VENKATESWARA MINERALS Vs. JUGALKISHORE CHIRANJITLAL

JUDGEMENT

(1.) This appeal by the defendant has been preferred against the decree and judgment dated August 23, 1975 made in O.S. No. 10 of 1971 by the Civil Judge, Bellary.

(2.) Briefily stated the facts are these : Plaintiff is a registered firm and so too the defendants. They are carrying on business as mineral dealers. On February 1, 1968 the defendants firm (collectively called 'the defendant') entered into an agreement with the plaintiff at Madras to sell 600 tonnes of red-oxide at Rs. 50/- per tonne F.O.R. Torangallu, Hospet, Bellary, In consideration for the sale of red oxide, plaintiff paid Rs. 30,000/- to the defendant. The delivery was required to be made within 45 days from the ready stock available at Bellary. The time was considered as of the essence of the agreement. If the goods were not delivered within 45 days, plaintiff could ask for refund of the purchase price. The defendant was having its head office at Madras and a Branch Office at Bellary. The Head Office sent instructions to the Branch Office apprising the latter of the agreement and asking to comply with the terms thereof. But the defendant did not supply the goods within the stipulated time with the certificates required inspite of repeated reminders from plaintiff. So plaintiff brought the suit for recovery of Rs. 30,000/- paid under the agreement.

(3.) The defendant resisted the suit, inter alia contending that the goods agreed to be sold were always kept ready for delivery to the knowledge of plaintiff, but it could not be delivered since plaintiff did not requisition railway wagons as required under the agreement. The requisition of wagons was a necessary condition of the contract, but plaintiff in view of the falling price of red-oxide made only paper pretences for taking delivery while in effect and in practice failed to perform his part of the contract. The time was not of the essence of the contract. However, the defendant for keeping up smooth relationship between the parties was always ready and willing to deliver the goods as per conditions prescribed under the contract. The goods were kept ready to despatch with all the necessary certificates when plaintiff extended time for delivery, but even then, plaintiff did not intimate the availability of railway wagons. Plaintiff has thus committed a breach of the contract and therefore not entitled to get back the price money paid. With these and other allegations the defendant prayed for dismissal of the suit.