V P PEER MAHOMED ROWTHER Vs. DALOORAM JAYANARAYAN

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Coutts Trotter, giving the plaintiff damages for breach of contract on the ground that the goods delivered pursuant to the contract were found to be damaged by white ants and not of merchantable quality. Mr. M.D. Devadoss, in appeal, has raised a fresh point that Section 113, Indian Contract Act, does not mean that in the case of sales by description and sales by sample there is the same warranty that the goods are of merchantable quality as is provided in Sections 14 and 15 of the English Sale of Goods Act, 1893. It would be a very extraordinary thing if these two statutes which are founded on the same course of English decisions were found to vary in such a material particular as this. The language used in Section 113, Indian Contract Act, is not as clear as the language used in the Sale of Goods Act, which uses the words, merchantable quality." But the first illustration to Section 113, Indian Contract Act, is clearly taken from the case of Gardiner v. Gray (1815) 4 Campbell 141 which was one of the earliest cases to lay down that there was a warranty that the goods shall be saleable in the market under the denomination mentioned in the contract between them (the parties). There was a series of cases subsequently, including the case of Jones v. Just (1868) L.R. 3 Q.B. 197 down to the case of Nusserwanji Bomanjee Mody and Ors. v. Gregson and Ors. (1868) L.R. 4 Ex. 49. That case was decided in 1868 about the time when the Indian Contract Act was under consideration, and it appears fairly clear that the language of Section 113 was borrowed from the language of that eminent Judge, the late Mr. Justice Willes at page 55 of the judgment in that case. He says, " Another class of cases is that of goods brought under a specified commercial description, either by sample, or even after inspection of bulk" (the two cases dealt with in the section). He goes on : "In such cases it is an implied term, notwithstanding the sample or inspection, that the goods shall reasonably answer the specified description in its commercial sense. The sample in such cases is looked upon as a mere expression of the quality of the article, not of its essential character, and notwithstanding the bulk be fairly shewn, or agree with the sample, yet if from adulteration or other causes not appearing by the inspection or sample, though not known, to the seller, the bulk does not reasonably answer the description in a commercial sense, the seller is liable". It is quite clear that the language of Section 113 is modelled upon the language of the case just cited, and does not mean to lay down any rule different from that which is to be found in the English cases and which has now been embodied in greater detail in Sections 14 and 15 of the Sale of Goods Act.

(2.) That being so, the facts of the present case are that the bales of yarn were imported from England bound in iron hoops; and the evidence is that one hoop was removed, when they were imported. If the other hoops had been removed and the goods had been subjected to a detailed examination, they would have lost the character of imported goods under which they were sold. The evidence is that the outside of the bales was inspected before purchase but without removing the hoops or examining the contents. That was such examination as the case admitted of, and it would not disclose the fact that white ants got in and had injured the yarn. Therefore the fact that the goods were inspected before purchase is no answer, Section 113 of the Indian Contract Act says, "where goods are sold as being of a certain denomination there is an implied warranty that they are such goods as are commercially known by that denomination, although the buyer may have bought them by sample, or after inspection of the bulk". Section 14 of the Sale of Goods Act says that "the goods shall be of merchantable quality; provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed." The present defect is not a defect which the examination which took place ought to have revealed.

(3.) The only other point is as to whether there were sufficient grounds to justify the finding on the evidence of the learned Judge that these goods were not of a merchantable quality at the time they were delivered by the seller to the buyer.