SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF NELLORE Vs. TSPLPALANIAPPA CHETTY

JUDGEMENT

(1.) This is an appeal from a decree of the District Judge in favour of the plaintiffs in an action for damages for breach of contract. The contract in question was a contract between the plaintiffs and the Government for the sale by Government to the plaintiffs of firewood. The 2nd issue in the case was "whether the delivery of wood by the defendant under the agreement referred to in the plaint was to be by volume or by weight ?" The third issue was whether the defendant failed to supply the full quantity of wood as per the said agreement ?" The 4 issue was whether the defendant is answerable for the shortfall, if any, by weight ?" At the hearing of the suit before the District Judge, the District Judge stated that the point for decision was whether the defendant warranted the weight of the wood," and held that there was a warranty as to the weight of the wood purchased by the plaintiffs. It has been contended before us that there was a contract of warranty with reference to the weight of the wood. It is not suggested that there was any warranty outside the contract of sale. Therefore, in dealing with this question (I propose to deal with that question first), it is necessary carefully to consider what were the terms of the contract between the parties, as they appear in the written documents. The first document I need refer to is an invitation to tender which was published in the Gazette. So far as it is material for the purpose of the question we have to decide, the tender is in these terms. Tenders are invited for the purchase of about 8,500 tons more or less of jungle wood of certain kinds. Then there are six kinds of jungle wood which are set out in the margin to the notification, the various kinds varying in girth. Then the notification goes on to invite tenders at so much per 100 cubic feet of each class excepting a certain class which according to the notification is to be sold in bundles. Amongst the conditions of sale we find the following in condition (c): "That the wood shall be delivered by volume measurement as detailed below and no claim for compensation for shrinkage of stacks will be admitted." Then we have details referring to five kinds set out: and then as against the names of the five kinds, we have, starting with class (1), 100 cubic feet. Then follow these figures 1-13/20 tons. And so on with regard to the other four classes of jungle wood: 100 cubic feet is mentioned with reference to each class and then figures representing a ton and fraction of a ton are set out alongside the hundred cubic feet.

(2.) Now the plaintiffs tender, which is Exhibit B in the case, is in these terms. It refers to the advertisement in the Gazette and then it says: "I beg respectfully to offer the following rates for the several sorts of wood therein specified." Then he sets out the various sorts of wood. With regard to the first sort his offer is Rs. 5-12-0 per 100 cubic feet. With regard to the second sort his offer is Rs. 4-7-0 per 100 cubic feet and so on. In his offer he merely sets out the price in rupees which he is prepared to pay for every 100 cubic feet of the particular kind of wood. There is no reference to weight in his tender.

(3.) Then we have another document, Exhibit C, which is the acceptance by Government of the tender made by the plaintiffs and there we have again the various kinds of wood set out and the prices in rupees which the plaintiffs say they are willing to pay for 100 cubic feet of the particular kind of wood. Again there is no reference in it to weight.