S. Kunjan Pillai v. Peirce Leslie And Co. — 1957 DIGILAW 101 (KER)

Judgment :- 1. This is an appeal by the unsuccessful plaintiff against the decree and judgment dated 30th April 1952 in O.S. No. 2/51 on the file of the court of the Subordinate Judge, Fort Cochin substantially dismissing the plaintiff's claim. 2. The suit out of which this appeal arises was commenced by the plaintiff for recovery from the defendant of a sum of Rs. 9538, stated to be the balance of the price of coir yarn supplied by the plaintiff to the defendant company. The case of the plaintiff was that in the usual course of business, the defendant received deposits of yarn from dealers in that commodity and granted loans as against the deposits on the understanding that the yarn might be taken on sale as and when the dealer and the defendant mutually agreed thereto in the light of the then prevailing price. It was stated that the plaintiff, a dealer in such coir yarn, deposited with the defendant 68 candies of coir yarn on 22nd May 1950 & 26th May 1950 and received a loan of Rs. 17700/- as against the said deposits on the understanding mentioned above. On 4.8.1950, the plaintiff is stated to have offered to sell to the defendant-company the coir yarn at the then current market rate of Rs. 380/- per candy and take the balance amount after deducting the loan. But this offer was not accepted by the company on the ground that the said yarn had already been sold to them on 30.6.50 by the plaintiff's representative, Sri. K.C. Ayyappan Pillai, at Rs. 335 per candy. The plaintiff's further case is that Sri Ayyappan Pillai is not his agent and also that Ayyappan Pillai had not in fact, agreed to any sale on his behalf. In view of the defendant's action in refusing to hand over the goods as per the plaintiff's demand, the plaintiff contended that the defendants are guilty of wrongful conversion and that he has incurred damages which is assessed in the sum of Rs. 9,538 on the basis of Rs. 500 a candy, being the highest price in September 1950 or in the alternative in the sum of Rs. 7,791 on the basis of Rs. 468 per candy being the price that prevailed on 1.12.1950, the date of wrongful conversion of the goods by the defendant. 3. 9,538 on the basis of Rs. 500 a candy, being the highest price in September 1950 or in the alternative in the sum of Rs. 7,791 on the basis of Rs. 468 per candy being the price that prevailed on 1.12.1950, the date of wrongful conversion of the goods by the defendant. 3. The substantial contention raised by the defendant-respondent was that the dealers who sell coir yarn to the defendant are allowed to land yarn and the defendant gives advances against such yarn on the specific understanding that in those cases the defendant has the right to purchase the coir yarn as and when required by the defendant at the prevailing market rate to be agreed upon by the defendant and the dealer. The defendant also contended that in accordance with such understanding, K.C. Ayyappan Pillai, agent of the plaintiff landed yarn on the dates mentioned in the plaint and got an advance of Rs. 17700. The said Ayyappan Pillai on behalf of the plaintiff, along with the other dealers, agreed on 30th June 1950 to the defendant's purchasing the plaint goods at the then prevailing rate of Rs. 335 per candy with the usual variations for higher and lower rates. In accordance with the agreements so arrived at, the defendant exercised the option vested in them and has accordingly purchased the goods on 30th June 1950 from the plaintiff and the plaintiff has no further rights as against the defendant. The defendant, however, admitted that only a sum of Rs. 549 was due to the plaintiff as per account submitted to the plaintiff on 1st December 1950 (Vide Para.3, 5, 9 & 10 of written statement). 4. The defendant, however, admitted that only a sum of Rs. 549 was due to the plaintiff as per account submitted to the plaintiff on 1st December 1950 (Vide Para.3, 5, 9 & 10 of written statement). 4. The learned Subordinate Judge has held on issue No.1 that the defendant-company was holding the plaint consignment of coir yarn in accordance with the usual practice prevailing in such cases on the following terms: (1) The dealers are allowed to land and deposit their coir yarn with the defendant; (2) The defendant-company pays the dealer a substantial advance without interest and without charging any godown rent; (3) Processings will be commenced soon after landing; (4) In return, the defendant-company has the right to take over the goods as and when they require them at the then prevailing market rate with the agreement of the dealer; and (5) The dealers have no right to refuse to sell when the defendant exercises its option to purchase. In arriving at this conclusion, the learned Subordinate Judge has relied upon the evidence of the defence witnesses and in particular, on the evidence of Dw. 4 the officer-in-charge of the Coir Yarn Department of the defendant, and Dw. 5 the Manager of the defendant-company. 