RASH BEHARY SHAHA Vs. NRITTYA GOPAL NUNDY

JUDGEMENT

(1.) This is an appeal brought by the defendants against a judgment find decree of this Court in favour of the plaintiff in an action for damages for breach of contract to deliver sugar.

(2.) The plaintiff through his agent entered into two contracts with the, defendants firm, each for the purchase of 150 tons of Java sugar. The contracts were similar: the portions material to this appeal run as follows: The shipment of the sugar shall be made during September a October, next in lots of about 75 tons in a shipment.... Should the vessel or vessels be lost, or any portion of the goods declared as shipped be short landed, this contract to be void as regards such portion .... Delivery shall be given and taken from the Port Commissioners Jetty for ghats and for seller's godown in Calcutta on arrival of the goods. Terms : Cash before delivery.....

(3.) The plaintiff's case was that he tendered the price of the September shipment and of the October shipment, but the defendants wholly refused to deliver the September and October shipments in both contracts. The defendants case was that the plaintiff refused to take delivery of the September shipment under the two contracts, and that therefore he was entitled to cancel and did cancel the contracts. The first controversy on the facts turns on the question whether the plaintiff tendered to the defendants the price of the September shipment.