Chagla, J. -
(1.)THIS is an appeal from the judgment of Mr. Justice Coyajee. On June 26, 1942, the defendants sold to the plaintiffs 33 bales of piecegoods or 36 bales, three bales more according to the option of the defendants. In all delivery was given of 22 bales between July 3, and August 21, 1942. The defendants, according to the plaintiffs, failed to give delivery of the remaining 11 bales, and the plaintiffs have fled this suit for damages for non-delivery of the 11 bales. Mr. Justice Coyajee who tried the suit held that the defendants had committed a breach of the contract and that they had failed to give delivery of the 11 bales; and he referred the suit to the Commissioner to assess the damages on the basis that the breach had taken place on November 12, 1942, and that damages should be assessed at the difference between the market rate prevailing on that date and the contract rate. The plaintiffs' case was that they had made various demands for delivery. They proved two oral demands in October, 1942, and they also proved that a tender was made for the remaining eleven bales on November 12, 1942, which tender was refused by the defendants. On this evidence the learned Judge came to the conclusion that the contract had been broken on November 12, 1942.
(2.)IN this appeal the first question that arises is whether there was any breach of the contract on the part of the defendants. Under Section 35 of the INdian Sale of Goods Act, 1930, it is obligatory upon the buyer to apply for delivery and the seller is not bound to deliver the goods unless there is an application for delivery on the part of the buyer. Mr. Setalvad has contended that in this case there was no application for delivery by the buyer within reasonable time and, therefore, there was no breach on the part of the seller as the seller was not bound to deliver the remaining 11 bales.
The terms of the contract have been reduced to writing; and we may point out, with respect to the learned Judge below, that he has fallen into error in admitting parole evidence with regard to negotiations antecedent to the contract and also with regard to the subsequent conduct of the parties. Once the parties reduce the terms of their contract into writing, the Court can only look at the writing alone in order to construe what the terms of the contract were. It is hardly necessary to say that what the terms of the contract between the parties were cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did -subsequent to the contract. Now on the construction of the contract two points have been placed before us; and as far as we can see, whatever view we may take as to the construction does not materially affect the question that we have got to decide. The contract sets out various particulars in different columns. It first mentions the number of bales and then the quality of the bales; and then under the heading "delivery" it mentions various places, Indore, Ujjaa and Bombay; and then the prices of various bales are mentioned. At the foot of the contract appears: Mill Delivery, Shipment Ready, Less 3/4% per cent discount and Re. 1 per bale, Railway Receipt through Bank. Now Mr. Setalvad has contended that on a true construction of, this contract the goods were to be delivered at the various places mentioned in the contract at the mills. Mr. Setalvad argues that the column "delivery" makes it clear that the place of delivery was the different places mentioned under that column and delivery is further localised by stating; that not only is it to be at the particular place but at the mill itself. On the other hand, Sir Jamshedji Kanga contends that when you look at all the particulars of the contract carefully, it is clear that the place of delivery of the goods was at Calcutta. Sir Jamshedji particularly emphasizes the expression "shipment Ready" in the contract. It is common ground that the goods that were sold were not forward goods but ready goods. But the expression "shipment" has to be carefully noticed because, if the buyer had to take delivery at the various places mentioned in the contract, there was no need to state in the contract the expression "shipment". "shipment" is not used in its proper etymological sense, but it can only mean in this case "despatch" or "rail" and the contract undoubtedly casts an obligation upon the seller to despatch or rail the goods. Further it is to be noted that payment is to be made by the buyer through a bank when he obtains the railway receipt. If the obligation was upon the buyer's take delivery at the various places mentioned in the contract, it is difficult to understand how lie could pay for these goods against railway receipts through a bank in Calcutta. The various places mentioned under the column "delivery", coupled with the phrase "mill Delivery", seem to indicate that the prices fixed are ex-mill and that the buyer is liable to pay for extra charges incurred for despatching the goods from the various places to Calcutta. "we do not agree with Mr. Setalvad that the expression R/r through bank merely deals with the mode of payment. This provision has got to be taken into consideration with all the other provisions in the contract in order to arrive at a true conclusion as to whether under the contract goods were to be delivered at Calcutta or at the various places mentioned in the contract. We therefore agree with the learned Judge who took the view that under the contract the delivery of the goods had to be made at Calcutta.
Now on the question whether the buyer made an application for delivery not not, there is evidence on the record which has been accepted by the learned Judge. Murlidhar Anantram, the munim of the plaintiff, gave evidence and he stated that the contract was reduced to writing at Calcutta and duly signed and after the contract was signed, he told the representative of the defendants that he had bought ready goods and therefore early delivery should be given of these goods and the representative of the defendants agreed that a quick and early delivery would be given; and further on, in cross-examination. , he repeated practically the same evidence by saying that he, demanded that as the contract was for ready goods they should be delivered immediately and the defendants' representative said that they would be so delivered as and when the railway waggons were made available. Mr. Setalvad has made a grievance of the fact that in the plaint the fact that an application for delivery was made on June 26, 1942, has not been clearly set out. It is true that when a buyer sues a seller for damages for non-delivery, application for delivery on his part is a part of the cause of action and must be explicitly stated, but when we turn to paragraph 3 of the plaint, we do find an averment that the defendants had failed to give delivery of the remaining goods in spite of the repeated requests made in that behalf by the plaintiffs, in our opinion this averment, although perhaps not as specific as one might have desired, is sufficiently clear to cover the application for delivery relied upon by the plaintiff's at the trial on the date on which the contract was made, namely June 26, 1942.
(3.)WE might point out that we do not agree with the contention of Sir Jamshedji Kanga that when goods which are to be delivered are ready goods, no application for delivery is necessary on the part of the buyer tinder Section 35 of the Indian Sale of Goods Act. Section 35 makes 110 distinction between the sale of ready goods and of forward goods; and the Privy Council in Sivayya v. Ranganayakulu (1935) 37 Bom. L. R. 538, P. C. has laid down that the buyer can only be relieved from his statutory obligation to apply for delivery by an express stipulation to the contrary.
Assuming that there was an application for delivery on the part of the buyer on June 26, 1942, it is not disputed that the defendants failed to make delivery of the eleven bales and thereby committed a breach of the contract. What we have next to consider is: what is the date of the breach of the contract? and what is the due date on which the contract should have been performed ? Now under this contract, as I have pointed out, no time is fixed for delivery of the goods sold; and under Section 36, Sub-clause (2), of the Indian Sale of Goods Act, where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. Therefore the law implies a reasonable time within which the contract is to be performed when the contract itself is silent as to the time of performance. In our opinion once a reasonable time is implied within the meaning of Section 36, Sub-clause (2)3 the contract becomes a contract to be performed at, a fixed time as much as if the parties themselves have fixed a specific time. In the one case it is the act of parties which determines the time when the contract is to be performed; in the other case it is by implication of law that the time is determined.