5. On the question of the agency of Ayyappan Pillai and the sale stated to have been made by him on behalf of the Plaintiff to the defendant, the trial court has also accepted the evidence of the defence witnesses Dws.1 to 5 and held that Sri. K.C. Ayyappan Pillai, Pw.1 was acting as the agent of the plaintiff in 1950 and that Pw.1 as the representative of the plaintiff did agree to a sale of the plaintiff's goods on 30.6.1950 to the defendant at Rs. 335 a candy, which was the then prevailing market rate. Inasmuch as the defendant admitted its liability to the plaintiff in the sum of Rs. 549, the learned judge granted a decree to the plaintiff for this admitted amount and otherwise dismissed the suit with costs. 6. 335 a candy, which was the then prevailing market rate. Inasmuch as the defendant admitted its liability to the plaintiff in the sum of Rs. 549, the learned judge granted a decree to the plaintiff for this admitted amount and otherwise dismissed the suit with costs. 6. In appeal before us, the learned counsel for the plaintiff-appellant has attacked the findings of the learned Subordinate Judge and has contended that, (a) K.C. Ayyappan Pillai, Pw.1 was not the agent of the plaintiff at the material time; (b) The agreement of sale by Ayyappan Pillai, relied upon by the defendant on 30.6.1950 is not true; and (c) In consequence, the defendant is guilty of wrongful conversion of the plaintiff's goods when they refused to deliver the goods on demand by the plaintiff and as such, the defendant is liable to pay the damages claimed in the suit. 7. It will be seen that the main questions for our consideration viz., the agency of Pw.1 and his sale on behalf of the plaintiff on 30.6.1950, are essentially questions of fact, a decision of which mainly depends upon the appreciation of the oral evidence adduced in the case. In this connection, it is useful to bear in mind the following observations of their Lordships of the Supreme Court in Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh and others (1950 SCJ 583 at 585): AIR 1951 SC 120 regarding the duty of an appellate court in such circumstances: "The appellate court has got to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him and of observing the manner in which they deposed in court. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact". Again, at page 587, their Lordships, further observe as follows; "The duty of the appellate court in such cases is to see whether the evidence taken as a whole, can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court outweighs such findings". Applying these principles, we are not satisfied that this is a case which warrants any interference by us with the findings of fact arrived at by the trial court. 8. On the question of the agency of Pw.1 and the sale by him for plaintiff on 30.6.1950, apart from the oral evidence of Dws.1, 2,4 and 5 in the case, there is also the evidence furnished by Ext. B1 dated 28.11.1949. That is a letter addressed by the plaintiff to the defendant-company in which it is stated that Sri. K.C. Ayyappan Pillai is authorised to sell coir yarn on his behalf and also to do certain other acts. It is not the case of the plaintiff that this letter has in any way been cancelled or withdrawn by him at any subsequent date. In fact, Ayyappan Pillai as Pw.1 says that there is no record to show that he ceased to be the plaintiff's agent. The nature of the dealings as between the parties has been set out by the plaintiff himself in Para.2 of the plaint and the defendant in Para.9 and 10 of the Written Statement states that on 30th June, 1950 Sri Ayyappan Pillai on behalf of the plaintiff agreed, along with the other dealers, to a sale of the plaintiff's goods to the defendant at Rs. 335 per candy, the then prevailing market rate and that the defendant has on that date exercised its option to purchase the goods. 9. The learned trial judge has accepted the evidence of Dws.1 to 5 regarding the nature of the transactions between the parties and he has also accepted the evidence of Dws.1, 2, 4 and 5 regarding the agreement entered into by Sri. K.C. Ayyappan Pillai on behalf of the plaintiff on 30.6.1950. We have also been taken through the entire evidence, both oral and documentary by the learned counsel for the appellant. 