D. V. DEO Vs. ABDUL HAMEED

JUDGEMENT

(1.) Decree for realisation of the price of palmarosa oil supplied by the respondent - plaintiff is challenged in this appeal by the defendant.

(2.) Both plaintiff and defendant are partnership firms dealing in oils and perfumes. They were having good personal and business relationship. In June 1980, defendant collected sample of palmarosa oil from the plaintiff through its agent and got satisfied of its qualify by testing. On 23-8-1980, defendant ascertained from the plaintiff over phone about the availability of 167. 3 kgs. of palmarosa oil and its willingness to sell it for Rs. 142. 80 per kg. The same day, defendant sent its driver with car and carboys and collected the oil which was taken to its premises. Bill was sent on the same day by post and it was received by the defendant on 25-8-1980, on 26-8-1980 defendant sent Ext. A7 letter rejecting the supply without assigning any reason. When plaintiff objected in its letter Ext. A8 dated 27-8-1980, the defendant replied by Ext. A9 dated 28-8-1980 stating that the bulk is substandard. On 29-8-1980, plaintiff again sent Ext. A10 reiterating its stand and demanding the price. Then Exts. A11 and 12 letters were sent by the defendant on 30-8-1980 and 3-9-1980 asking the plaintiff to take back the goods and informing that it does not conform to the sample. These are the circumstances under which the suit was filed.

(3.) This is admittedly a case of sale by sample. The main dispute between the parties is whether the bulk supplied conforms to the sample or not and consequently, whether there is liability to make payment or not. When the contract is by sale of goods by description, there is an implied condition that the goods shall correspond to the description and if the contract is for sale by sample, there is the implied condition that the bulk corresponds with the sample in quality. So also, the buyer shall have reasonable opportunity of comparing the bulk with the sample. The property in the goods is transferred to the buyer at such time as the parties to the contract intended it to be transferred. Intention has to be gathered from the terms of the contract, the conduct of the parties and the circumstances of each case. In the absence of intention to the contrary, when, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or bailee for transmission to the buyer and the buyer does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. The seller is only bound to give a reasonable opportunity to the buyer to examine the goods not previously examined. It is for the buyer to decide whether he has to examine or not. He can waive his right of examination and accept delivery. After waiving right of examination and taking delivery of the bulk, the buyer may not be entitled to reject the goods on the ground that they do not conform to the sample. Sale of goods by sample is also sale by visual description probably because physical description by looking at the sample is not possible. Even when the bulk corresponds to the sample, the buyer can reject the bulk for latent defects rendering the goods unmerchantable. But such a contention is not there in this case. Therefore, the two questions to be considered in this case are whether the bulk corresponds to the sample and if not, whether such a plea is now not available to the defendant on the ground that he had a reasonable opportunity of comparing the bulk with the sample but he did not do so.