(1) This second appeal is preferred against the decree and judgment of the learned Principal City Civil Judge, Madras, in A. S. No. 12 of 1955, confirming the decree and judgment of the learned Third Additional Judge, City Civil Court, Madras in O. S. No. 1262 of 1949.
(2) The facts are: The appellants M/s. Lakshman Prasad and Sons are a firm of dealers in automobiles carrying on business in Madras. The respondent plaintiff Vajravelu Mudaliar, who had died after the filing of the appeal in the lower appellate Court and whose legal representatives are the respondents in this second appeal, purchased from the appellants a Hindustan-10, four door sedan car on 24-9-1947 for Rs. 9,350/-. That was at a time when the Madras Civil Motor Cars Control Order, 1947. was in force, and no type of car could be sold for a price exceeding that fixed by the Government under that order. It is the case for the plaintiff that this sum of Rs. 9350/- was represented to be the controlled price exclusive of taxes and other charges.
Subsequently, the plaintiff found out that the controlled rate was Rs. 8,195/-. The plaintiff filed the suit, out of which this second appeal arises, for the return of the excess paid by him under a mistake. The defendants contended that they did not represent that the controlled rate of the car was Rs. 9,350/- and that there was no mistake within the meaning of S. 72 of the contract Act entitling the plaintiff to recover the difference between the controlled rate of Rs. 8,195/- and the amount actually paid by the plaintiff.
(3) Both the Courts below came to the conclusion that the plaintiff was entitled to the decree asked for. The defeated defendants have preferred this second appeal.
(4) The point urged before me by the learned advocate Mr. P. V. Subramanyam is that the facts of this case fall within the decision in Lakshmanprasad v. Achutan Nair, (S) : AIR1955Mad662 .
(5) Sales of cars by M/s. Lakshmi Prasad and Sons to various people for Rs. 9,350/- when the controlled rate Rs. 8,150/- had been the subject matter of the following appeals in this Court (S) : AIR1955Mad662 (referred to above) was disposed of by the City Civil Court, Madras, in O. S. No. 635 of 1948 and the appeal therefrom was disposed of by Bashir Ahmed Sayeed, J. (reported in : AIR1952Mad779 ) and the Letters Patent appeal preferred therefrom, L. P. A. No. 218 of 1952: (S) : AIR1955Mad662 ), was disposed of by the learned Chief Justice and Somasundaram J. The learned Chief Justice and Somasundaram J. disposed of on the same lines Laxmanprasad and Sons v. Fernandez C. C. C. A. No. 40 of 1952. The decision in L. P. A. No. 218 of 1952: ((S) : AIR1955Mad662 ) was followed in this decision. Panchapakesa Ayyar, J. disposed of Sreenivasier v. Lakshman Prasad and Sons, C. R. P. No. 1309 of 1952, and Subburamier and Sons v. Lakshman Prasad and Sons C. R. P. No. 1555 of 1952 wherein the learned Judge dismissed those Civil Revision Petitions on the ground that the Bench Ruling in 1955 Mad WN 601: (S) : AIR1955Mad662 directly applied and that the contracts were for definite prices and the prices fixed had not been left unfixed as in the case in C. C. C. A. No. 54 of 1952, disposed of by the same Bench on 2-5-1955.
In C. C. C. A. No. 54 of 1952 (Lakshmanprasad and Sons v. Chandrasekhar) disposed of by he learned Chief Justice and Somasundaram J. on different facts, the Bench held that the contract itself must be deemed to have been for the sale of the car for Rs. 8,395 and that was the amount due under the contract and that the plaintiff under a mistake paid more viz., Rs. 9,550/- and that the case would directly fall under S. 72 of the contract Act and the excess paid by the plaintiff was a case of mistake and the plaintiff was therefore entitled to recover the sum so paid.
(6) On the facts of the present case the decision which would apply will be C. C. C. A. No. 54 of 1952. In fact the attention of the lower appellate Court was drawn to (S) : AIR1955Mad662 , which had been reported by that time, and it pointed out that the facts of this case were different. Here also, though D.W. 1 had deposed that he had no recollection about P.W. 1 negotiating the purchase on the car on behalf of the plaintiff respond and denied having made any representation that the price quoted by him was the controlled rate P.W. 1 has given evidence that he definitely asked D.W. 1, the defendant firm's manager, as to why there was a difference in price and that D.W. 1 informed him that it was the controlled rate. The learned trial Judge has observed 'The demeanour of D.W. 1 was very unsatisfactory. I have no hesitation in accepting the evidence of P.W. 1 in preference to that of D.W. 1.'
The controlled rate admittedly was notified in the Fort. St. George Gazette dated 17-6-1947. This car transaction was on 24-9-1947. It is obvious therefore, on the testimony of P.W. 1, that he paid Rs. 9,350/- on the express representation that the price quoted to him and received from him was the controlled price. In fact D.W. 1 himself has agreed in cross-examination that P.W. 1 might have said to him that he had purchased a similar car for his father for Rs. 8,195/-. He pretended, however that he did not recollect whether he told P.W. 1 that the price quoted viz., Rs. 9,350/- was the controlled rate. Both the Courts below, however, found that it was on the representation of D.W. 1 that Rs. 9,350/- was the controlled rate that P.W. 1 paid the amount and purchased the car. Thus, as concluded by the Courts below, the contract between the parties was in essence to pay and receive only the controlled rate, irrespective of what it would be.
(7) That being the essence of the contract, the payment of difference between Rs,. 9,350/- and Rs. 8,195/- would represent payment made by mistake attracting S. 72 of the Indian Contract Act. This case as contended by the learned advocate Mr. Muthukumaraswami Mudaliar is directly governed by C. C. C. A. No. 54 of 1952 and not by (S) : AIR1955Mad662 .
(8) In the result, this second appeal is dismissed and in the circumstances without costs.
(9) Appeal dismissed.