HINDUSTAND LEVER LTD. Vs. LAKSHMAN PERSHAD GUPTA

JUDGEMENT

(1.) CHALLENGE by means of this first appeal is to the impugned judgment and decree dated 15.1.2000 whereby the suit of the Respondent/Plaintiff has been decreed for goods supplied, being skimmed milk powder, and which were ordered by the Appellant inasmuch as the same was to be used for production of animal feed.

(2.) IT is not in dispute that the goods in question were in fact delivered by the Respondent to the Appellant. The contention of the Appellant was that the goods were defective and therefore the Respondent/Plaintiff was not entitled to payment.

(3.) THE second ground which was urged before the Trial Court by the Appellant, and is also being urged before me, is that once the goods are defective, the Respondents are not entitled to payment and the Respondent should have lifted back the goods. In this regard, the Trial Court has held that no doubt Section 43 of the Sales of Goods Act, 1930 provides that the buyer is not bound to return the defective goods to the seller, however, the said Section makes it clear that this position is only if it is not otherwise agreed. The Trial Court has referred to the letter of the Appellant itself dated 2.5.1987, Ex.PW1/1, in which it is clearly stated that the material if found to be defective, the same would be returned by the Appellant to the Respondent. I do not also find any illegality or perversity in this finding of the Trial Court. The Trial Court has also noted that the Appellant has used the skimmed milk powder as there is nothing on record to show that the Appellant still has the skimmed milk powder lying with it or is in a position to return the stock.