PHOENIX MILLS LTD Vs. MADHAVDAS RUPCHAND

JUDGEMENT

(1.) On the 18th of September 1913, the Phoenix Mills, Limited, the plaintiffs in this suit, entered into a contract with Madhavdas Rupchand & Co., for the purchase and sale of certain bales of yarn. Madhavdas Rupchand & Co., the defendants in the suit, signed a memorandum of sale which contains a number of printed terms, while the number of bales, the price, the method and time of delivery are entered in manuscript. The memorandum of sale was confirmed on behalf of the plaintiffs by a letter of the same date signed by the agents No. 1 of the printed terms is as follows :- We (i.e. the defendants) agree to pay for the bales in advance at the time of taking delivery order for the bales, and to take delivery of them from time to time as they are ready (the date of the bales that are ready to be ascertained by us by inquiring at the Company s office), but if we fan to take delivery of the bales as stipulated, we agree to pay interest at the rate of 12 annas percent per mensem, on the purchase money on such bales as are ready.

(2.) If we fail to take delivery of the bales at the stipulated time, we agree to pay rent to the Company for the bales lying on our account in the Company s godowns at the rate of one quarter anna per bale per day.

(3.) If we fail to take delivery of the bales as stipulated and if the Company wish to keep them no longer on their hands, they are at perfect liberty to resell them on our account and risk by public auction or by private sale, and we hereby agree to make good to the Company any loss that they may suffer by the resale. In case of such resale we further agree that the Company shall also have the right to annul the whole contract, or a part thereof respecting the remaining bales that are to be manufactured, and claim from us any damage whatever they may sustain. 2. The terms of delivery are in manuscript : 200 Bales No. 20s and 20 1/2s Ring October-November 1913 and 50 Bales No: 6 1/2s Mule yarn as manufactured. 3. I am not concerned with 50 bales 6 1/2s. But the plaintiffs claim in this suit that the defendants failed to take delivery of 34 bales of 20s and 58 bales of 20 1/2s so that they were compelled under Clause 3 to sell the bales by auction and they now sue for the difference between the contract price and the price realised at the auction.