DUDHIA FOREST CO OP LABOURERS AND ARTISANS SOCIETY LIMITED Vs. MOHMED SAIYED AND ABDUL REHMANS AND CO

JUDGEMENT

(1.) This Second Appeal is directed against the order passed by the learned Civil Judge J. D. Baria dismissing the plaintiffs suit with costs which came to be confirmed by the learned District Judge Panchmahals Godhra by his judgment and decree dated 23rd February 1976 2 The broad facts giving rise to the present litigation are almost admitted. The appellant-plaintiff is a registered Co-operative Society carrying on business in timber charcoal etc. in Devgadh Baria. Two heaps of charcoal described as lots Nos. 9 and 10 comprising 567 and 886 Boras (gunny bags of the standard size of 56 x 32) were put up for sale by public auction on 28th June 1971 at the Piplod Depot of the appellant-Society. The Range Forest Officer Shri Ghanshyam Shivnath Pande was present at the time of the said auction sale. Before the offers were invited from bidders the terms regarding the auction sale were read over to the bidders by Kantilal Purshottamdas the salesman of the appellant-Society. These terms are contained in a printed leaflet and are on the record of the case at Ex. 47. Term No. 2 indicates that the entire lot was put up for sale and the bids were to be made for the entire lot as a single unit. Term No. 3 which is material for our purpose reads as under:- ***

(2.) At the hearing of this Second Appeal Mr. Zaveri the learned advocate for the appellant submitted that specific goods were sold by the plaintiff Society in two lots which were in full view of the bidders and the mention of the number of boras contained in each lot was merely an estimate which did not form part of the contract and was therefore not a warranty as held by two courts below. He also submitted that on a close scrutiny of the decision in Harnarains case on which reliance has been placed by both the courts below it becomes obvious that it has no application so far as the facts of the present case are concerned. The principal question which therefore arises for consideration is whether term No. 3 read out at the auction sale at the time of inviting offers amounts to a warranty as held by the two courts below.

(3.) A contract may consist of a single term or it may have more than one term. Where a contract has more than one term the nature and import of each term has to be considered in a contextual setting. Very often courts are confronted with the question whether a particular statement is a term of the contract or a mere representation. If the statement is an essential term of the contract it is a condition breach whereof allows the other party to repudiate the contract. If the representation or the statement though forming part of the contract is not vitally important to the subject matter of the contract but is merely collateral to the main performance of the contract it can bE termed a warranty breach thereof may give the opposite party a right to an action in damages. If the representation does not from part of the contract that is if it is neither a condition or a warranty it amounts to an expression of opinion not intended to enter the bargain and its nonfulfilment does not give rise to Any right to a legal action. Thus if the parties considered the term as an essential feature of the contract it is a condition; if they regarded it as a subsidiary or collateral term of the contracts it is a warranty; but if they considered it neither it is a mere representation or expression of opinion not forming part of the contract nonfulfilment whereof is of no legal consequence whatsoever. Whether a stipulation in a contract is a condition or warranty or neither would naturally depend on the construction of the contract in each case. (See sec. 12 of the Sale of Goods Act 1930 hereinafter called the Act).