Case: Sitaram Srigopal Vs. Smt. Daulati Devi (Dead) By Heirs and Legal Representatives and Another

The relevant facts giving rise to this appeal are as follows :      1a. On July 29, 1950, Tulsiram Shaw (since deceased) carrying on business under the name and style of "Tulsiram Bhagwandas" purchased certain specific goods for Rs. 35, 100 under Lot No. 32 in an auction held on July 27, 1950 at Panagarh by M/s. Egbart Andrews and Co., auctioneers, under instructions of the Government of India. The major item of these goods in Lot No. 32 comprised of 1540 pieces of "valves sluice water flanged and drilled to B.S.T.C. 4 inch. The book value of this item was stated to be Rs. 88, 454 and that of the remaining goods Rs. 5, 170/14. The reserved valuation at the auction sale was Rs. 35, 000.      2. On August 26, 1950, Tulsiram Shaw sold those specific goods for a sum of Rs. 35, 200 to the partnership from of Sitaram Srigopal. The latter paid the entire price in cash to the former. Tulsiram Shaw further promised to hand over the release order of the goods and/or delivery order by August 28, 1950, to enable the firm to take deliver of those goods from Panagarh. Tulsiram neglected or refused to deliver the said release order in spite of demands by Sitaram Srigopal.      3. On the preceding allegations, Sitaram Srigopal instituted a suit in the High Court of Calcutta against the original defendant, Tulsiram Shaw, on January 15, 1951, for specific performance by the defendants to deliver the said specific goods on the ground that these goods were not readily available in the market and were of some big value and therefore, damages would not afford adequate relief for the loss of the goods. In the alternative, the plaintiff claimed refund of the price of Rs. 35, 200 with interest at 6% per annum and a further sum of Rs. 1, 32, 559 as damages, being the difference between the contract price and the market price of the goods on the date of the breach, namely, the end of August, 1950.      4. The suit was resisted by the original defendant, who, in his written statement, pleaded that he was, at all material times, ready and willing to deliver the release order to the plaintiff and had in fact offered to do so, but the latter requested the defendant to cancel the contract and refund the amount of Rs. 35, 200 by cheque on September 21, 1950, but the plaintiff declined to accept it.      5. During the pendency of the suit, the original defendant died on November 15, 1959, and his widow, Smt. Daulati Devi (respondent 1 herein) and his only son, Bhagwandas Shaw (respondent 2 herein) were impleaded as defendants in place of the deceased.      6. On April 12, 1960, respondent 2, Bhagwandas Shaw, filed an additional written statement in which he took additional pleas.      7. The suit originally came up for hearing before C. K. Mitter, J. on March 8, 1957, when some witnesses were examined. It next came up before the learned Judge on March 11, 1957, for examination of further witnesses. for the defendants, however, failed to appear. The learned Judge, therefore, closed the case and passed a decree for Rs. 35, 200, with interest and costs, against the defendants.      8. On being moved by application, the judgment and the decree was recalled and the suit was again tried by A. K. Mookerjee, J., who, by his judgment, dated August 23/26, 1965, decreed the suit for the refund of Rs. 35, 200 with interest at 6% per annum, from August 26, 1950 up to date and for a further sum of Rs. 63, 445 as damages with interest and costs.      9. The appellate Bench of the High Court, after a reappraisal of the evidence on record, came to the conclusion that the goods in question at the time of the sale were "old andd good but in fair condition". The Bench reasoned : "If the goods were really new, the reserved price would not have been nearly half the book value at a public sale". The Bench found it "impossible to believe that they were in brand new condition". It was, therefore, impossible to fix the market price of the goods of suchd quality upon evidence relating to the sale of brand new goods. In its opinion "the evidence produced by the witnesses for the plaintiff did not prove the market price of the goods (of suchd quality) at the relevant time" and "the only possible conclusion is that the market price of the goods was a price of the goods was a price at which they were sold and purchased in, 1950". On these premises, the Bench was of the opinion "that the procedure adopted by the learned Judge in the court below, namely the tabulation of price mentioned by the witnesses and then taking the lowest price is not warranted by law and the result arrived at by him is not a correct approximation of the market price". In the result, the Bench partly allowed the appeal, and while affirming the decree of the trial Court with regard to the refund of Rs. 35, 200, with interest at 6 per cent per annum, dismissed the plaintiffâ€™s with interest at 6 per cent per annum, dismissed the plaintiffâ€™s claim for damages, which in the opinion of the Bench, were not suffered by him.

Reasoning: 17. For reasons aforesaid, we are in agreement with the appellate Bench of the High Court, that the sluice valves in question, comprised in Lot No. 32 were not "brand new goods" but were old24. The High Court has pointed out and we think rightly that this letter (Ex. M) is not a quotation but a mere statement made in 1952 in a letter written to the plaintiff in reply to the latterâ€™s query as to the market price of such goods in August 1950. Majumdar PW 6 has admitted that he did not personally deal with this letter or its, which was dealt with by Mr. Chakravarty personally, who alone could vouch for the correctness of its contents. The witness candidly conceded that he could not confirm the correctness of the rates given in this letter, without reference to the other documents which were not in his possession at the time of his examination. PW 6 further referred to the catalogue (Exs. N1 and N2) of Newman Mander and Co. Ltd. This catalogue on the fact of it, showed that it was issued in 194525. The learned Judges of the High Court therefore, rightly did not rely on it. They have observed that there is nothing to show that the sluice valve shown in figure 541 in this catalogue is of the same description as those mentioned in Lot No. 32, because PW 6 was unable to affirm this fact26. It is clear from the above conspectus that the evidence produced by the plaintiff was not cogent, convincing and reliable to establish either that the goods comprised in Lot No. 32 were in brand new condition, or the market price of goods of similar specifications in August 1950. In view of the circumstantial evidence on the record, the court below was not wrong in holding that the market price of the goods in question in August 1950 was the same at which they were purchased by the plaintiff from Tulsiram Bhagwandas and consequently, the plaintiff was not entitled to any damages, apart from the refund of Rs. 35, 200 which was the price by him27. No other point has been argued before us.