(RFA filed U/s. 96 of CPC against the judgment and decree dt.8.9.99 passed in O.S.No.10356/91 by the XXVIth Addl. City Civil Judge, Mayohall, Bangalore, Dismissing the suit for Recovery of Money.)
This is an appeal filed by the appellant-plaintiff under Section 96 of the C.P.C. against the judgment and decree dated 8.9.1999 passed by the XXVI Addl. City Civil Judge, Mayohall, Bangalore, where by the suit filed by the appellant-plaintiff came to be dismissed. Therefore, he has come up with this appeal mainly on the ground that the court below failed to take in to account the copies of the telex correspondence exchanged between the appellant-plaintiff and respondent-defendant and the court below has erred in not accepting the copies of the telex messages/correspondences as they are carbon copies, and that the alleged privity of contract has not been established by the appellant-plaintiff. Even though the defendant did not choose to cross-examine the plaintiff and did not adduce oral evidence to prove issue Nos.4 and 5, the court below come to a wrong conclusion by holding that plaintiff failed to prove issue Nos.1 to 3 in dismissing the suit. Hence this appeal.
2. The case of the appellant in brief is that, it has engaged in the export of garments to various countries, so also the defendant-respondent is engaged in supplying of fabrics and processing of fabrics, and the defendant-respondent approached the appellant-plaintiff seeking orders for supply of fabrics for processing. The respondent-defendant used to supply the fabrics though others like Soma Textiles, Rohit Mills, etc. Some part of the payments were also made by the appellant-plaintiff to the aforesaid parties on the instructions of the respondent-defendant. Therefore, there is privy contract with the respondent-defendant. Accordingly, respondent-defendant was obliged to supply fabrics and process fabrics. Accordingly the plaintiff-appellant placed several orders with the respondent-defendant for the supply of aforesaid fabrics. The respondent-defendant undertook to supply fine quality of fabrics for export and assured to supply the entire quantity of fabrics ordered without delay and without any defect. The respondent-defendant was knowing fully well the consequential loss to be incurred by the plaintiff if there is any slightest defect and delay in processing of fabrics. Knowing fully well all these conditions the respondent-defendant did not follow the conditions while supplying the fabrics. The materials supplied by the respondent-defendant were defective and were not fit for export, therefore the appellant-plaintiff sustained loss to the tune of Rs.2,12,080-50 ps. Accordingly, he filed a suit claiming in all RS.2,66,662-66 Ps., which include cost of bleaching, excess billing and non-delivery of orange and lilac colored fabrics and the interest.
3. After receipt of summons the respondent-defendant appeared though counsel and filed its written statement contending that there was no privity of contract in between the plaintiff contract in between the plaintiff and the defendant and the appellant-plaintiff used to place orders in writing directly with the manufacturers for purchase of fabrics. Therefore, the question of short supply or supply of huge quantities of fabrics does not arise, but with regard to samples were concerned there was directing dealing in between the plaintiff and the defendant. Invoices were made by the respondent-defendant in the name of the plaintiff-firm and samples were distinguished from finished products. Therefore, in order to overcome the payment of Rs.2,66,662,66 M/S. Soma Textiles filed a false suit against the respondent-defendant. On the basis of the aforesaid pleadings the court below has framed six issues namely:
“1. Whether plaintiff proves that it had a privity of contract with the defendant in respect of the suit transaction?
2. Whether plaintiff proves that it is entitled to claim the suit amount as a loss attributable to the short supply/defective printing of the garments (suit goods) meant for export?
3. Whether plaintiff is entitled to claim interest at 18% P.a. from defendants?
4. Whether defendant proves that this suit is filed by the plaintiff to raise a false defence for the summary suit No.4615/90 filed by soma Textiles in the Ahmedabad city civil court against the plaintiff?
5. Whether defendant proves that this court has no territorial jurisdiction to try and adjudicate the matter?
6. To what relief the parties are entitled to?”
4. After considering the evidence placed on the record, the trial court answered issue Nos.1 to 5 in the record, the trial court answered issue Nos.1 to 5 in the negative by holding that the appellant-plaintiff failed to prove the issues framed. As against this the appellant has come up with this appeal.
5. Heard the argument of the learned counsel for the appellant.
6. The learned counsel for the appellant submitted that the as per section 17 of the sale of goods Act a contract was entered into between the appellant and the defendant. The sale by samples only. Therefore the trial court has not properly appreciated the evidence placed on record. In order to appreciate the evidence placed on record. In order to appreciate the contention it is just and proper to cull out section 17 of the sale of goods Act:
“17. Sale by sample-(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.
(2) In the case of a contract for sale by sample there is an implied condition
(a) that the bulk shall correspond with the sample in quality;
(b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;
(c) that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample;”
Further, the learned counsel for the appellant submitted that the trial court has held that the plaintiff has produced only a carbon copy of the telex message said to have been sent to the defendant and the defendant sent reply through telex message is incorrect. The court is expected to presume under Section 18 of the Evidence Act regarding telex message sent by both parties. Section 18 of the Evidence Act reads as under:
“18. Admission by party to proceeding or his agent; by suit or in representative character; by party interested in subject-matter; by person from whom interest derived.- Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admission.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by-
(1) Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who made the statement in their character of persons so interested, or
(2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.”
But in the instant case Exs.38 to 58 are the copies of exchange of correspondence said to have took place between the appellant and the defendant. Admittedly, Exs.P38 to P58 are not the copies of the telegraph message received by the appellant from the defendant. Therefore, I do not think that the provisions of Section 18 of the Evidence Act is applicable. Therefore the contention of the learned counsel for the appellant that the trial court is wrong in coming to the conclusion that there is no privity of contract in between the plaintiff and defendant cannot be accepted.
7. I have carefully gone through the reasons assigned by the learned Sessions Judge in answering Issue Nos.1 to 3 in the negative. There is no written agreement of contract entered into between the plaintiff and the defendant and it is submitted that the plaintiff has not maintained any books of accounts to show that the defendant is due of the suit claim. Moreo
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ver, the plaintiff before filing the suit, the plaintiff has not issued any legal notice calling upon the defendant to pay the suit claim together with interest. Since the plaintiff failed to prove the privity of contract the question of payment of any amount by the defendant does not arise. Non-adducing of any evidence by the defendant is in no way helpful to the appellant. Therefore, the learned Sessions Judge has rightly come to the conclusion in answering Issue Nos.1 to 4 in the negative by holding that there is no written contract or agreement entered into between the parties and the parties and the question of acceptance of the carbon copies of the alleged telex messages exchanged between the parties cannot be accepted. Hence I do not find any good reasons to interfere with the judgment and order of the suit filed by the plaintiff-appellant. 8. Accordingly, the appeal is dismissed as devoid of merits. No order as to costs.