MADINA RICE MILLS Vs. VSAMPANGIRMIAH

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for damages for breach of contract. The contract is in writing marked Ex. A dated 2-10-1945 and signed by the parties. The terms of the contract arc expressed thus : "Quality:- Ground-nut oil. Quantity- 1001 one thousand and one maunds only. Rate 8-8-0 Rupees per maund of 23 Ibs. Ex. Mills. Time of delivery -- end of October 1945 Option - "Nil. Terms of advance : 2000. Terms of payment : cash against delivery.

(2.) The receipt of Rs. 2,0007- as advance from the respondent is admitted and that the quantity supplied is only 167 maunds is not disputed. There is difference between the parties as to who is responsible for the rest of the stipulated quantity not being supplied, each party imputing default to the other. After exchange of notices the suit relating to this appeal was filed on 31-3-1948 for recovery of Rs. 107057- made up of Rs. 2000/- paid as advance, Rs. 375/- cost of barrels left with the defendant and Rs. 83307-as damages. Defendant denied liability to pay anything, as, according to him, plaintiff alone was to blame for the contract not being fully carried out. The learned District Judge on a consideration of the evidence held that defendant was in default and liable to pay damages which were assessed at Rs. 4,378-8-0 together with the advance and value of barrels as claimed by the plaintiff.

(3.) Sri Venkataranga Iyengar on behalf of the appellant argued that the finding of the learned Judge is not warranted by the evidence and referred to the relevant portions thereof to show that the plaintiff himself has failed to perform the Initial conditions necessary to support the claim. From the terms "Ex-Mills" in Ex. A it is clear that the goods had to be delivered at the defendant's mills at Channapafcna and Section 35, Sale of Goods Act requires that the buyer should apply for delivery. The buyer had further to be ready with the money for payment at the time of delivery. There was no obligation on the defendant to send or deliver the goods unless the plaintiff applied for it and the price was offered. According to Ex. A the entire supply had to be made by the end of October 1945. The plaintiff did not write to the defendant in Exs. VI, VII and VIII which are the only letters in October that he wants it or arranged to take it. In Ex. VI he complains about the quality of the oil sent and in Ex. VII he seeks intimation of the rate at which the oil would be supplied in November in order to enter into a new agreement. None of the witnesses examined for the plaintiff says that any one went to the defendant on plaintiff's behalf in October to obtain delivery of the oil. In view of this the plaintiff is not justified in claiming damages on the ground of defendant committing a breach of the contract.