MOHANLAL KASHINATH Vs. KRISHNA PREMJI AND CO

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Kemp by the defendants who were the purchasers from the plaintiff, of 100 tons of steel baling hoops under a contract of August 17, 1925, providing for shipment in four lots, one in September, two in October and one in November 1925 or earlier. Out of those four lots we are not concerned with one, viz., the September lot. That was taken and paid for. As regards one of the October lots and as regards one other, objections were raised of late delivery. One objection was based on this that the force majeure Clause (No. 3) in the contract with reference to accidents etc. and giving a further time of twelve weeks, did not apply on the facts of the present case. That contention has not been persisted in in this Court.

(2.) One other contention which was persisted in was that Clause 1 of the contract, which gave an extra fifteen days beyond the period stipulated thereunder, did not apply having regard to the express terms of the document, viz., the provision for shipment which I have already mentioned. In our judgment the learned Judge was clearly right in holding that Clause 1 did apply. Consequently the appellant fails on that point.

(3.) We are thus left with a comparatively narrow objection to two out of the four lots, viz., that this was either a c. i. f. contract in substance, or else had a similar effect having regard to the true construction of certain terms and that consequently it was obligatory on the vendors to tender amongst the shipping documents a policy of insurance, and that as the vendors failed to do that, they broke their contract, and cannot succeed in this suit. This is really in the nature of a technical objection, because it is common ground that in fact the goods were duly insured. The policies were put in in evidence as Exh. I Moreover, from first to last the defendants never expressly asked for a policy of insurance to be produced, although they did specifically ask, for instance, for proof of the force majeure. They rely on this that we have here a document partly in printed terms and partly in written terms; that the written terms must prevail, and that as those written terms provide that the price is & 11-3-0 per ton c. i. f. c. i. Bombay, that necessarily implies that all the necessary conditions of a c. i. f. contract must be carried out.