P R AND CO Vs. BHAGVAN DAS CHATURBHUJ

JUDGEMENT

(1.) On the 3 of September, 1907, the defendant agreed to purchase from the plaintiffs 440 cases of Turkey Red goods on the terms of a, written contract. Disputes arose as to whether the goods tendered by the plaintiffs were equal to sample and eventually the defendant agreed to take the goods subject to certain allowances. The defendant afterwards failed to take delivery or to pay for the goods and the plaintiffs brought this suit to recover the amount payable under the contract less the said allowances amounting with interest to the date of suit to Rs. 1,11,573-4-9.

(2.) The learned Judge of the lower Court found that the property in the goods had passed to the defendant and that he was bound to take delivery and pay for the goods but being of opinion that a suit for damages for breach of contract in not accepting the goods was the only remedy open to the plaintiffs and the plaintiffs not having proved damages based upon the difference between the contract rate and the market rate at the date of the defendant's failure to take the goods he dismissed the suit with costs.

(3.) The reasoning by which the learned Judge arrived at the conclusion that a suit for the price! of goods sold is not maintainable is briefly as follows: The English Sales, of Goods Act, 1893 explicitly provides that where the property has passed to the buyer and he neglects to pay the seller may maintain an action for the price. The Indian Contract Act does not contain any such provision. The Indian Contract Act is exhaustive of the law of India relating to the sale of goods; therefore, such an action is since the passing of the Indian Contract Act no longer maintainable in India.