Adam Sajan And Co. v. Asutosh Bandopadhya And Others Opposite Parties.

1. This Rule was obtained by the defendant No. 1 against a decree of the Small Cause Court Judge at Dacca. The suit was brought by the plaintiff for recovery of the price of a certain statue which he purchased from the defendant No. 1 and the ground on which he based his claim was that when he purchased the statue the defendant No. 1 gave a warranty that the said statue was perfect in every respect that there was no joint or defect in it, nor was it broken in any part thereof. The shop of defendant No. 1 is in Calcutta A part of the price was paid in Calcutta, and the learned Judge of the Court below finds that the property in the statue passed to the plaintiff at the time of the purchase. The defendant No. 1 was asked to send the statue to Dacca by rail and steamer and it was said that the Railway receipt might be sent by value payable post to the plaintiff at Dacca who would pay the balance of the purchase money and the costs on receipt thereof. It was alleged that the package which contained the statue was in good, condition but on opening it, it was founds that portions of the statue were damaged and one part, a limb was joined to the body by a nail and the joint was covered over with plaster. Upon that it seems that correspondence took place between the defendant No. 1 and the plaintiff after which the plaintiff brought this suit against the defendant No. 1—the petitioner before this Court. The Secretary of State for India in Council was also joined as a defendant in the alternative on the supposition that the article might have been damaged during transit. It was found that the damage was not caused during transit and no question before me turns upon that fact. The learned Small Cause Court Judge found that the defendant No. 1 gave the warranty as alleged by the plaintiff, and no question has been addressed to me on that point also. The finding of the learned Small Cause Court Judge in that respect must, therefore, be accepted as correct. The learned Judge also found that the damage to the statute sold was due to its own inherent defect; in other words, that it had been broken and repaired prior to the sale either by the makers or by the defendant firm. Upon that finding he made a decree in favour of the plaintiff to the extent of Rs. 200. He also made an order in the alternative that the defendant No. 1, that is the petitioner before me, if he so chose, might take the statue from the plaintiff on payment of the full price. Nothing turns upon the alternative decree that the learned Judge made.

2. The first ground on which the decree of the learned Judge is attacked is the point of jurisdiction.

3. It is urged that the package in which the statue was sent by the petitioner to Dacca was insured and, as the suit against the Secretary of State who was joined as defendant No. 2 was for insurance money, under the provisions of Article 34 of Sch. II of the Provincial Small Cause Courts Act, it was excluded from the cognizance of the Small Cause Court. With regard to this point, my opinion is that the argument of the petitioner is not sustainable. It was not a suit on a policy of insurance, nor was it a suit of any other nature contemplated by Article 34 of Sch. II of the Provincial Small Cause Courts Act. It was really a suit for damages against the Secretary of State in the alternative for failure to insure safe carriage of the article.

4. The main ground, however, is that the article was delivered and title to the statue passed in Calcutta and as the warranty alleged by the plaintiff was given in Calcutta, a suit for damages or for recovery of the price of the article lies in a Court having jurisdiction over Calcutta and that it does not come within Cl. (c) of section 20 of the CPC. In my opinion that argument also is not sustainable. The suit was for recovery of the price which the plaintiff paid the petitioner for the article which he had purchased. Part of the purchase-money was paid at Dacca and therefore, the Small Cause Court at Dacca, had jurisdiction to entertain it. The question is not effected by the fact within the jurisdiction of which Court the property passed. For example, to take a hypothetical case, if the plaintiff had not paid any money at the time of the purchase but the title to the statue passed at the time of the purchase, and, if the plaintiff had said that he would pay the money at Dacca when the article would be delivered to him there, and if the defendant had delivered the amide there and if, after payment, it was found that the article was not as warranted, the plaintiff might refuse to accept the article and say that he was entitled to recover the money which he had paid to the seller as the pride thereof. In my judgment, it could hardly be said, then, the cause of action did not arise in the place where the purchase-money was paid. The circumstances of this case are similar. A portion of the purchase money was paid at Dacca and, after the payment, the purchaser discovered that the article was not such as warranted by the seller and the claim, therefore, was that the seller was bound to refund the purchase-money which was paid. In these circumstances, in my opinion, the Small Cause Court at Dacca had jurisdiction to entertain the suit.

5. It was then argued that it was not a breach of warranty that a portion of the limb was fastened to the body of the statue by an iron rod or nail, as the plaintiff could not have expected to purchase a marble statue made out of a solid block for Rs. 250. That appears to be so. But if the defendant No. 1 gave the plaintiff a warranty which the lower Court has found he did, he is bound to suffer for that. That question cannot be discussed in revision.

6. There is one other point which was argued on behalf of the petitioner and it is this: The Small Cause Court Judge has made the defendant firm liable for the costs of the Secretary of State. It is argued that it was the plaintiff who made the Secretary of State a defendant and that he ought to have been made responsible for his costs. The learned Judge has not given his reason in detail why he has made the defendant firm liable for the costs of the Secretary of State. But it is pointed out that, in the correspondence between the plaintiff and the defendant No. 1 the latter stated that the article was in very good condition when it was sent and that the damaga must have been caused during transit. The plaintiff was obliged to make the Secretary of State a party defendant on account of that position taken by the petitioner and I think, therefore, that the learned Judge was right in making the petitioner liable for the costs of the Secretary of State.

7. In all these circumstances, the Rule is discharged with costs. I assess the hearing fee at one gold mohur for each of the two sets of opposite parties.

8. Rule discharged.