-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Regular First Appeal No.25 of 1989. M/s. Sriniwas and Company, a registered partnership Firm, New Anaj Mandi, Chandpole, Jaipur and Others VERSUS M/s. Anil Kumar Sushil Kumar through Shri Ramniwas, Proprietor/partner, Grain Merchant, Chomu, Jaipur & Anr. Date of Judgment :::: 15th April, 2010. Hon'ble Mr. Justice Dalip Singh Mr. B.L. Agarwal and Mr. Amit Gupta, Counsel for the plaintiff-appellants Mr. S.L. Sharma. on behalf of Mr. Suresh Pareek, Counsel for the defendant-respondents *** By the Court : This first appeal, under Section 96 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree passed by the learned Additional District Judge, Jaipur District Jaipur dated 21.12.1988, in civil suit No.32/83 (147/87) filed by the plaintiff-appellants for recovery of a sum of Rs.10,080/- and Rs.3,320/- as interest @ 1.50% per hundred annum, total Rs.13,400/- for damages against the defendant-respondent Nos.1 and 2, which was dismissed by the learned trial Court. Facts, in brief, giving rise to the present first appeal are that the defendant-respondent No.1 is alleged to have entered into a contract for the sale of three wagons of cotton seeds containing 210 -2- bags each @ Rs.123/- per beg on 25.03.1981. The aforesaid contract is said to have been executed through the defendant No.2 by way of the contract note, Exhibit-2, which was prepared by the defendant No.2 and as per the case of the plaintiff, it was sent to both the contracting parties i.e. the plaintiff and the defendant No.1. The case of the plaintiff further was that the defendant No.1 failed to carry out the obligations under the contract of sending the goods by despatching them, as agreed in the month of May 1981 so as to reach the plaintiff appellant by the end of June, 1981. Since, the defendant No.1 did not despatch the goods as they were not received by the plaintiff, the plaintiff had to purchase the said goods in the open market, which as per the plaintiffs' case were purchased @ Rs.139 per bag instead of the agreed rate of Rs.123/- per bag and thus, the plaintiff is alleged to have incurred a loss of Rs.10,080/- in all having purchased the cotton seed at higher price. The plaintiff due to the non-supply of the goods and having allegedly incurred the aforesaid loss sent a notice to the defendant No.1 through his counsel and since the defendant No.1 failed to comply with the directions of the notice the present suit came to be filed by the plaintiff. The defendants put in their appearance and denied their liability. The defendant no.1 contended that there was no concluded contract between the plaintiff and the defendant No.1, as such the defendant No.1 pleaded that the defendant No.1 has no liability towards the plaintiff. It was also stated by the defendant No.1 that the defendant No.2 was never authorized to act on behalf of the defendant No.1 and as such the contract entered by the defendant -3- No.2, if at all was not binding upon the defendant No.1. The defendant No.2 denied his liability for any loss that the plaintiff might have incurred and pleaded all that, the defendant No.2 did is to send the contract form, along with the terms and conditions to both the parties and both the parties were required to confirm to each other the contract with its term. Moreover, as per the defendant No.2, as per the terms and conditions contained in the contract-note the defendant No.2 is not liable for any loss, which either of the parties may incur as a result of the aforesaid contract and, hence, the defendant No.2 pleaded that the suit be dismissed against the defendant No.2. The learned trial Court framed as many as seven-issues and the evidence was recorded in the form of PW-1 Manohar Lal and in documentary evidence in the form of Exhibit-1 to Exhibit-9 were produced on behalf of the plaintiffs. On the side of the defendant No.1 DW-1 Ram Niwas appeared in the witness-box and on the behalf of the defendant No.2 DW-2 Prakash Chand appeared in the witness-box. The learned trial Court having recorded the evidence decided Issue No.1 against the plaintiff. Since, that was the most important issue as to whether the defendant No.1 had entered into a contract with the plaintiffs for supply of three wagons of cotton seeds @ Rs.123/- per bag, which the defendant No.1 agreed to send on 25.03.1981 through the defendant No.2. The learned trial Court was of the opinion that the defendant No.1 never entered into any such contract and as such the defendant No.1 was not liable. So far as the defendant No.2 is concerned, the learned -4- trial Court came to the conclusion that on the basis of the condition contained in the contract-note the defendant No.2, who was merely acting as a brocker and not as an agent of the defendant No.1, which fact could not be proved the defendant No.2 is also not labile. Since, the findings on the other issues were dependent