12 L D 1966 Dacca 181 (PLP)

K. M. HASAN, J.‑‑`This is appeal is at the instance of the plaintiff whose suit was decreed in part. According to the plaintiff the defendant, an Oil Grinding Mill, had business transaction with the plaintiff firm. On 24th April 1952, there was an agreement for sale of 1,125 bags of mustard oil seeds at the rate of Rs. 24‑4‑0 per maund. The said agreement was subsequently ratified and acted upon by the defendant Mill by taking delivery of 565 bags of mustard seeds on different dates with effect from 28th April 1952, up to 12th May 1952. A total quantity of 565 bags of mustard oil seeds were lifted at the rate of Rs. 24‑4‑0 per maund as detailed in Schedule A of the plaint. While the goods were being lifted the d9fendant made another contract with the plaintiff for another 1,000 bags of mustard seeds at the rate of Rs. 24‑8‑0 per maund on 2‑5‑52. 565 bags of the first contract were lifted up to 12th May 1952, but as from henceforward market price showed a downward tendency the defendant did not take further delivery of the contracted goods in spite of the repeated requests by the plaintiff. The defendant made payments for 310 bags only by cheque but the same was dishonoured by the Bank but encashed after subsequent arrangements. On 20‑5‑52 the defendant issued a cheque upon the United. Bank of India,' Dacca Branch for a certain sum in favour of the plaintiff towards the payment of the Bill No. 68 for price of 130 bags lifted on 5‑5‑52 but the same was also dishonoured. In this way there was an outstanding amounting to Rs. 12,643‑8‑

3. The plaintiff sent a Registered notice with acknowledgment due on 4‑7‑52 to the defendant through the plaintiff's lawyer requesting the defendant to take delivery of the remaining 1560 bags of contracted goods within 48 hours from the receipt of the said notice and ' that in default the goods would be sold in public auction. The said notice was received by the defendant on 7th July 1952 but the defendant did not comply with the requirements of the said notice. Thereafter the plaintiff advertised the sale of the goods, by a public auction on 21st July 1952, in the Daily Morning News of Dacca intimating that the sales was going to be held on the 24‑7‑

52. The defendant sent a reply on 24‑7‑52 challenging the statement in the notice. The auction was held on 24th July 1952 at the appointed hour and the goods were sold at the rate of Rs. 16‑2‑0 per maund whereby the plaintiff was able to gather a sum of Rs. 18,344 and Rs. 32,777‑4‑

6. After deducting the said price the defendant was liable to the plaintiff to the extent of Rs. 26,266‑15‑9 and after adding‑the price of the bags lifted the total claim came to Rs. 38,910‑8‑0 plus compensation at the rate of 6 % amounting to Rs. 2,431‑4‑4 making a total of Rs. 41,341‑12‑

