K N LAKSHMIAH ALIAS N LAKSHMIAH CHETTIAR Vs. HAJEE S ABDUL AZEEZ, ABDUL AZEEZ AND CO , T MOHAMED YUSUF MARAKAYAR

JUDGEMENT

(1.) This is a Letters Patent Appeal by the deendant in O.S. No. 721 of 1947 on the file of the Additional Judge, City Civil Court, Madras. The appellant was also the plaintiff in O.S. No. 999 of 1947 on the file of the same learned Judge. The matter came up in appeal in C.C.C.A. No. 34 of 1952 before Basheer Ahmed Sayeed, J., and the learned Judge confirmed the findings of the City Civil Court, in both the suits, and dismissed the appeal of the present appellant (defendant) with costs. From that decision of the learned Judge, the present Letters Patent Appeal is before us.

(2.) The facts are quite simple. On 19th March, 1947, the appellant entered into a a contract with the plaintiff in O.S. No.721 of 1947 for the purchase of 150 cotton parachutes at Rs. 24-8-0 per parachute. This is evidenced by the document, Exhibit A-I (page 15 of the printed papers) and there can be no doubt that it is a completed contract of sale between the parties, the purchaser (the appellant) to pay the: packing and cartage charges.

(3.) We shall later come to the express and implied terms of this contract. The further facts were that the goods were despatched by train to Hindupur, the place where the appellant was to receive them according to the contract. The railway receipt was sent along with a demand draft through a bank in Hindupur, according to the usual trade practice. The facts are not in dispute before us that the appellant refused to honour the documents and take delivery of the goods, contending that he was entitled to what he termed 'open delivery', namely, that he would first make an inspection of the goods, and then take delivery of them, only if he was satisfied that the goods substantially corresponded with the description, or, with the sample which he alleged that he was shown. There was further correspondence between the parties, after the goods were left in this fashion undelivered at Hindupur, and, in accordance with one of the terms of the contract, the respondent firm advertised the sale of these goods to be held on 3rd August, 1947. The sale was originally stopped, but, ultimately, actually held on 24th August, 1947, through certain public auctioneers.