10. K.C. Ayyappan Pillai on behalf of the plaintiff on 30.6.1950. We have also been taken through the entire evidence, both oral and documentary by the learned counsel for the appellant. 10. There were two conflicting versions placed before the lower court and each side attempted to substantiate its case by verbal testimony of the witnesses. The learned judge had to decide which of the two versions was correct and he accepted the story of the defendant and rejected that of the plaintiff. We ourselves have no hesitation in accepting the findings arrived at by the lower court on the question of agency and the sale relied upon by the defendant on 30.6.1950. The learned judge was fully justified in rejecting the testimony of the plaintiff and his witness Pw.1. 11. The learned counsel for the appellant, however, argued that inasmuch as the contract of sale Ext. B7 dated 30.6.1950 has not been signed by Ayyappan Pillai, the agreement pleaded by the defendant cannot be true. But this has been satisfactorily explained by Dw. 4 who was in charge of the Coir Yarn Department of the defendant company as follows: "When I gave Ext. B7 to Ayyappan Pilla to sign, he said he would come again and sign. But he did not come". Further, there is the positive evidence of the defence-witnesses, Dws.1, 2, 4 and 5 to show that the agreement was entered into by Ayyappan Pillai on behalf of the plaintiff on 30.6.1950. Further, Ext. B11, the account book showing the purchase statements of the defendants for the year 1949-50 clearly shows that on 30.6.1950 the defendant has taken over the plaint-consignment and no attack has been made by the plaintiff on this document and this conclusively shows that the agreement and sale pleaded by the defendant is true. Further, there is also evidence to show that immediately after 30.6.1950 there was a fall in the market-rate of coir and when the defendant says that the company has purchased at a higher rate on 30.6.1950, that case will have to be accepted. Apart from this, there is also the circumstance that on the very date of Ext. B2, 4.8.1950, when the plaintiffs appeared to offer to sell the goods, the defendant by his letter Ext. Al has categorically stated that there has been already a sale on 30.6.1950 by the plaintiff's representative Ayyappan Pillai. Apart from this, there is also the circumstance that on the very date of Ext. B2, 4.8.1950, when the plaintiffs appeared to offer to sell the goods, the defendant by his letter Ext. Al has categorically stated that there has been already a sale on 30.6.1950 by the plaintiff's representative Ayyappan Pillai. Equally, the reliance placed by the learned counsel for the appellant on Ext. B5 and B6 to show that Pw.1 could not have been the plaintiff's agent in 1950 cannot also help the plaintiff, because it is shown by Ext. B10 that during the period when Ayyappan Pillai is admitted to be his agent, the plaintiff himself has signed a receipt Ext. B10 dated 21.12.1949. 12. For all the reasons stated above, we are of opinion that the conclusions arrived at by the learned Subordinate Judge on the question of agency of Ayyappan Pilla and his sale to the defendant of the plaint goods on 30.6.1950 on behalf of plaintiff, are correct and we confirm those findings. 13. On the finding that there was a sale on 30.6.1950 in favour of the defendant of the plaintiff's goods, it follows that the defendant is not guilty of any wrongful conversion and the defendant-company is not liable to pay any damages to the plaintiff. The decisions relied upon by the learned counsel for the Appellant in Sinnom Chetty and Another v. G.S. Alagiri Ayyar and others (AIR 1924 Mad. 438 F.B.), (Tadi) Sarreddi and another v. Chelamacherla Brahmayya AIR 1928 Mad. 1152, Sachs v. Niklos and others (1948-1-All England Reports, 67) and Munro v. Willmott (1948-2-All England Reports, 983) do not have any bearing on the questions that arise for consideration in this case. 14. We may also observe that the goods, coir yarn, which are alleged to have been converted, are ordinary goods of merchandise and with regard to this there is no allegation before us, much less proof, that similar goods or goods of even similar quality were not obtainable or obtainable in sufficient quantity at the relevant time and place. Even applying the principles laid down in the decisions cited by the learned counsel for the respondents, in our opinion, the basis of the claim for damages is not legally supportable. 15. In the result, the decree and judgment of the learned Subordinate Judge are confirmed and this appeal dismissed with costs. Dismissed.