P L D 1964 (W (PLP)

5. A joined written statement was filed by defendants 1 and 3 and this was adopted by defendant No. 2, namely A. C. Yusuf & Co. These two defendants denied that they had any connection with the two firms, namely M. H. Jusub & Co. and Ashrafi Trading who had taken delivery of the goods. They denied that they had given any assurances as alleged in the plaint or that they had represented that these two concerns were their sister concerns. They also denied that they had undertaken any personal liability in respect of the two contracts in which the aforesaid two firms were the buyers, It was asserted that these two defendants, namely Nos. 1 and 3 had informed the plaintiff that the other three firms were also interested in entering into similar transactions and that is how the plaintiff agreed to ship the goods to them also ; that in so far as these firms did not open the letters of credit, the plaintiff shipped goods to them at his own risk. They admitted that as a friendly gesture they did inform the plaintiff that they would induce these parties to meet their obligation but it was emphatically denied that these defendants took any personal responsibility for payment. The liability in the claim in suit was denied in toto and it was further pleaded that the claim was barred by time.

6. The following issues were framed :‑ (1) Whether the plaintiff's firm is a partnership firm ? If so, whether it is registered? If not, is the suit maintain able ? (2) Whether the defendants or any of them placed an order with the plaintiff from Messrs Uttam Ram & Co ? (3) Whether the establishment of letters of credit for contracts under reference was an essential condition ? (4) Whether the firms of Messrs M. H. Sulaiman & Co. and Messrs M. H. Junali & Co. and Messrs Ashrafi Trading Co. are sister concerns of defendants and whether the defendants so represented it to the plaintiffs, and if so, what is its effect? (5) Whether the defendant No. 1 and/or No. 3 asked the plaintiffs to ship the goods for the aforesaid three firms, without letters of credit and whether the defendants further assured the plaintiffs that they would be responsible for payment and if so, what payment? (6) Whether the defendant No. 3 requested the plaintiff for extension of time for payment and if so, on whose account and what is the effect ? (7) Whether the defendants or any of them undertook the responsibility for the payment of the value, expenses and commission as alleged? (8) Is the claim, if any, barred by limitation? (9) Are the defendants liable and if so for what sum ? (10) General."

7. The main issue upon the merits is issue No. 7 and I shall proceed to deal with it straightaway. Apart from the contracts there is a considerable amount of correspondence between the parties which has been exhibited and the plaintiff Jamnadas Mehta himself gave evidence in the case. He stated that he knew Haji Abdul Shakoor and Ahmad Abdullah since 1950 and had dealings with then before ; that these two persons came to Singapore in the year 1951 and they selected certain Goods and they told him to sign the contract for the purchase of these goods from the firm of Uttam Ram and that he should ship these goods to Karachi and that he would be paid commission upon it. But when the list of the buyers was shown there were three more persons besides Haji Abdul Shakoor and Ahmad Abdullah and that he told them that he did not know these parties whereupon they said that these three were their sister concerns. Then the five contracts, namely Exh. 5 to Exh. 9, were separately made and Haji Abdul Shakoor signed all of them on his behalf and on behalf of the remaining four buyers. These contracts were made on 26‑11‑

51. The rest of his evidence is in support of the allegations in the plaint and it is not necessary to reproduce them. It may however be noted that he did not make any categorical statement that Haji Abdul Shakoor and Ahmad Abdullah had undertaken the personal liability for the payment of the goods shipped to the other three parties. But this was sought to be inferred from the various representations alleged to have been made by these two persons, particularly the fact that they represented that these three firms are the sister concerns of them.

8. Mr. Ali Athar, the learned Advocate and Attorney of the plaintiff, first took up the position that all these five contracts were between the plaintiff and the defendant No. 1 Haji Abdul Shakoor and the defendant No. 3 Ahmad Abdullah and that this was a transaction as from principal to principal and the remaining three parties, namely M. H. Sulaiman & Company, Messrs Jusub & Company and Ashrafi Trading were merely names used by the aforesaid two defendants, the transactions in reality being only between them and the plaintiff with regard to each one of these five contracts. This position was completely untenable in view of the written contracts themselves and from the mass of correspon dence which passed between the parties when Messrs Ashrafi Trading and M. H. Jusub & Company did not take delivery of the goods shipped to them. The existence of these two concerns has been established by further evidence led in this case and Exhs. 69 and 69‑1 are certified copies from the register of Registrar of Firms in respect, of these two firms and these clearly show that neither Haji Abul Shakoor nor Ahmad Abdullah had anything to do with these two firms. But even if I did not take these two documents into consideration there is still sufficient evidence to show that they were two separate and distinct firms and the contract was entered into in their names directly. The two contracts of the two defaulting firms are Exhs. 5 and

6. In both these the buyers are expressly stated to be Messrs Ashrafi Trading, Karachi (Exh. 5) and Messrs M. H. Jusub & Company (Exh. 6). The written contract is therefore clearly between the plaintiff and these two firms. Haji Abdul Shakoor has signed "for Ashrafi Trading" in Exh. 5 and "for M. H. Jusub & Company" in Exh.

