1990 PLP 1160 (SCMR)

5. Both the above sales were made to the respondents through M/s.Shakoor Zakaria & Company who acted as brokers.

6. As per practice and usage of the trade, the abovesaid "decorticated cottonseed cake expellers" contained 43 to 45% of oil and albuminoid and it was on this basis that the goods were being traded in the local and international markets and the appellants had also given an assurance to the respondents to this effect through the brokers. The payment of the price was also made on the basis of the goods of this quality and description. At the time of the sale the appellants had assured that the said goods were 100 per cent upto the mark so far as their quality, fitness as to the contents of oil and albuminoid were concerned and that they were fit for export as they were of the international standard.

7. On export of the gods to the United Kingdom, they were analysed a: was practice of the trade for oil and albuminoid and as per certificates sent to the respondents it was found that the contents of oil and albuminoid were highly deficient and did not conform to the standard and specification at which they were purchased on the assurance of the appellants. The defects in the good supplied by the appellants were immediately brought to their notice. through the brokers and in this connection Haji Abdur Rehman, Director of the appellants, was met. The said Haji Abdur Rehman, however, expressed his surprise and requested the respondents for a second analysis. This was accordingly done but the goods were fond more deficient in their contents.

8. On receipt of the second analysis reports, the respondents accompanied by the brokers approached the appellants and informed one Hasham that in view of the two analysis reports the goods which were sold by the appellants by prescription under its patent and trade name "decorticated cottonseed cake expellers" were; in fact "un-decorticated cottonseed cake expellers" or in the alternative were not the goods which conformed to the standard of the "decorticated cottonseed cake expellers" being highly deficient in their oil and albuminoid contents.

9. On the basis of the analysis reports and practice of the trade, the buyers of the respondents in the United Kingdom claimed damages from the respondents in Suit No.150 of 1964 to the extent of L.1,851.10.6 which was equivalent to Rs.24.773/1.74. Besides the above, the respondents also suffered ac. actual loss of Rs.8;t74.10 on bonus vouchers, thus bringing the total loss to Rs.32,947/11.74. In Suit No.162 of 1964, the respondents paid damages to their buyers in the United Kingdom a clam of 1.1.384.17.9 which was equivalent to Rs.18,369.44. The respondents were also deprived of their bonus voucher entitlement of the value of Rs.3,774, which came to Rs.6,896.90. The total loss thus suffered by the respondents was Rs.25,266.34 (Rs.18,369.44 + Rs.6 896.90)

10. The demands of the respondents as to their claims having not been met by the appellants, they were compelled to approach the Court through the present suits. The appellants contested the suits and the stand taken by them in their written statements mainly was that the sales were made through a broker who gave a sale note as to the transaction without any guarantee as to the percentage or analysis and that there was no stipulation about the export of the goods; that the sale was made for the ready delivery as per sample and further that there was no practice or usage as alleged nor that the goods sold contained 43 to 45% oil and albuminoid.

11. The suits were tried by the High Court in the exercise of its original jurisdiction and after framing the necessary issues recorded the evidence produced by the parties and vide judgments dated 14‑10‑1968 and 16‑10‑19'9 decreed the suits with costs and running interest at 6%.

12. The appellants' Letters Patent Appeals bearing Nos.184 of 1968 and 158 of 1969 were dismissed on 20=5‑1979.

13. Leave in both the cases was granted to consider the legality and propriety of the judgments of the Courts below.

14. The learned counsel for the appellants contended before us that the findings of the Courts below about the percentage of the contents of the goods were erroneous because the contract was specifically to the contrary, in express terms to the effect that the percentage of oil was not guaranteed and, therefore, the requirement as to the quality could not be insisted upon by the Court. It was further submitted that no evidence worth the name was produced by the respondents to establish that the appellants were made to know that the goods were to be exported to a foreign country and that they were not sold within the country.

15. The only question to be considered in this case is whether the percentage of oil, etc. in the goods supplied was guaranteed. The answer obviously is in the I negative in that there is overwhelming evidence on the record, which most probably escaped the notice of the learned Judges of the High Court, that the percentage was un-guaranteed. The contracts to supply the goods were entered through a broker, the parties having not met each other at all. The contract was concluded through sale notes dated 14/15‑7‑1961. These sale notes have not been disputed by the respondents. In these sale notes it has been given out in most unambiguous terms that the goods are "un-percentage guarantee"‑. The fact that the commodity was not guaranteed has been admitted in the case of Civil Appeal No.K‑309 of 1.980 by the respondents who in reply to a letter to the appellants have stated: "In reply to your letter of 21st instant, we have to state that though the contract was for (torn) delivery and without any analysed guarantee, the goods were lifted by us on the assurance of the broker that your goods would be of the standard quality. Price was paid on the basis of the goods being of 43% and your statement that we examined samples has no weight because samples do not show the percentage of the goods. You had confirmed to the broker on telephone that your goods will not be of low quality but you will not give any written guarantee. Your presem statement, therefore, is contrary to facts and will be (torn) by the broke: at the proper time and place." The other material piece of evidence in this case is the statement of Abdul I Shakoor, the broker, who appeared as a witness of the respondents. The perusal of his statement shows that the percentage of oil, etc., in the goods sold was not guaranteed by the appellants at the time of sale. He also deposed that the Bengal Oil Mills Ltd. had not sent him any sample of these goods. Thus it has wrongly been held that the percentage was guaranteed.

16. As for the question that the goods were meant for export to United Kingdom, no evidence has been made available by the respondents to establish that the goods purchased by them were for export to United Kingdom. Similarly, there is no evidence worth the name that the goods were not sold within the country.

17. The view that we take in the matter is that the respondents have failed to establish their case. Both the appeals are, therefore, allowed, the judgments and decrees of the High Court are set aside, both the suits stand dismissed but there is no order as to costs. A.A./B‑158/S Appeals accepted.