K C NGOWDA AND BROS Vs. MOLAKRAM TEKCHAND AND SONS

JUDGEMENT

(1.) The plaintiffs in the suit are the appellants before us. The appeal arises out of a suit instituted by the plaintiffs for the recovery of a sum of Rs. 3900/- being the advance paid and damages due on a contract for sale of 19 bales of yarn to the plaintiffs by the defendants. The facts, necessary to be stated for the purpose of this appeal, are as follows : On 15th February 1951 the plaintiffs entered into a contract with the defendants whereby the defendants agreed to sell to the plaintiffs 19 bales of yarn of different Mills as mentioned in the contract, that is to say, 7 bales (Murugan) of 200 lbs. each, 7 bales (Kumaran) of 200 lbs. each, 4 bates (Karthakeya) of 200 lbs. each and 1 bale (Jayalakshmi) of 200 lbs. It was stipulated in the said contract that the delivery was to be in the first week of March 1951. The other material term of the contract was that the rate at which the said goods were to be sold was Rs. 87-8-0 (Rupees Eighty-seven and annas eight only) per 10 lbs. nett F.O.R. Dodballapur. Under the said contract the plaintiffs were to pay Rs. 100/-per bale by way of advance. It is not disputed that the said advance of Rs. 1900/- was duly paid by the plaintiffs. The plaintiff's case was that according to the commercial usage in respect of such a transaction and by the terms of the contract time was of the essence of the contract. The plaintiffs' further case was that the bales as a matter of fact never arrived at Dodballapur in the first week of March 1951 as agreed upon that on 11th March 1941, 14 bales of yarn arrived at Dodballapur, out of which 4 bales of 400 lbs. were of Cambodia Mills, 3 bales of 200 lbs. were of Murugan Mills, 5 bales of 200 lbs. were of Kumaran Mills, 1 bale of 200 lbs. was of S.R.V. Mills and 1 bale of 400 lbs. was of Karthakeya Mills. According to the plaintiffs the goods sent were not of the description contracted for. The plaintiffs' case therefore was that the defendants had deliberately broken the contract and were liable to repay the advance amount of Rs. 1900/- together with Rs. 2000/- being the damages suffered by the plaintiffs in this behalf. The plaintiffs in the suit claimed a decree for the said sum of Rs. 3900/- together with costs and interests.

(2.) The defendants in their written statement inter alia stated that no particular date was specified for delivery in the contract and the fact that delivery was to be by the first week of March shows that time was not considered to be of the essence of the contract. The defendants' case as made in their written statement also was that the material term of the contract was that staple fibre yarn of 40 counts of one or the other of the Coimbatore Milis had to be despatched and that the description as to the particular Mills and the quantity contained in each bale was not considered to be material and that what was material was that the total quantity of yarn to be sent was fixed to be at 3800 lbs. According to the defendants' case the place of delivery was understood to be the defendants' ex godown and the rate fixed was F.O.R. Dodballapur meaning thereby that the goods' freight was to be paid by the defendants. The defendants also denied that they were in any manner responsible for the breach of the contract; their case was that the plaintiffs were guilty of the breach.

(3.) These were the respective cases of the parties as made in their pleadings. The trial Court held in favour of the plaintiffs and decreed the suit. The lower appellate Court, in appeal, reversed the said decision. The present appeal has been filed by the plaintiffs against the decision of ,the lower appellate Court.