GOVINDRAM SEKSARIA Vs. EDWARD RADBONE

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court of Judicature at Bombay, dated December 4, 1944, made in its appellate jurisdiction, setting aside the decree of that Court dated April 10, 1944, made in its original jurisdiction, and giving judgment for the respondent for Rs, 99,043. The history of the case begins with a contract made on September 9, 1938, between the first appellants of the one part and Francke Werke A. Q. of Bremen, Germany, and Hansa (India) Trading Company Limited of Bombay (therein and hereinafter referred to as "the sellers") of the other part. By the contract the first appellants agreed to buy, and the sellers agreed to sell, certain machinery with all the accessories, as specified in schedule A to the contract, for a complete oil refining and hydrogenating plant.

(2.) THE relevant terms of the contract ma,y be summarised as follows : (i) By clause 1 it was provided that the delivery by the sellers was to consist of the machinery, etc. specified in sch. A. THE sellers were also to supply free of charge complete sets of drawings showing the arrangement in detail of the buildings and execution drawings of foundations. (ii) By Clause 2 the total price for the plant as specified in sch. A was to be 177,500 Reichmarks, delivered c. i. f. Karachi Port. This price was to include all export, packing, forwarding and insurance charges. By subsequent written agreement between the parties, it was agreed that delivery should be e. i. f. Bombay. (iii) Clause 3 contained the terms of payment which was to be made by instalments as follows : (a) 25 per cent, of the total price (i. e. 44,375 Reichmarks) on the signing of the contract. (b) 25 per cent, of the value of each consignment against shipping documents, the total being 44,875 Reichmarks. (c) 25 per cent, of the total value of the order after completion of the erection of the whole plant, on the plant being found mechanically satisfactory on trial. (d) 25 per cent, of the total value of the order four months after the payment under (c ).

(3.) ON January 1, 1939, the first appellants paid the first instalment of the price, amounting to 44,375 Reichmarks which was equivalent to Rs. 50,212. By an agreement dated July 27, 1939, the first appellants agreed to sell to the second appellants all the right title and interest of the first appellants in the plant and accessories comprised in the contract.