TMI Blog1957 (1) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff, H. J. Leach, was employed during the years 1933 to 1935 in the Bombay branch of the said Company. Subsequent thereto, the Company closed its Bombay branch, and eventually wound up its Calcutta office as well, and thereafter its business was taken over firstly by Ewing and Company and then by the defendants. After he left the service of Maitland Craig Lubricants Ltd., Mr. Leach started business as seller of lubricants on his own account and was importing them through the defendants. On June 6, 1941, they entered into an agreement, Ex. A, under which Mr. Leach was given an exclusive right to sell lubricants of the make of Maitland Craig Lubricants Ltd., within the limits of Bombay Presidency, Central Provinces, Rajputana and such parts of Central India and Hyderabad as might be determined by the defendants. The agreement was to continue for a period of five years unless sooner determined in the manner hereunder - provided. Clause 14 of the agreement runs as follows: Notwithstanding anything hereinbefore contained this agreement shall be terminable by either of the parties hereto upon giving to the other three calendar months previous notice in writing expiring at an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreement dated June 6, 1941, on which the suit was based, the title to the goods imported by the defendants vested in them, and that it would pass to the plaintiffs only when the defendants endorsed the shipping documents in their favour, and that as that had not been done, the claim for damages on the basis of conversion was misconceived. They accordingly allowed the appeal, and dismissed the suit. Now, the contention of the appellants before us is that on the facts proved, they were entitled to damages on the basis of conversion. There is no dispute as to the position in law. Before the plaintiffs can maintain an action in trover, they must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them. If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants, passed to them in accordance with the provisions of the Sale of Goods Act. If, however, the defendants imported the goods as agents of the plaintiffs, then the title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that the defendants would themselves supply to the Indian Stores Department all their requirements of lubricants within the territory allotted to the second plaintiff, who was to act as their agent in clearing the goods and delivering them to the authorities. And for this, the second plaintiff was to be paid a commission. It is clear that the agreement read as a whole is a composite one consisting of two distinct matters. So far as cl. 4 is concerned, the second plaintiff was merely an agent of the defendants. As regards the other clauses, the true relationship is, as stated in cl. 13, that the second plaintiff was purchaser of the goods from the defendants, and the conditions relating to the minimum price at which they could be sold and the marking of the goods with the name of Maitland Craig Lubricants Ltd. were only intended to protect their trade interests but that once the shipping document were endorsed by the defendants to the second plaintiff, he became the owner of those goods. The object of the insurance clause was obviously to safeguard the interests of the defendants with reference to the balance price payable by the second plaintiff. In this case, we are not conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price fixed by them, under the licence system the price payable to them was only what they themselves had to pay to the American sellers with an addition by way of commission on the transaction. Now, the argument of the appellants is that as they were the persons entitled to import the goods under the licence granted to them, in importing them on their requisition the defendants must be held -to have acted for them, and that the relationship between them was no longer one of seller and purchaser under Ex. A but of agent and principal. To this, the answer of Mr. Banaji, learned counsel for the respondents, was twofold. He contended firstly that in applying for and obtaining the licence in his own name, the second plaintiff was merely acting as the agent of the defendants, and secondly that the present contention was not raised in the plaint and was, therefore, not open to the appellants. On the first contention he referred us to the correspondence which passed between the parties at the relevant period. On September 5, 1941, the defendants wrote to the second plaintiff to send particulars of certain shipments consigned to him so that they could include them in their application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs, and there could be no question's surprise. Under the circumstances, if the rights of the parties had to be determined on the basis of the licence system, we would have hesitated to non-suit the appellants merely on the ground that the effect of that system had not been expressly stated in the plaint. But then, the licence system itself came to an end in March- April, 1942, and was replaced by what is known as Lease and Lend scheme. It was under this scheme that the goods which form the subjectmatter of this litigation were imported, and we have therefore to examine what the rights of the parties are with reference to the incidents of that scheme taken along with Ex. A, which is admitted by the appellants to have been in force. This scheme was introduced by the Government of India as a war measure to facilitate the import of certain essential goods and to conserve them for the effective prosecution of the war. Oil and lubricants were among the goods which were controlled under this scheme. Under it, the Government prohibited the direct import of oil and lubricants from America through private agencies, whether individuals, firms or companies and took upon its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Mr. Leach makes it clear that this had not been done, as regards the shipments with which the suit is con- cerned. This is what he says in his deposition. The goods were shipped all to the order of the Government of India Separate documents were drawn up in respect of the consignments which were to be supplied to each of the trader according to his requirement submitted to Government. The traders who submitted their requirements cleared the goods by paying the amount of the bills.... The Government did not make any allocation to me. I depended on the defendants for obtaining my requirements from the Government. I did not make any cash deposit as required of the dealer. 1 made no deposit with the Government in respect of the quantity which I wanted. The entire deposit was made with the Government by the defendants even in respect of my requirements... The defendants endorsed over the documents in my favour for goods which were meant for me... Excepting for the admitted portions the documents for remaining part of PL. 1004 to 1007 were not handed over to me or endorsed in my favour, except to the extent to which the goods were delivered, The evidence of Sir John Burder for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The plaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated June 13, 1945. What they claim is only damages for non-delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Ex. A, a claim based on Cl. 14 thereof cannot be said to be foreign to the scope of the suit. Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods. It is no doubt, tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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