6. On the face of these contracts it was futile to argue that the transaction between Abdul Shakoor and Ahmad Abdullah on the one hand and the plaintiff on the other in respect of these two contracts was as from principal to principal. Mr. Ali Athar then contended that in any case these two defendants, namely Nos. 1 and 3, had bound themselves personally in respect of these two contracts as well and it was upon their so doing that the plaintiff shipped these goods. With regard to the allegation that these two defendants had bound themselves personally, the two contracts, Exhs. 5 and 6, themselves belie this position and there is not a single suggestion in the very large number of letters written by the plaintiff such as Exhs. 11, 16, 22, 24, 26, 28 etc., to the effect that these two defendants had bound themselves personally for payment in respect of the goods of the two con tracts of Ashrafi Trading and M. H. Jusub & Company. There is a large number of letters written by Ahmad Abdullah on the form of A. C. Yusouf & Co. and in this the position has con sistently been taken that he and Abdul Sbakoor had tried to persuade these two firms to meet their obligation but they had failed because of the crisis in the market. In none of these letters the plaintiff replied by saying that the liability was theirs and not of Jusub & Company and/or Ashrafi Trading. This position was taken for the first time in the lawyer's notice before the filing of the suit. I, therefore, reject the contention that Haji Abdul Shakoor or Ahmad Abdullah had undertaken any personal responsibility in respect of the fulfilment of these two contracts. It may be mentioned that there was a third contract which was with Messrs M. H. Sulaiman & Co. and this was also signed by Haji Abdul Shakoor. This firm took delivery of the goods and paid for it.

9. There is another aspect of the case and it is this. The contract clearly shows that Haji Abdul Shakoor had signed for Ashrafi Trading and M. H. Jusub & Company. The contract, therefore, established that he was acting as their agent. In the absence of a contract to the contrary, an agent cannot be sued nor can be held liable personally. This is provided by section 230 of the Contract Act. In view of my finding that there was no such contract to the contrary it must follow that no liability under these two contracts can be fasten upon the agent. When this position was pointed out to Mr. Ali Athar he half‑heartedly argued that sub‑clause (1) of section 230 of the Contract Act would be attracted in this case which provides for a presumption of a contract to the contrary where the contract is made by an agent for a sale or purchase of the goods for a merchant residents abroad. This clause is clearly inapplicable to the present case,/A because in this the agent and the principals, namely the buyers were both resident abroad. My finding, therefore, on issue No. 7 is in the negative.

10. In view of my finding on issue No. 7 it would be superfluous to give separate findings on issues Nos. 2, 3, 4, 5 and

6. On issue No. I there is the evidence of the plaintiff that he is the proprietor of M. Jamnadas & Company. This has not been contradicted and my finding, therefore, on this issue is that the question of registration or the defect for want of it doesn't arise.

11. The next question is of limitation which is the subject- matter of issue No.

8. The contract was executed on 22nd December 1951, and payment was provided against shipping documents. It would appear from the correspondence such as Exhs. 12, 14, 15 and 16 that the bills for payment had been presented to Messrs Ashrafi Trading and M. H. Jusub & Co., some time in March 1952, and they failed to pay. They were, therefore, in breach and the cause of action had arisen and time would begin to run as from March 1952. This suit was instituted on 18th February 1956. Article 115 of the Limitation Act applies and the suit would thus be barred by time. Mr. Ali Athar, however, contended that his right to claim damages arose from the re‑sale. I cannot agree. The cause of action arises from the breach of contract and this happened when the defendant failed to pay and take delivery of the goods. The ascertainment of the actual amount of damages from the re‑sale does not give a fresh start of limitation. Ascertainment of damages must be distinguished from the breach of contract and it is the latter which provides the cause of action. It was so held in the case of Soundararajan & Company in the Indian jurisdiction and reported in A I R 1960 Mad.

480. In fact, if the claim is based solely upon the re‑sale there is considerable force in the argument of Mr. Ramchandani that in so far as no notice of re‑sale was given; the claim must fail on that account alone; But even if the date of resale is to be taken as the starting point, the suit would still be barred by time, because it would appear from the plaintiff's own document, Exh. 64/2, that the goods had been sold before 18‑2‑

53. Mr. Ali Athar lastly urged that Article 120 of the Limitation Act should apply to the present case. This contention on the face of it is without any substance. That article is a residuary article and it cannot be attracted when there is a specific Article 1151C provided for a case as the one in hand. My finding, therefore, on issue No. 8 is that the suit is barred by limitation.

2. In view of my findings I dismiss the plaintiff's suit. In the circumstances of the case, however, I will make no order as to costs. S. Q./K. B. A. Suit dismissed.