim. But according to the defendant, the second contract was only as a result of correspondence between the parties, which had the result of discharging the earlier contract by accord and satisfaction. The lower court on the evidence came to the conclusion that Anantaraman was the authorised agent of the defendant and that the contract dated 22-9-1958 was validly entered into on behalf of the defendant, but considering the relevant letters that were exchanged between the parties found that the second contract by which the goods were sold by the plaintiff for a lesser price was a separate contract and that the liability of the defendant to pay for the loss was not extinguished.

(4) Mr. T. S. Kuppuswami Iyer, learned counsel for the defendant-petitioner, took me through the entire correspondence between the parties. He very strongly relied on Ex. B. 6, B-7, A-11 A-12 A-13 and A-14 and A-17 and submitted that a proper reading of the letters would disclose that the earlier contract was concelled and by consent of parties the second contract was entered into. Ex. B. 6 is a telegram sent by one Vaidyanathan on 21-11-1958 to the plaintiff offering to take the oil cakes that were sent under the original contract at Tiruvarur at Rs. 21-8-0. The plaintiff replied this letter by Ex. A. 11 to the defendant stating that they were accepting the offer made by Vaidyanathan by telegram. In this letter Vaidyanathan is referred as 'Your party (Thangal Vagai)'. It is also not in dispute that the goods, which were the subject-matter of the first contract, were subsequently delivered to Vaidyanathan at a lower rate By Ex. A-12 the plaintiff accepted the offer of Vaidyanathan agreeing to pay demurrages also Ex. A. 13 and B.7 are statements of accounts furnished by the defendant to the plaintiff. The two statements of accounts were accepted by the plaintiff. Subsequently the plaintiff wrote Ex. A. 17 to the defendant on 4-12-1958.

In that letter the plaintiff requested the defendant to send the patti, which he had received for the despatch of goods under the first contract, so that the plaintiff could send the patti to V. N. P. R. Firm and have it cancelled and got a new patti. The plaintiff also mentioned that he had taken steps to cancel the earlier patti. A perusal of the statement of accounts, Ex. A. 13 and B. 7 and the letter Ex. A. 17 probabilises the contention of Mr. Kuppuswami Iyer, the learned counsel for the petitioner, that the first contract was cancelled by consent of parties and a fresh contract was entered into. But it has to be considered whether this is a case for interference under S. 115 C. P. Code. S. 115 C.P.C. empowers the High Court to interfere where a subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. Learned counsel relied on clause (c) and submitted that this a fit case for interference, as he had succeeded in convincing this court that the decision of the lower court is erroneous. The power of High Court under this section has been considered by the Privy Council and the Supreme Court.

In Amir Hassan Khan v. Sheo Baksh Singh, ILR 11 Cal 6 (PC) the Privy Council held as follows:

'The question then is, did the Judges of the lower courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case; and, even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity'. In Balakrishna Udayar v. Vasudeva Aiyar, ILR Mad 793: AIR 1917 PC 71 the Privy Council observed at page 799 (of ILR Mad): (at p. 74 of AIR) as follows:

'It will be observed that the section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved'. The Privy Council after referring to the decisions in ILR 11 Cal 6 (PC) & ILR Mad 793: AIR 1917 PC 71 summed up the position in Venkatagiri Aiyangar v. H. R. E. Board, Madras thus. 'S 115 C.P.C. applies only to cases in which no appeal lies, and, where the legislature has provided no right of appeal, the manifest intention is that the order of the trial court right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters: (a) that the order of the Subordinate Court is within its jurisdiction; (b) that the case is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.'

Thus it will be seen that the High Court can interfere only if the subordinate court has acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. In this case it is not contended that there was any breach of any provision of law or error in procedure. The fact that the decision is erroneous would not empower the High Court to interfere under S. 115 C.P.C. The three Privy Council decisions above cited were referred to and approved by Supreme Court in Keshardeo v. Radha Kissen, : [1953]4SCR136 .

(5) In the result, though I accept the contention of the learned counsel for the petitioner, that the conclusion arrived at by the lower court is erroneous, it cannot be interfered with in revision. The revision petition is dismissed with costs.

(6) Petition dismissed.


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