G C SETT Vs. MADHORAM HURDEODASS

JUDGEMENT

(1.) The plaintiff firm sues to recover Rs. 3,5653-14-6 as damages for breach on the part of the defendant firm of a contract, dated 2nd February 1914, by which they agreed to sell 150 tons basic steel bars to be shipped in June, July and August 1914 in equal proportions. The plaintiffs allege that in pursuance of the said agreement they paid for and took delivery of the June shipment, and they received invoices in respect of the July shipment of the said goods on the 2nd October 1914, the goods actually arriving in Calcutta on or about the 2nd January 1915, that thereupon they offered to pay for and take delivery of the July shipment, but the defendant firm put them off under various pretexts, The time for delivery of the said goods was extended, according to the plaintiffs, by mutual consent till the 12th February 1915. They allege that they made a tender on the 19th January 1915 which was not accepted.

(2.) The defendants in their original written statement admitted the agreement, but denied that the plaintiff firm paid for and took delivery of the June shipment, alleging that the defendant firm had to institute a suit to recover the price of the said goods in which they obtained a decree on the 26th January 1915. They allege that copies, not the original, invoices of the July shipment were sent to the plaintiffs, and that on arrival of the said goods on the 2nd January, they called upon the plaintiff firm to take delivery in accordance with the terms of the contract of the 2nd February 1914, but the plaintiffs failed and neglected to take delivery in terms of the contract. They denied that any time had been extended for delivery and submitted that the defendant firm had a lien on the goods of July shipment for the price of the goods of the two shipments, namely, of June and July, inasmuch as the plaintiff firm had committed a breach of the contract by not paying the price thereof. They denied that the plaintiffs were ready and willing, and alleged that the tender was not valid or proper. They further alleged that without prejudice to their rights they, on or about the 27th January 1915, at the request of the plaintiff firm, offered to deliver the goods of the July shipment on receipt of the price, godown rent and charges, but the plaintiff firm refused to take delivery of the goods on those terms.

(3.) When the case came on to be heard, Counsel for the defendants raised various issues which were not covered by the original written statement. I thereupon directed them to put in a further written statement which was filed on the 30th November 1915. The points raised in this written statement were: (1) that the goods were shipped from Antwerp on or about the 2nd July 1914 per Section s. "Steinturm". On the outbreak of the war the said steamer which was on the high seas became liable to seizure, and was in fact seized and detained by His Majesty s Government at Colombo and was subsequently condemned with all the cargo on board by the Colombo Prize Court, and that accordingly the contract with the plaintiffs became impossible of performance. (2) That alternatively should this Court come to a contrary conclusion, the charges specified in a bill of the defendants alleged to have been sent to the plaintiffs on the 23rd February 1915 were proper charges, but inasmuch as the plaintiffs refused to pay same, they could not get delivery of the goods. They further submitted that on the outbreak of the war the contract became unlawful and the defendant firm was discharged from all liability thereunder. They also denied that the market rate was correctly stated in the plaint.