upon the findings on Issue No.1 the suit filed by the plaintiff-appellant was dismissed. Hence, this regular first appeal. I have heard the learned counsel for the plaintiff- appellants as well as the learned counsel for the defendant- respondent No.1 and perused the record. So far as the findings on Issue No.1 with regard to the defendant No.1 having entered into a contract with the plaintiff is concerned, the learned counsel for the plaintiffs did not press the fact that there was in fact any concluded contract between the defendant No.1 and the plaintiffs. Learned counsel fairly conceded that in the event of the converse i.e. in case the plaintiff wanted to seek specific performance of the contract through the contract-note dated 25.03.1981 against the defendant No.1 for actual supply of the goods based on the alleged contract the plaintiff would not have been in a position to seek specific performance of the same. As without the defendant No.1 signing the contract-note, Exhibit-2 the defendant No.1 could not beheld liable. Similarly, the learned counsel also did not dispute the findings of the learned trial Court that there was no evidence on record to show that after the contract-note was despatched to both the parties i.e. the plaintiff and the defendant No.1 there was any confirmation of the same by the parties showing conclusion of the -5- contract between the plaintiffs and the defendant No.1. In that view of the matter so far as the finding given by the learned trial Court on Issue No.1 is concerned the same call for no interference, as admittedly there was no privy of contract directly between the plaintiffs and the defendant No.1. The submission of the learned counsel for the plaintiff- appellants is that even assuming that the plaintiffs had not concluded his contract with the defendant No.1 liability ought to have been fastaned upon the defendant No.2 the respondent No.2, herein and that the learned trial Court has committed an error in not passing any decree against the defendant No.2. So far as the aforesaid submissions is concerned, it is not in dispute that Exhibit-2 is the basis of the suit and the said contract-note is said to have been issued by the defendant No.2 to the plaintiffs and the defendant No.1. When the contract-note, Exhibit-2 is not a concluded contract the question of any liability of the defendant No.2 does not arise. Further a look at the contract-note, Exhibit-2 dated 25.03.1981, which was filed by the plaintiffs in evidence goes to show that the basic fact, which would give rise to the cause of action for payment of damages is the non-supplying of the goods, which led to the plaintiffs to purchase the aforesaid goods from the market at higher rate. As per the averments made in Para No.3 of the plaint, goods were required to be despatched in May 1981, which were to have been received by the plaintiffs in May/June, 1981. However, so far as Exhibit-2 the basis of the suit is concerned the same is totally -6- silent about the date of despatch of the goods from Belgaon or of the requirement of the goods to be received by the plaintiffs at Chomu/ Jaipur on or before June, 1981, which would have led to the plaintiffs seek any damages for non-receipt of the same within the stipulated period leading to the plaintiff to buy the same in open market at monthly price and incurring losses. Thus, in fact in the facts and circumstances of the present case no cause of action would have arisen to the plaintiffs for having purchased the goods at a higher rate on account of the non-receipt of the goods in June 1981 as that was not the condition in the alleged contract-note, Exhibit-2. Apart from the above, the learned trial Court has taken into consideration the terms and conditions on which the said contract-note was issued by the defendant No.2 in favour of the plaintiffs and defendant No.1. As per the conditions the defendant No.2 had clearly spelt-out that the defendant No.2 is not liable for the breach of contract and money transactions between the buyers and the seller. It was also required as per the terms of the contract-note that the buyer and seller must confirm their bargains. Admittedly, in this case neither the plaintiff nor the defendant No.1 confirmed the bargains in terms of the contract note Exhibit-2. Thus, so far as the contract-note, Exhibit-2 is concerned, the plaintiffs and the defendant did not act in terms of the condition of the said contract note and not having confirmed the terms of the contract to each other. It cannot be said that there was a concluded contract between the parties. The learned trial Court, in my view, has therefore, rightly -7- held that the defendant No.2 cannot be held liable for any damages in the facts and circumstance of the present case. There is, therefore, no merit in this appeal. The first appeal is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. (Dalip Singh), J. Ashok/