N M RAYALU AIYAR, NAGASAMI AIYAR AND COMPANY BY ONE OF ITS PARTNERS N M NAGASWAMI AIYAR Vs. SSRAMUDU AIYAR

JUDGEMENT

(1.) It will be convenient first to deal with Appeal No. 334. The plaintiffs and appellants before us were the sellers and they had entered into a contract to deliver to the buyers 60 bales of yarn of various counts. They delivered 28 bales before 15 November, 1918 when the controversy between the parties arose. The offer is to be found in a letter of the 27 July, Ex. A accepted by an answer of the 5 August, Ex. II. The terms of the contract are very simple. The bales were to be delivered by the sellers as soon as they got them from the Mills which manufactured them and what is called Tavanai credit was extended to the buyer. That is explained in this way. The mill month runs from the 21 of one month to the 20 of the next, and the period of credit is to the end of the calendar month following that in which the mill month expired; that is to say, for goods delivered by the mill from the 21 September to the 20 October payment will be due on the 30 of the following November. On the 15 th November, the sellers wrote announcing that 9 bales had arrived at the mills and were in stock there and the letter says: If you therefore pay us Rs. 2,660 being the balance due for the October Tavanai and Rs. 21,120 being the balance due for the November Tavanai, Rs. 25,780 in all, we shall also pay the amount to the mills, take out the bales and deliver them to you.

(2.) We see no answer to the contention that that was a bad tender because it did not offer to deliver the goods which were due for delivery unless a condition was complied with which was not in accordance with the original contract. It is clear therefore that there never was at this date any valid tender of the 9 bales. With regard to the remaining 23 bales they were never tendered at all but the sellers contention is that they were entitled to cancel the balance of the contract in the events which happened and that they did so by their letter of the 22nd January, 1919, Ex. B. It is quite true that in Ex. II we find the position that if payments were not duly made in accordance with the contract there was a provision for cancellation of all the outstanding part of the contract at the sellers option. Assuming that Ex. B is not merely a threat to cancel but does actually purport to effect a cancellation, we are clearly of opinion that it was not a cancellation which the sellers were entitled to bring about as matters then stood. The demand was to pay first a sum of Rs. 23,780 as to which we will assume for this purpose the money was due but it was coupled with the further demand that 9 bales should be paid for of which up-to-date, as we have found, there had been no valid tender. In these circumstances we agree with the learned Judge that the sellers were never in a position to claim damages for non-acceptance of any one of these 32 bales.

(3.) The other appeal, No. 219 of 1922 relates to the price of the 28 bales which the buyers have had and not paid for. They seek to evade payment by invoking the provisions of Order 2, Rule 2 of the Civil P. C.. What happened was that the sellers brought two suits, one in respect of the 28 bales as goods sold and delivered and the other in respect of the balance of 32 for damages for non-acceptance. A Full Bench of the Calcutta High Court in Duncan Brothers and Co. V/s. Jecetmull (1892) I.L.R. 19 C 372 giving effect to. a prior expression of opinion by Wilson J., has held that, though the two causes of action may be legally different, if the goods are all deliverable under one contract you cannot validly split them into two and bring separate suits in respect of them. Assuming this to be correct, the words of Order 2, Rule 2 are: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.