NAVNITAL AND CO Vs. KISHANCHAND AND CO

JUDGEMENT

(1.) THE plaintiffs sue to recover damages from the defendants for breach of two contracts for the sale and delivery of cotton yam. It is the plaintiffs' case that the first plaintiffs Carry on business of export and import in Bombay and that in the matter of the contracts in suit they acted for and on behalf of plaintiffs 2 to 5 who carry on business in cotton yam and piece-goods fit Singapore in the name and style of Manalal Gowindji and Co. On 16-11-1950 two contracts were entered into between the defendants and the first plaintiffs acting On behalf of their overseas friends Messrs. Manalal Gowindji and Co. One contract was for the sale by the defendants to the overseas firm of 50 bales of cotton yarn at Rs. 34/- per bundle of ten pounds F. O. B. Cochin on terms and conditions recorded in a letter dated 16-11-1950. A similar contract for the sale of 100 bales of cotton yarn was entered into between the same parties on the same terms except that in the first contract credit was to be valid upto the end of February 1951 whilst in the other contract credit was to be valid upto the end of March 3951. According to the plaintiffs the defendants failed to perform their part of the two contracts and delivered only 30 bales of cotton yarn after considerable delay. There was some correspondence between the parties in the course of which the defendants Stated that their vendors, Messrs. Alagaopa Textiles (Cochin) Ltd. had failed to perform their part of the contracts with the defendants and the defendants were consequently absolved from all obligation under their contracts with the plaintiffs. They also stated in that correspondence that the contracts were conditional on the Alagappa Textiles (Cochin) Ltd. delivering the goods to the defendants and the Mills having failed to do so the defendants in their turn had become entitled to cancel their contracts with the plaintiffs.

(2.) IT is not necessary to summaries the pleadings in this case since issues were raised On behalf of the defendants in respect of only two of the contentions taken up in their pleading and of the two contentions one, relating to the illegality of the contracts, was abandoned by Mr. M. V. Desai, learned counsel for the defendants, after the hearing of the suit had proceeded for some time. The only issue and the only question that remains for my determination in this case is whether the two contracts were absolute, i. e. created absolute obligation on the defendants to deliver the goods, or whether the contracts were conditional, i. e. , contingent upon Messrs. Alagappa Textiles (Cochin) Ltd. in their turn performing their part of their contracts with the defendants.

(3.) BOTH the contracts are substantially in the same terms had it will suffice if I set out here only one of them. The contract is as follows: "we have to advise having sold to your overseas friends Messrs. Manalal Gowindji and Co. , 46, Saffling St. , Singapore, 50 bales of cotton yarn 40/1 at Rs. 34 per bundle of 10 lbs. F. O. B. Cochin. The goods have been purchased by us from Messrs. Alagappa Textiles (Cochin) Ltd. for January delivery and will be shipped to your friends as soon as delivered to us. You are requested to pay us a deposit of Rs. 5,000/- in the meantime and the L/c from your overseas friends must reach us within 7 days of the date of this contract. The credit is to be valid upto the end of February 1951 and should provide partial shipments. "