Case: Juggilal Kamlapat Vs. Pratapmal Rameshwar

appellant and the respondent which will be referred to presently and the contracts were entered into in the standard I.J.M.A. Contract forms. The fact that 3 contracts relating to two deliveries have been accepted show that the respondent was following the practice prevalent in Calcutta by respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 3, 00, 000 yards of hessian at Rs. 74/- per 100 yards deliverable in equal installments in April, May and June. It is alleged in Paragraph 14 of the plaint that he had duly delivered the delivery orders and the respondent paid for and took delivery of the same. But the respondent wrongfully failed and neglected to pay and take delivery of pucca Mills Delivery Orders relating to goods deliverable in May and June, 1952. In the written statement the respondent stated that the delivery orders delivered by the appellant were paid for and taken delivery of by the respondent before the relevant contract was discovered to be void. In the written statement the respondent did not deny that the appellant duly delivered t he delivery orders and the respondent paid for and took delivery of the same but pleaded that he paid and took delivery before he discovered that the relevant contract was void. It is significant that the attack was on the contract on the ground that it became void because of the West Bengal Act V of 1950. There is no challenge against the delivery order. The contention of the appellant that the delivery orders relating to the present suit were the usual delivery orders which were prevalent in the Jute Trade in Calcutta appears probable. No specific plea that the delivery orders relating to the suit were different from the delivery orders which the respondent accepted regarding the April delivery was raised nor was it contended that the delivery orders which lie accepted did not contain the restrictions requiring registration and giving of an undertaking. In the additional written statement there is no specific reference to Paragraph 14 of the plaint.Another contract was entered into between the appellant and the respondent on 19th April, 1952, whereby the respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 90, 000 bags of B Twills at Rs. 155/- per 1 00 bags deliverable in June, 1952. The contract was in the Standard I.J.M.A. Contract Forms. In Paragraph 18 of the plaint it is alleged that on the due date the plaintiff duly tendered the pucca Delivery Orders in respect of the goods deliverable in June, 1952, and the respondent failed and neglected to accept and pay for the goods. Regarding this contract the defence in the written statement is in Paragraph 6 where it is stated that "the facts and/or validity of the alleged tender and/or the alleged resale and/or the alleged notice are denied". There is no reference about the transactions in the additional written statement.raking into account the fact that the appellant as well as the respondent were engaging themselves in the Jute Trade in Calcutta and were following generally the practice of the Jute Mills Association and had entered into various contracts and having business relationship, the conclusion seems to be irresistible that the respondent was familiar with the delivery order with its conditions and accepted it as being in use in the ordinary course of business. It is difficult to accept the plea that the delivery order was not negotiable or that it was not in the terms of the contract and that it would not have enabled him to take possession of the goods as he had to fulfill certain other conditions as getting himself registered with the Mill and giving an undertaking as required. From these circumstances it is clear that the delivery orders were according to the terms of the contract and the respondent himself was aware of them. The plea that the delivery orders are not in accordance with the contract and that the conditions imposed amount to a new agreement are all belated pleas put forward to avoid the liability.This aspect of the case was not brought to the notice of the trial Judge and the appellate court. The learned trial Judge held that the appellant had not raised any plea of estoppel and therefore cannot rely on the failure of the respondent to point out the defects in the delivery observed as follows:"The plaintiffs contention was that under the contract the tender of delivery orders , namely, Mill Pucca Delivery Orders, was a valid tender according to the contract and in, any event was proper tender by virtue of trade customs and understood and accepted Mills pucca delivery orders as delivery orders and that the defendant had accepted mills pucca delivery orders and paid therefore with respect to certain deliveries under the contracts in question. It was also contended on behalf of the plaintiff that in some of the correspondence the defendant alleged that as the plaintiff failed to tender mills pucca delivery orders, the contra ct was cancelled and, therefore, there was in the correspondence never any contention on behalf of the defendant that mills pucca delivery orders were not proper tender. No ca se of estoppel was pleaded and I am, therefore of opinion that the plaintiff cannot raise any such plea of estoppel."33. The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs.ORDER34. In

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs.