P L D 1954 Sind 32 (PLP)

INAMULLAH, J.‑This is a suit for recovery of Rs. 2,550 paid as deposit money as per contract dated 8th November, 1951. The plaintiffs agreed to purchase from the defendants 25 bales of Grey Cotton Yarn 10/1 (Ten Single) " Burna Brand " of Italian Origin. The plaintiffs found after the arrival of the goods that it did not correspond to the description given in the contract. The goods offered did not bear the label of " Burna Brand." The plaintiffs accordingly on 20th December 1951, rejected the goods and demanded the refund of the deposit. The main contention of the defendants was two‑fold. In the first place the defendants relied on clause (11) of the terms of the contract according to which the defendants alleged that the plaintiffs were bound to take delivery of the goods in the condi tion that the defendants received from Italy. In the second place it was contracted that the quality of the goods was the same as contracted for and that the defendants were willing to affix the labels of " Burna Brand " on the goods. The defendants also put a counter claim and claimed Rs. 200 as damages after deducting the deposit money. The pleadings between the parties gave rise to the following issues :‑

1. Were the goods offered by the defendants of the same description, quality and type as mentioned in the contract ?

2. Is clause 11 of the contract against the provision of Sales of Goods Act or against public policy, void and ineffective ? If so, what is the effect of the same on the subject‑matter of the suit ?

3. Were the plaintiff bound to take delivery of the goods in the condition in which the same were received by the defendants ?

4. Is the omission of " Burna Brand " a material omission ?

5. In view of the defendants' offer to get the goods labelled Burna Brand " were the plaintiffs entitled to reject the goods?

6. Who has committed the breach of contract?

7. What amount, if any, is due by the defendants to the plaintiffs? 8‑ What amount of damages, if any, is due by the plaintiffs to the defendants?

9. General. My findings are as under :‑ Issue No. 1‑In the negative. Issue No. 2‑Clause 11 of the contract is not against the provisions of Sales of Goods Act or against the public policy void or ineffective. Issue No. 3‑In the negative. Issue No. 4‑In the affirmative. Issue No. 5‑In the affirmative. Issue No. 6‑The defendant. Issue No. 7‑The plaintiffs are entitled to the refund of de posit money. Issue No. 8‑The defendants are not entitled to any damages from the plaintiffs. Issue Nos. 1 and 4.‑The relevant portion of the contract between the parties dated 8th November 1951, reads as under :‑ " Description of Goods : Grey Cotton Yarn 10/1 (Ten Single) " Brand Burna " of Italian Origin." It is clear from the above contract that the cotton yarn was to be of a specified brand. The defendants in para. 5 of their written statement stated : "The goods were of the same description, quality and brand, but the suppliers had omitted to affix labels bearing mark `Burna Brand: It is clear from the written statement that there was something missing from the description given in the contract, namely, that the goods did not have the labels of 'Burns Brand' affixed to them. The defendants' witness Suleman stated in the examina tion‑in‑chief: " I ordered goods of the same description as mentioned in the contract Exh.

6. The only difference between the con tracted goods and the one that I have offered to the plaintiffs was that it did not bear the label of 'Burns Brand'. The defendants broker Daud was examined by the defendants in this Court. He stated in cross‑examination "'Burns Brand' is well‑known in the market." The contention of the defendants was as their Manager Suleman stated in this Court that he did offer the same count that was agreed upon and also the yarn made in Italy and therefore it was sufficient compliance with the contract. He stated it this Court: " Each bundle which I offered to the plaintiffs did bear made in Italy, 10 X 1 grey cotton yarn'. Similarly also the bales beat the mark of 'made in Italy 10 Single.' " He further stated that the goods that come from outside are sold by their counts whether it is 10 single, 10 double, 20 single or 20 doubles. The label has no significance in market. But it is clear from his statement in the cross‑examination that differ ent brands of 10 single yarn made in Italy have different prices. It is also clear from his statement in the cross‑examination that there are number of brands that come from Italy‑ He stated that "'Chand Tara' brand of yarn also comes from Italy ; Rose Factory brand also comes from Italy as well as from Egypt. Tratra brand also comes from Italy and several other brands of yarn also come from Italy." He further stated there is difference in prices of different brands of 10 single yarn manufactured in Italy. It is clear from his statement in cross examination that the brand of a yarn has a great significance. in the market, Most people are not expert dealers in yarn who can differentiate bet ween different brands of 10 single count manufactured in Italy. They are guided in their purchase by the brand affixed to the yarn. Suleman defendant's witness was asked in cross‑examination a question. `If a customer were to ask you to give him 10 single yarn without specifying the brand, what will you give him'? And to this he replied, 'I will produce all the samples of 10 single'. It is clear from the answer that the buyers will be wildered after seeing the different samples of 10 single yarn. He would not know what to do unless he is expert dealer in yarn, which most people are not. He would naturally ask for the brand which he may have known; or for which he may have come to make a purchase. It is clear from the above that 'Burns Brand' has a significance in the market and it is a particular description of one of 10 single counts of cotton yarn manufactured in Italy. The plaintiffs for the reason given above could not be bound to take delivery of the goods without the label of 'Burns Brand'. The omission of Burna Brand' was a material omission. This has a special meaning to thousands of customers who were not experts in cotton yarn and who purchase the goods by brand. The defendants' witness has stated, as already referred to, that "each bundle which I offered to the plaintiffs did bear 'made in Italy, 10/1 grey cotton yarn". This description can also apply to Chand Tara, Rose Factory, Tara and other Brands that are manufactured and come from Italy of 10 single count. Unless the goods bore the label of 'Burns Brand', it is hardly possible to say that it was of the same quality and type as the 'Burns Brand'. It may have been 'Chand Tara'. 'Rose Factory', or 'Tara' brand. Section 15 of the Sales of Goods Act, 1930 lays down the law applicable to the sale of goods by description. It reads as under: "Where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description; and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description". "The failure of the seller to supply goods answering to description in the contract is total failure to perform it, and not merely breach of one term of it, There has therefore never been any doubt that the buyer is entitled to have an article at all events answering the description, even if he has been able to accept it, and is not bound to accept it or, having accepted it, may claim damages". (Mulla's Sales of Goods Act, p. 68). I therefore hold that the goods offered by the defendants was not of the same description, quality and type as mentioned‑ in the contract. I also hold that the plaintiffs were not bound to take delivery of the goods in the condition in which the same were received by the defendants. I further hold that the omission of Burna Brand' was a material omission. Issue No. 3.‑The contract dated 8th November 1951, has got some printed terms and conditions and para. 11 of the printed terms and conditions reads as under :‑ `

11. The buyers are bound to take delivery of the goods in the same condition and quality as received at sellers' hands". The defendants relied on this printed condition and contended that the plaintiffs were bound to receive the delivery in the condition that the goods had arrived. The contention of the defendants was that the plaintiffs were bound to take delivery of the goods without "Burna Brand" affixed to it: In my opinion the contract has to be read as a whole and the printed terms and conditions are general terms and conditions which can be modified by the special terms between the parties mentioned in the contract itself. The relevant portion on which the plaintiffs rely reads as under : "We, the undersigned buyers, hereby agree to purchase from you (the undersigned sellers) the under‑mentioned goods on terms and conditions specified below Description of goods.‑Grey Cotton Yarn 10/1 (Ten Single) "Burna Brand" of Italian Origin". It is clear from the specific terms of the contract that the plaintiffs bad agreed to purchase a particular brand of cotton yarn and the general terms of the contract cannot take away the specific agreement between the parties‑Para 11 of the printed agreement does not say "Irrespective of what may have been specifically agreed upon between the parties". In order that a party may take the advantage of a certain term he must show to the satisfaction of the Court that it was the intention of the parties to arrive at such term. In the present case reading the first portion of the contract quoted above, it is clear that at the time when the contract was entered into between the parties, the parties never intended to supply or receive anything except the `Burna Brand' of cotton yarn. The principle underlying section 15 of the Sales of Goods Act 1930 is very clear. The seller cannot rely on some vague and indefinite term of a contract to deny his liability under the law to supply goods according to the description. The commentary by Pollok and Mulla on the Indian Sales of Goods Act, 1590, Ed., at p. 69 reads as under : "It is by reason of this fundamental rule that clause in the contract in favour of the seller cannot be relied on by him if it tenders or delivers goods which are not of the stipulated description. He has failed to perform his contract entirely, and such clauses are construed as implying that the contract has been performed so far as delivering goods of the required description is concerned." In this connexion the observations of Lord Blackburn in 2nd Appeal Cases, pp. 445 at 480, that if the description of the articles tendered is different in any respect, it is not the article bargained for and the other party is not bound to take it, is also pertinent. The case of Shepherd v. Kain (24 R R 344.), is relevant to the point in question. In that case the ship was advertised to be sold as copper fastened to be taken with all faults without allowance for any defects whatsoever. The ship was only partly copper fastened and not what is described in the trade as copper fastened vessel. The buyer was entitled, it was held in that case, to reject or recover damages for the breach of the condition. In that case although the advertisement did mention that the ship was to be taken with all faults", yet the special and specific terms of the contract, namely, that the ship was copper fastened vessel, was not held to be modified by the general term. In the present case also I am of the view that the general printed term of the contract which was to be applicable to all contracts did not modify the c specific term of the contract between the parties that the goods was to be of a particular brand. The learned counsel relied upon Ramjivan Nevatia v. H. Bhikaji & Co. (26 Bom. L R 444). In that case by mistake in the contract the number of the bales was given as 139 and 141, while it should have been 739, 741 respectively. Their Lordships of the Privy Council held that as the numbers in the contract had no specific meaning in the market and were merely reference numbers, the numbers 139 and 141 merely clerical errors for 739 and 741 respectively, and did not amount to a warranty of the goods or indicate their quality or description. This case has no application to the present one. The learned counsel for the defendant relied upon the case of Taylor v. Bullan (82 R R 875.). In that case a teak built vessel was advertised to be sold, but it was found that it was no teak‑built. The question arose whether the seller could be held liable for breach of warranty in view of the following words in the contract. "The vessel and the stores to be taken with all faults as they now lie without any allowance for any deficiency in length, weight quantity, quality or any defect or error whatever." It was held in that case, distinguishing the case of Shepherd v. Kain (supra) already mentioned above, that the terms of the contract were very general so as to cover the fact that the ship was trot teak‑built. In the present case, as I have already pointed out, the case of Shepherd v. Kain will apply as the terms of clause 11 of the contract was not as general and extensive as the terms were in the case of Taylor v. Bullan. In Taylor v: Bullan the word 'whatever' faults made all the difference. I have already held that 'Burna Brand' has a special significance as distinguished from other brands of 10 single count manufactured in Italy. In the Privy Council case the numbers were only the reference numbers and had no meaning so far as the market was concerned. In fact this case helps the plaintiffs. It is clear from the finding of their Lordships of the Privy Council that where a certain description can have a significance in the market, it would amount to a warranty. I therefore hold that the plaintiffs were not bound to take the delivery of the goods in the condition in which the same were received by the defendants. Issue No. 2.‑The learned counsel for the plaintiffs has not been able to show as to why this clause is against the provisions of Sales of Goods Act or against the public policy. I have however held in Issue No. 3 that although it may not contravene the Sales of Goods Act or the Contract Act, it has to be ignored for the purpose of the contract dated 8th November 1951. I hold this issue, in view of the fact that the learned counsel for the plaintiffs has not shown any provisions of law as to how it affects the Sales of Goods Act or the Contract Act, in the negative. Issue No. 5.‑It is clear under the terms of the contract that the goods to be supplied by the defendants was 'Grey cotton yarn 10/1 (ten single) 'Burna Brand' of Italian Origin. Under the terms of the contract the goods were to be shipped by a particular ship. The goods admittedly did not arrive by that particular ship hearing the `Burna Brand' label. If it did not bear the particular brand when it arrived from Italy, the question of affixing the label at Karachi does not arise. In fact the request of the defendants to affix the label at Karachi was unwarranted by the terms of the contract. If the fact that the goods in question have been labelled 'Burna Brand' at Karachi was known to the prospective buyers at Karachi, they would have never bought the goods taking it to be non‑genuine. Under these circumstances the plaintiffs were justified in rejecting the offer of the defendant to put the label at Karachi. I decide the issue in the affirmative. Issue No. 6.‑In view of my finding on Issues Nos. 1, 3 and 4, I hold that the breach of the contract was committed by the defendants. Issue No. 7.‑The plaintiffs are entitled to the return of the deposit money. Issue No. 8.‑The defendants are not entitled to any damages as the breach was on their part. The suit is decreed as prayed for with costs. A. H. Suit decreed.