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TMI Blog1961 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... e railway station to take delivery, but he was informed by the Goods Clerk that he could be given delivery only when the railway receipt was signed by the Sub-divisional Officer, Bettiah. The plaintiff approached the Sub-divisional , Officer, Bettiah, who directed a Government doctor to examine the oil first, and it was only when the doctor reported that the oil was pure and unadulterated that permission could be granted for delivery. The doctor went to the railway godown, took small quantities of oil from several tins, and reported that the oil contained in the tins was not pure. He also sent samples of the oil to the Government Chemist at Patna for examination. The latter also found the oil to be adulterated, and reported to that effect. The Sub-divisional Officer, accordingly, got the entire consignment kept in the godown of the plaintiff and had it locked and sealed by a Deputy Magistrate, and the key of the godown was kept in charge of the Sub-divisional Officer. 2. A criminal case was started thereafter against the plaintiff and the defendant. They were both convicted and fined Rs. 500/- each. They preferred appeals against their conviction and sentence. The appellate Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the defendant, the goods were despatched to Bettiah according to the instruction of the plaintiff, and it was wrong to suggest that the plaintiff ordered the goods to be supplied to him at Motihari. The defendant was not aware of the real quality of the mustard oil supplied, and it was the Ganges Oil Mills (defendant No. 2) which was responsible for the quality of the oil. It was the Ganges Oil Mills which guaranteed the quality of the oil as pure, and this defendant had no reason to suspect the bona fides of defendant No. 2. If, therefore, on chemical examination of the oil, it was discovered that it was not of pure quality, the liability for it would fall on the shoulders of the Ganges Oil Mills, and not on the defendant No. 1. This in substance, is the tenor of the written statement filed on behalf of the defendant. 4. The plaintiff instituted a suit for recovery of the aforesaid amount at Motihari in the court of the Subordinate Judge on the 8th of November, 1951. The Subordinate Judge, by his judgment dated the 25th of April, 1953, held that he had no jurisdiction to try the suit as defendant No. 2, the Ganges Oil Mills could not be amenable to the jurisdiction of that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant, two questions have been raised by the learned Counsel for the parties. The first question is as to whether the present suit by the plaintiff is barred by limitation as having been filed beyond the time mentioned above, being the 16th of June, 1953; and, secondly, whether the defendant appellant entered into a contract with the plaintiff for supply of 352 tins of mustard oil on its own account as the vendor of the defendant undertook to supply the same only as a commission agent and did not hold out any guarantee for the purity of the stuff to be supplied and it was interested only in its commission, and, as such, could not be answerable for any adulteration of the oil which was detected later on chemical analysis under the direction of the Sub-divisional Officer, Betiah. 7. On the first question, the court below has held in favour of the plaintiff, relying on Section 14 of the Limitation Act. It is not denied that, if Section 14 of the Limitation Act cannot be invoked in support of the plaintiff's case, the suit must be held to have been filed beyond time. The only question is whether the period from the 8th of November, 1951, when the suit was instituted, to the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary part of the duty of the Court in returning the plaint, there is no reason why this also should not be considered as bona fide prosecution of suit. Within four days of that endorsement, the present suit was instituted which cannot be regarded as unreasonable in the circumstances of the case. 8. Mr. Lal Narayan Sinha, for the appellant, has referred to the cases of Maqbul Ahmad v. Onkar Pratap Narain Singh (62 Ind App 80 at p. 88 : AIR 1935 PC 85 at p. 88) and East India Co. v. Uditchurn Paul 5 Moo Ind App 43 at p. 68 (PC); and Mr. Harilal Agarwal, who has followed Mr. Lalnarayan Sinha, has referred to the case of Firm Jiwan Ram Ramchandra v. Jagernath Sahu AIR 1937 Pat 495, in support of the contention that the plaintiff could not be entitled to the exclusion of the period claimed by him in terms of Section 14 of the Limitation Act. In the case reported in the real point for consideration was that where the period of limitation expired on a date when the Court was closed that period would be available only when such an application had to be filed in the proper Court, and not in a court which had no jurisdiction. In my opinion, therefore, the point which arises