2000 PLP 729 (CLC)

(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose; Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. (2) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition 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 defect, which such examination ought to have revealed. (3) An implied warrant or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (4) An express warranty or condition does not negate a warranty or condition implied by this Act unless inconsistent therewith." A bare reading of the above said section would show that there is no implied warranty or condition as to the quality or fitness of any particular purpose of goods applied under a contract of sale. The rules as prevailed in the Englo‑Sexan Law as adopted in our country was held to be repugnant to the Injunction of Islam in the case of Wafaqi‑Pakistan v. Awamunnas 1988 SCMR 2041 with the direction that it should be provided in the Act that the seller is under an obligation to inform the buyer of the defects in the property sold at the time of the contract except where the defect is obviously known to the buyer. Resultantly, section 16‑A was enacted and inserted in the Sales of Goods Act; thereby providing that seller is obliged to inform the buyer of any defect in the property being sold. In the instant case, the contract of sale was concluded on the basis "as is where is", therefore, the purchaser cannot '4 be heard to say that the quality of rice was otherwise than what was presented at the time of sale. Again, as noted earlier, the rice itself being the evidence of its quality, it may not be possible to say anything about it because the same has been utilized by the petitioner and last but not the least the petitioner having obtained the total delivery of bulk of rice has ratified the sale and is, thus, estopped by his conduct to object thereto on the ground of quality. "

7. As far quantity, the rule of estoppel would apply more rigorously than objection as to quality. As noted earlier, the petitioner vide his letter dated 27‑5‑1998 unequivocally stated that the statements solicited from the bank would not bind them for any quantity commitment as according to the petitioner they had bought the bulk of rice on 'as is' basis. It would be appropriate to reproduce the contents of the above said letter so as to understand the import of commitment made by the petitioner:‑‑ "REF: CPL/1719‑(1) May 27, 1998: Chief Manager, National Bank of Pakistan, Corporate Branch, Lahore. Dear Sir: In continuation to the letter acceptance we signed today for purchase of rice. Kindly as discussed issue us a letter mentioning the quantity as 5000 tons, which is required to enable our bank to process a bank guarantee. The letter could simply mention that you have agreed to buy and Messrs Consumer Power (Pvt.) Ltd. has agreed to buy the stocks of 5000 tons of rice ex‑Karachi warehouse. The amount payable by Messrs Consumer Power (Pvt.) Ltd. in this regard is Rs.40,500,

000. Kindly issue this letter today only, enabling us to expedite purchase formalities. Thanking for your assistance. Sincerely, P.S. This letter does not bind you for any quantity commitment as we have bought it on as is basis and require this letter for our bank formalities only. Rafat H. Qadri." A plain reading of the above said letter would make it abundantly clear that the petitioner has clearly conveyed in writing to the Bank that even if the stocks of rice, ,ate, found to be less than 5.000 tons. it would not give rise to any action by the purchaser because, as already observed, he is buying it on 'as is basis'. The phrase 'as is basis' has a direct reference to the quantity of rice, therefore, the purchaser is estopped to raise any objections as to quantity of rice. The conduct of the representative of the petitioner may not also be lost sight of inasmuch as even according to despite the fact that he had come to know that quantity of rice as represented by the Bank was less, he continued to lift the same and not only that he retrieved it from the warehouse, but also they utilized the same, what more is required to say that the contract was ratified by the petitioners. A stipulation in a contract of sale with reference to goods which are the subject‑matter thereof tray be a condition or a warranty. This aspect has been provided and dealt with in section 12 of the Sale of Goods Act. sub‑clause (4) of section 12 of the said Act provides that whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract A stipulation may be a condition, though called a warranty in the contract. The consequence i.e. breach of warranty has been dealt with in section 59 of said Act, which provides as follows:‑‑‑ "

59. Remedy for breach of warranty.‑‑‑ (1) Where there is a' breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may (a) set up against the seller the breach of warranty in diminution or extinction of the price; or (b) sue the seller for damages for breach of warranty. (21 The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damages. In the instant case, the stipulation itself was as is where is basis, obviously no condition or warranty was attached with the contract. It was offered on 'as is where is' basis and was accepted on 'as is where is' basis, not only by circumstances but by express conduct in writing which is contained in letter dated 27‑5‑1998. As far the argument that the rice retrieved from the warehouses was found less in weight as certificated by the Government Certificated Professional Bulk Weighing Scale is a complicated question of fact which cannot be determined without recording evidence which exercise cannot be undertaken in the present summary proceedings. The conduct on the part of the petitioner, which spreads over a considerable period on the other hand, manifestly shows that he had accepted the goods aid had utilized the same. It is also provided in section 3? of the Sales of Goods Act, 1930 that where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may retect them, but if the buyer accepts the goods so delivered he shall pay for them at the contract rate. Obviously the goods were never rejected by the buyer. Again section 42 of the said Act deals with the acceptance of goods whereby it is provided that the buyer is deemed to have accepted the goods when he intimates to the seller, that he has accepted them or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. It is obvious from the conduct of the petitioner that he utilized the goods after having retrieved the same from the warehouse and this act of the buyer was definitely inconsistent with the ownership of the seller but, in any case, the buyer has not rejected the goods. The only other eventuality i.e. recovery of damages had been provided in section 59 of the Sale of Goods Act, 1930. As far the plea that the rice was purchased in pursuance of his representation contained in the advertisement soliciting the bids that a large stock of rice is available but in a point of fact the said stock was found deficient in its weight, suffice it to say that the advertisement soliciting the bids is to be read as a whole to understand the total bargain and the different clauses thereof cannot be read in isolation of each other. Needless to add that it was also provided in the same advertisement that the sale of rice shall be on the basis "as is where is".

8. In the circumstances, no case for interference is made out, therefore, this petition is dismissed. Sale of the rice is hereby confirmed. There shall however, be no order as to costs. Q.M.H./M.A.K./N‑181/L Petition dismissed.