BACHAWAT, J. : - (1.) THE following judgment of the court was delivered by
(2.) THE dispute arises out of a contract between the appellants and the respondent entered into on 13/11/1951. THE terms of this contract were recorded in writing in the form of a letter written by the respondent to appellant No. 1 and set out below: `Messrs. P.S.N.S. Ambalavana Chettiar and Company Ltd., 260, Angappa Naicken Street, Madras. Dear Sirs, We confirm having purchased from you and the Madras Paper Marketing Company, Madras, 500 tons of Russian Newsprint as per the following description :-About.70 per cent in reels of 34 inches width. `15 per cent in reels of 22 inches width. `15 per cent in reels of 36 inches width. at annas 9 per lb. Ex-Wharf Bombay duty, etc., paid. THE buyers are to take delivery within four days of the offer of delivery. Any wharfage, etc., up to the fourth day of the offer of delivery will be on seller's account and thereafter on buyer's account. We have also sold you about 415 tons of Russian newsprint in sheets in size of about 30`X 42` (760 mm X 1085 mm) ex-godown, Madras at Re. 0-9-6 per lb. We will keep the stock of sheets in our godown on your account free of rent. We shall advance you moneys against this newsprint at annas 8 per lb. This advance will carry interest at 5 per cent per annum. We will also charge you the exact amount of insurance which we pay to our Insurance Company against the goods. We shall pay Rs. 5,60,000.00 to your Bankers in Bombay and take delivery of the 500 tons of newsprint from the harbour in Bombay. Accounts wilt be made on the basis of the above arrangement and whatever one party is liable to pay to the other will be adjusted subsequently. Thanking you, Yours faithfully, For Express Newspapers Limited Director.` THE document shows that the respondent agreed to buy from the appellants 500 tons of Russian newsprint in reels at 9 annas per lb., ex-wharf Bombay, and to take delivery of the goods on payment of Rs. 5,60,000.00. At the same time, the appellants agreed to buy from the respondent 415 tons of Russian newsprint in sheets then lying in a godown in Madras at 9 annas 6 pies per lb. upon the term that the appellants would pay the insurance charge and also interest at 5 per cent per annum on an amount equivalent to the price of the goods calculated at 8 annas per lb. THE understanding was that the appellants would within a reasonable time take delivery of the goods bought by them in instalments and the accounts would be finally adjusted on the completion the deliveries. It may be mentioned that appellant No. 2 carried on business under the name and style of Madras Paper Marketing Company. On 26/11/1951, the parties orally agreed that instead of 500 tons the respondent would buy 300 tons of newsprint in reels and that instead of 415 'tons the appellants would buy 300 tons of newsprint in sheets and the terms of the contract dated 13/11/1951 would stand varied accordingly. On 5/12/1951, the respondent took delivery of 300 tons of newsprint in reels on payment of Rs. 3,18,706-9-10 and a sum of Rs. 57,816-13-2 remained due to the appellants on account of the price of these goods. From 29/11/1951 up to 27/02/1952, the appellants took delivery of 122324 lbs. of newsprint in sheets on payment of.Rs. 63,032-15-9 to the respondent. Subsequently, the appellants refused to take 'delivery of the balance 547501 lbs. of newsprint in sheets. Counsel for the parties agreed before us that 29/03/1952 was the date when the appellants repudiated the contract. On 21/04/1952 after giving notice to the appellants the respondent resold the balance goods to one G.R. Lala at 61/2 annas per lb.
(3.) ON 18/04/1952, the appellants filed in the High court of Madras C.S. No. 175 of 1952 claiming from the respondent Rs. 57,816-13-2 on account of the balance price of 300 tons of newsprint in reels and interest thereon. The respondent admitted the claim for the balance price. ON 30/07/1952, the respondent filed in the High court of Madras C.S. No. 262 of 1952 claiming a decree for Rs. 62,266-13-2 on account of the balance price of 122324 lbs., the deficiency 'on resale of 547501 lbs. of the newsprint in sheets, interest and insurance charges after setting off the sum of Rs. 57,816-13-2 due to the appellants. The principal defence of the appellants was that the contract with regard to 415 tons of newsprint in sheets was cancelled in November, 1951 and that appellant No. 2 was not a party to this contract. The appellants also denied the factum and validity of the resale. The two suits were tried. by Rajagopala Ayyangar, J. He dismissed C.S. No. 175 of 1952 and decreed C.S. No. 262 of 1952. From these two decrees, the appellants filed two appeals in the High court of Madras. A division bench of the High court dismissed the two appeals. The present appeals have been filed on certificates granted by the High court. The two courts concurrently found that (1 ) appellant No. was a party to the contract of purchase of 415 tons of newsprint in sheets, (2) on 26/11/1951 the parties orally agreed that instead of 415 tons the appellants would buy 300 tons of the newsprint and (3) there was no cancellation of the contract as alleged by the appellants. These findings are not challenged. The two courts concurrently found that the resale held on 21/04/1952 was genuine and was effected at a proper price on due notice and after proper advertisement. Mr. Gupte attempted to challenge these findings, but we see no reason to interfere with them. The principal argument advanced by Mr. Gupte was that the property in the goods resold on 21/04/1952 had not passed to the appellants and the resale was consequently invalid. We are inclined to accept this argument.;