for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the plaintiff. In the second place, the learned Subordinate Judge ordering the return of the plaint had not fixed a date for presentation of the plaint which would exempt the plaintiff from bona fide prosecution of the suit or presenting the plaint in a proper Court with due diligence; but, on the contrary, the order was passed by the Court returning the plaint on the 10th of December, 1954, and within four days thereof the suit was instituted in the proper Court. None of the considerations which weighed there with the learned Judges in this case really arise in the present contest. Mr. A.B.N. Sinha, for the respondent, has drawn our attention to the case of Narendrabhooshan Lahiri v. Berahampur Oil Mills Ltd. (ILR 60 Cal 1122 at p. 1131 : AIR 1933 Cal 914 at p. 918) wherein a Division Bench of the Calcutta High Court laid down a proposition which supports the contention of learned Counsel. The observation of Mukherji, J., on this point runs as follows: "This being the state of authorities on the subject the correct view, in my judgment, to take of the matter is that the proceedings cannot be regarded as having ended until the Court, in whom the duty lies of confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying the commodity. The learned Subordinate Judge has rested his conclusion on the ground that, although the defendant pleaded that the contract was entered into between the parties on the strength of a letter sent by the plaintiff to the defendant at Kanpur, no such letter was produced, nor was any register of accounts produced by the defendant which would show in what terms the order was placed by the plaintiff for supply of the goods concerned. The defendant appears to be a firm carrying on considerable business, and it is difficult to imagine that the letter sent by the plaintiff, if one were sent, would not be preserved, nor that the fact would not be noted in some Bahi of the defendant. If the defendant did not produce the relevant documents, that would only lead to an inference against the defendant and in favour of the plaintiff. In my opinion, the inference drawn by the Court below against the defendant cannot be held to be unreasonable in the circumstances. Mr. Harilal Agarwal, for the appellant, however, contended that, although the inference of the Court below may be considered as well grounded, as it stands, yet a reference to the plaint itself shows that the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless, of course, it was in course of the criminal case itself that the proprietor of the defendant firm found himself in difficulty in regard to the quality of the oil supplied. A reference to Exhibits 5, 5(a) and 5(b) also leads to the same conclusion inasmuch as in exhibit 5, which is a post card from the defendant to the plaintiff, dated the 12th of June, 1950 the following passage occurs: - "In accordance with the letter of Babu Sukhdeo Prasad we have purchased one wagon of mustard oil 352 tins (weight 154 mds.) at Rs. 84/- per maund bilti cut, ready and sent a telegram to Bettiah gadi asked for advance of Rs. 1000/- only to be sent by T.T. which must be sent." In exhibit 5 (a), which is another post card written by the defendant to the plaintiff, dated the 14th of August, 1950, the following occurs:- "We had purchased ready goods of 352 tins of Ganga brand mustard oil, we have sent to your Bettiah Gadi Railway receipt with hundi for Rs. 13,720/-." In exhibit 5 (b) which is a letter from the plaintiff to the defendant, dated the 25th of August, 1950, the following occurs:- "I am to inform you that 352 tins of mustard oil, which I have purchased from you, has not been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er customer, the defendant cannot be liable. In my opinion, this point is covered by the discussion about the liability mentioned above. 12. Learned Counsel has also endeavoured to make a point in regard to the amount decreed in favour of the plaintiff by the Court below. He has contended that the oil was still lying with the plaintiff in his godown and it was his duty to diminish the loss in a reasonable manner. He has given no evidence as to what he has done in regard to that, and, in that view, he could not be held entitled to the sum decreed. I have already stated that the Court below has not allowed the plaintiff any damages, but only the price paid by him. It appears on an examination of the judgment of the High Court in revision filed against the conviction of the defendant that all the tins were forfeited to Government. It is, no doubt, true that the plaintiff obtained an order from the Sub divisional Officer not to have them destroyed until the decision of the civil suit. That, however, does not alter the position that the oil was forfeited to the Government, and the plaintiff has no manner of right to deal with that commodity. A presumption, therefore, that the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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