A K ABDUL AZEEZ Vs. V C RAMALINGAM

JUDGEMENT

(1.) The appellant entered into a contract with the respondent who was the agent of the Maya Engineering Works, Calcutta, on 27-5-1949 for the purchase of 42 pumps. An advance-of Rs. 100 was paid on the date of the contract The balance of the purchase money was agreed to be paid against the delivery of railway receipt which was to be sent through the respondent's banker. The terms of the contract were that the goods should be sent by train to the Madras Salt Cotaurs, and that the responsibility of the same was to cease with the delivery of the goods to the carrier at Calcutta. The Maya Engineering Works did not, however, send the goods by rail. It is unnecessary now to ascertain the reason which prevented them front adhering to the terms of the contract. In August, 1949, they sent by ship the goods agreed to be purchased, and sent the appellant the relative invoice with a request to honour the bill. The appellant did not pay the bill or receive the document, as he was not sure that he would get the goods undamaged and intact under a sea transport. Correspondence followed between the parties. The appellant wanted an assurance that the goods would reach him in good condition without pilferage, and that any loss in that account should be compensated by the seller. The correspondence and negotiations that followed led to a delay, and the appellant further insisted as a condition of his paying the bill that there should be a guarantee from the respondent to compensate him in respect of demurrage payable, and also for the over due interest, in respect of the unpaid purchase money; the respondent offered that, if there was any defect, in the goods on account of defective manufacture, they would replace them, but they did not agree to bear the loss in transit, whether due to pilferage or other causes. From the correspondence, it is clear that the appellant was ready to take delivery of the goods if the respondent would meet his demands regarding compensation. The respondent, on the other hand, insisted that the responsibility of the supplier ceased with putting the goods on board the ship and all risks, demurrage, etc. would have to be taken by the appellant. Further correspondence did not induce the parties to change, their respective attitudes. The appellant finally repudiated the claim of the respondent on the ground that, as the latter had not acted up to the terms of sending the goods by train, but instead sent than by steamer, he was absolved from all obligations under the contract, but that the respondent being guilty of breach in not sending the goods in accordance with the contract, was answerable in damages to him, besides returning the advance paid. The respondent cleared the goods, after paying the charges due to the Port Trust etc. But the respondent filed the suit, out of which this appeal arises, for recovery of the entire balance of price of the goods, namely, Rs. 876-11-3, incurred by them and subsequent interest. There was an offer to deliver the goods taken by the respondent. The appellant countered it by instituting a suit for recovery of the advance paid, and a further sum of Rs. 145 as damages.

(2.) Both the trial and the appellate Judges held that the mode of transport stipulated in the contract was an immaterial term, and that the appellant was not entitled to refuse to take delivery of the goods or pay for the same. In that view, the suit was decreed. The appellant's claim for refund of advance and damages was rejected, and as the suit was originally laid as a small cause suit, no further appeal was possible, and no other proceedings appear against that decree of the trial Court.

(3.) This present appeal is, therefore, concerned with the question, whether the seller was entitled to recover the price of the goods on the ground that the buyer was in default. It is not disputed that the contract of sale expressly stipulates that the goods should be despatched by train. The respondent stated in the plaint that an alteration of that term enabling a despatch by sea was agreed to between the parties. This was denied in the written statement. No issue was raised on the question or evidence tendered. Both the trial as well as the appellate Judges proceeded on the footing that Ex. A-1 governed the rights of the parties, namely, that the mode of transport agreed between the parties, was through rail. But they held that the term relating to the carriage of goods by train was an immaterial one.