P L D 1957 (W (PLP)

WAHIDUDDIN, J.--‑This judgment will dispose of the two connected appeals, First Appeal No. 50/53 and First Appeal No. 51/53. The facts leading to these two appeals, shortly put, are that the appellant agreed to sell 2500 lbs. of staple yarn 20/1 and 2500 lbs. of staple yarn 30/1 of April/May shipment under a written contract dated 15th February 1951. They also received Rs. 2,812‑8‑0 as deposit towards the performance of that contract. According to the respondents the appellants failed to deliver the said goods within a reasonable time and committed breach of the contract. They, therefore, filed Suit No. 643/51 on the original side of the Chief Court of Sind for the recovery of the same from the appellants. In a cross suit known as Suit No. 861/51 on the Original Side of the Chief Court of Sind, the appellants claimed Rs. 9,270 as damages on the allegation that the respondents failed to take delivery of the goods in accordance with the terms of the said contract, that they committed breach and are, therefore, liable to pay the said damages. Both these suits were heard by our learned brother Inamullah, J. on the Original Side of, the Chief Court of Sind, The learned judge with the consent of the parties, recorded evidence in Suit No. 643/51 and the evidence recorded was treated as evidence in the other case. The learned Judge by a judgment dated 11th May 1953, decreed Suit. No. 643/51 on the ground that the appellant failed to supply the goods within a reasonable time and ordered them to pay Rs. 2,812‑8‑0 to the respondents. The learned judge further held that as the breach was committed by the appellants they are not entitled to any damages and dismissed the suit for this reason. Mr. Hafiz Ahsan, the learned counsel for the appellant, has attacked the judgment on two grounds : firstly that the respondent did not make any allegation in the plaint that they were ready and willing to perform their part of the contract and, therefore, the suit should have been dismissed for this reason. Secondly, that under section 35 of the Sale of Goods Act, in the absence of any express contract between the parties, it was necessary for the buyer to demand the delivery of the goods before repudiating the contract and as the respondent in this case did not make any demand for the delivery of the goods from the appellant, therefore, the learned judge was not justified in decreeing the suit against his clients. In order to appreciate the arguments, it will be convenient to mention here that the two contentions raised before us were not specifically raised and contained in the pleadings before the learned trial judge. In fact, these contentions were not even raised before the learned trial Judge at the time of the hearing of the arguments. So far as the first contention is concerned, we consider that in a suit for damages for breach of contract for sale of goods or for the refund of the amount paid as deposit to the seller, by the purchaser, it is not necessary for him to allege and prove that he was ready and willing to perform his part of the contract unless the defendant expressly pleads and puts him to such proof. In the present case no such plea was taken by the appellant and, therefore, the contention of the learned counsel for the appellant on this ground is not well founded. So far as the second contention is concerned, it will be pertinent to note here that under section 35 of the Sale of Goods Act, it is the duty of the buyer to demand delivery of the goods, unless there is an express contract to the contrary. Section 35 of the Sale of Goods Act reads as under : "Apart from any express contract, the seller of goods is not bound to deliver them until the buyer applies for delivery". According to the decision Dinkerri Lalit Kuman and others. v. Sukhdyal Raubrlas (A I R 1947 Bom. 293) of the Division Bench consisting of Stone, C. J. and Chagla, J. it is necessary in a suit filed by a buyer against seller for damages for non‑delivery, to explicitly state that the application for delivery of the goods was made on his part to the seller, as it is a part of the cause of action. In this connection Chagla J. observed : "It is true that when a buyer sues a seller for damages for non‑delivery, application for delivery on his part is a part of the cause of action and must be explicitly stated, but when we turn to para. 3 of the plaint, we do find an averment that the defendants had failed to give delivery of the remaining goods in spite of the repeated requests made in that behalf by the plaintiffs. In our opinion this averment, although perhaps not a specific as one might have desired, is sufficiently clear to cover the application for delivery relied upon by the plaintiffs at the trial on the date on which the contract was made, namely, 26th June 1942". Unfortunately, in the present case, the respondents did not make any such averment in the pleadings and, therefore, no issue was raised on this particular question. The learned counsel for the appellant, however, urged that the suit was filed on the allegation that the appellant did not deliver the goods within a reasonable time, and in defence the appellant was entitled to show that the respondents did not make any demand for the delivery of the goods and, therefore, the question of delivering the goods within a reasonable time, could not arise. There is some force in this contention. Their Lordships of the Privy Council in Sivayya v. Ranganayulu (A I R 1935 P C 67) while considering the effect of section 93 of the Contract Act, which is almost identical in terms to section 35 of the Sale of Goods Act, observed: "It is important to observe that section 93 applies unless there is a special promise, which in their Lordships' opinion, indicates an express stipulation as to delivery which relieves the buyer from the obligation to apply for delivery, or the necessary implication of such a stipulation from the nature of the contract as expressed. It might also arise out of usage or custom of trade, as provided in section 1, Contract Act. But, in their Lordships' opinion, an obligation assuming that it existed in the present case, as is suggested by the High Court on the seller to inform the buyer when the goods are in a deliverable state is not a special promise within the meaning of section 93 though it may postpone the obligation of the buyer to apply for delivery, and, on the elapse of a reasonable time to enable 1, the goods to be procured by the seller from the mills, the buyer would be entitled and bound to apply for delivery". Their Lordships further observed, "There is no case made or proved of custom or usage of trade and their Lordships are of opinion that looking at the evidence as a whole, it is neither proved as a term of the contracts, nor it is a necessary implication for the nature of the contracts, that the buyer was to do nothing until he received an intimation from the seller of the arrival of the goods from the mills. If that be the right view, then there is no special promise such as would exempt the buyer from his obligation under section

93. It must be remembered that, when the buyer applies for delivery under section 93, it will be a question depending on the nature and circumstances of the particular contract as to the time within which the seller is bound to comply with the buyer's demand. Their Lordships are therefore of opinion that the respondents failed to fulfil their obligation under section 93 and that they were not entitled on 3rd January 1919, to treat the contracts as cancelled". In that case also the plea under section 93 Contract Act was not raised in the trial Court. It was for the first time raised in the High Court. The point raised before us is al mixed question of law and fact. In the interest of justice we have allowed it to be raised at the appellate stage. We consider that in a suit for damages or for the refund of the deposit, on the breach of the contract for the supply of goods, it is necessary for the plaintiff to allege that the delivery of goods was demanded from the seller B and to prove this fact by cogent evidence. It is only after such demand that the question, as to the time within which it should be complied with, shall arise. This allegation was not made by the respondents and therefore no issue could be raised. The learned counsel for the respondents, however, argued that this plea was raised during the course of the trial of the suit, and there was sufficient material on the record to decide this question in appeal. This contention is not correct. The attention of the learned judge below was never drawn to this contention. The respondents also were not aware of this plea. The evidence on this point is very meagre. Some questions were put to the witnesses of the parties by the counsel for the appellant in the trial Court but the respondents never got an opportunity to meet this plea. It is therefore desirable that the parties should have full opportunity to raise this plea in the pleading and to lead evidence in proof of this contention. Under the circumstances the decrees in the two suits are set aside. We remand both these suits for decision on merits. The Court below is directed to allow the parties to amend their pleadings to raise the plea under section 35 of Sale of Goods Act. The parties will be entitled to lead further evidence on it. Thereafter the learned Judge will consider the effect of further evidence and decide the matter on merits. The costs in both the appeals will be the costs in the suits. A. H. ?????????????????????????? ??????????????????????????????????????????????????????????????????????? Case remanded.