DINKERRAI LALIT KUMAR Vs. SUKHDAYAL RAMBILAS

JUDGEMENT

(1.) THIS is an appeal from the judgment of Mr. Justice Coyajee. On June 26, 1942, the defendants sold to the plaintiffs 33 bales of piecegoods or 36 bales, three bales more according to the option of the defendants. In all delivery was given of 22 bales between July 3, and August 21, 1942. The defendants, according to the plaintiffs, failed to give delivery of the remaining 11 bales, and the plaintiffs have fled this suit for damages for non-delivery of the 11 bales. Mr. Justice Coyajee who tried the suit held that the defendants had committed a breach of the contract and that they had failed to give delivery of the 11 bales; and he referred the suit to the Commissioner to assess the damages on the basis that the breach had taken place on November 12, 1942, and that damages should be assessed at the difference between the market rate prevailing on that date and the contract rate. The plaintiffs' case was that they had made various demands for delivery. They proved two oral demands in October, 1942, and they also proved that a tender was made for the remaining eleven bales on November 12, 1942, which tender was refused by the defendants. On this evidence the learned Judge came to the conclusion that the contract had been broken on November 12, 1942.

(2.) IN this appeal the first question that arises is whether there was any breach of the contract on the part of the defendants. Under Section 35 of the INdian Sale of Goods Act, 1930, it is obligatory upon the buyer to apply for delivery and the seller is not bound to deliver the goods unless there is an application for delivery on the part of the buyer. Mr. Setalvad has contended that in this case there was no application for delivery by the buyer within reasonable time and, therefore, there was no breach on the part of the seller as the seller was not bound to deliver the remaining 11 bales.

(3.) WE might point out that we do not agree with the contention of Sir Jamshedji Kanga that when goods which are to be delivered are ready goods, no application for delivery is necessary on the part of the buyer tinder Section 35 of the Indian Sale of Goods Act. Section 35 makes 110 distinction between the sale of ready goods and of forward goods; and the Privy Council in Sivayya v. Ranganayakulu (1935) 37 Bom. L. R. 538, P. C. has laid down that the buyer can only be relieved from his statutory obligation to apply for delivery by an express stipulation to the contrary.