0. The defendant contested the suit challenging the plaintiff's case that‑the contract was entered on behalf of the defendant by a certain broker and contending inter alia that the plaintiff's broker approached the defendant for sale of mustard seeds to the defendants that the contract was on the basis of the samples that the defendant lifted 565 bags of seeds which was found according to the sample and did not take the rest as it was not according to the sample; that there was no contract for one thousand bags for the second time that the defendant was not liable 'for any sum to the plaintiff excepting the price of some bags which had already been lifted minus some compensation to be payable by the plaintiff to the defendant.. The parties in support of their respective cases adduced evi dence both oral and documentary. The learned Subordinate Judge on consideration of the evidence came to the finding that there were two contracts, first was for 1,125 bags at the rate of Rs. 24‑4‑0 per maund, and the second was for 1,000 bags at the rate of 24‑8‑0; that the defendant was not liable for damages for not lifting the seeds as per the first contract entered on 24th April 1952, as there was no difference between the contract price and the price prevailing on the date of default (12‑5‑52), that defendant was liable to pay damages for the second contract in respect of 1,000 bags for not lifting the same as there was differ ence between the contract price and the price on the date of default, and in this view of the matter decreed the suit in part. Hence this appeal at the instance of the plaintiff. It may be observed that there is no cross‑objection or any appeal filed by the defendant. So in this appeal we are only concerned as to the rate 'of damages and nothing more. Mr. Bose the learned Advocate, for the appellant has first contended that as per pleadings and also evidence in the record it cannot but be held that there was a sale of the goods and as such the defendant was responsible for the loss incurred by the plaintiff in the auction‑sale irrespective of the difference between the contract price and that prevailing on the date of default. In support he has first drawn our attention to the provision of sections 20 and 34 of the Sale of Goods Act. Section 18 of the said Act provides: "Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until/the goods are ascertained." Section 20 of the Act provides: "Where there is an unconditional contract for the sale of specific goods in a deliverable state; the property in the goods passes to the buyer when the contract is made, and it is imma terial whether the time of payment of the price or the time of delivery of the goods, or both is postponed." From the aforesaid sections it is clear that the goods must be specific, i.e., in order to pass title from the seller to the buyer goods must be specific and in deliverable state. If these two conditions are not fulfilled then the title of the goods does not pass by the contract from the seller to the buyer. The word specific goods has been defined in clause (14) of section 2 of the sale of Goods Act, as "(14) specific goods means goods identified and agreed upon at the time a contract of sale is made." From the aforesaid two sections it is further clear that title will pass from the seller to the buyer irrespective of the time of payment of price or the time of delivery of goods when there is unconditional contract for sale of goods, identified and agreed upon at the time of the, contract of the sale and are in a deliverable state. Section 34 of the Act provides as‑-- "(34) A delivery) of part of goods, in progress of the delivery of the whole, has the same effect, for the purpose of passing the property in such goods, as a delivery of the whole but a delivery of part of the goods, with an intention of severing it from the whole, does not operate as a delivery of the remainder." From the above it appears when a part delivery of the goods is made in progress of delivery of the whole the first delivery will have the effect of passing the property in such goods, as delivery of whole, but the delivery of a part of the goods with an intention to severing it from the whole, does not operate as delivery of the remainder or in other words does not pass any title in the remainder to the buyer. The word "whole" in this section means the goods identified as provided in section 20 of the Act or in other words separate distinct, entity. Mr. Bose the learned Advocate for the appellant has contended that according to the ,pleadings; the notice and the evidence specified goods were contracted for sale and were in a deliverable state, in other words the goods were in the godown where the defendant's agent went and entered into a contract . to purchase and the same was identified and as such the whole interest or whole title in the goods passed to the buyer and accordingly the defendant is liable for the loss incurred in this case after the auction sale on 24‑7‑

52. We have been taken through the written statement, pleadings, evidence and the notice served. We do not find anywhere any such assertion made in the plaint or in the evidence or in the notice that at, the time the contract was entered into the goods were in the gdown, were separated from the rest, were specified and were in a deliverable state. Though much stress has been given to the statements in paragraphs 3, 4 and 5 of the plaint, we only find that there was only a contract for sale. There is also statement in paragraph 6 of the plaint that the first contract was entered into on 24‑4‑52 and was subsequently ratified. So even according to the statement there was no complete sale but there was only a contract for sale. No title passed to the defendant from the plaintiff but there was only a contract that at certain rates the goods were to be supplied by the plaintiff within 15 days and that was to be taken delivery of by the defendant within certain days. Of course there was no time mentioned in respect of second contract for 1,000 bags of goods. We accordingly find that the goods were not identified and agreed upon at the time of the contract of sale. The second contention that the delivery of the part is delivery of the whole is also misconceived. No case has been made out either in the plaint or in the evidence that the goods were made ready and specified and out of the total goods part delivery was taken as delivery of the whole. This point is absolutely a new point and the defendant was not asked to meet this point. Hence we find that the title in the goods did not pass from the plaintiff to the defendant. The next ground is about the rate of compensation. Mr. Bose has argued that the plaintiff is entitled to get the difference in the contractual price and the sale price. On the other hand it is contended for the respondent that the plaintiff is entitled to get the difference between the contract price and the price prevailing on the date of the breach of the contract. In support of this contention Mr. Bose, has relied on the case of A. K. A. S. Jonal v. Moola Dawood Sons & Co. (AIR1915PC48) the case Erroll Mackay v. Maharajadhiraj Kumeshwar Singh and another (36CWN1024) and A. S. Mackeritch v. Nava Commar Roy (7 C W N 431). In the case reported in A I R 1915 P C there was an agreement for sale of certain share to be lifted by 30‑12‑1911. The shares were not lifted but sub sequently after certain preliminaries the shares were sold. Thereafter the plaintiff instituted a suit for recovery of damages i.e., the contractual price and the price prevailing on the date of 30‑12‑1911. ‑The defendant entered appearance and contended that the defendant was entitled to reduction of the damages as the plaintiff by selling the share, subsequently on 30th Nov ember 1911 made some profits. The defence contention was rejected. The following observation of their Lordships may be quoted for the purpose: "The question therefore is the general question and may be stated thus: In a contract for sale of negotiable securities, is the measure of damages for breach the difference between the contract price and the market price at the date of the breach with an obligation on the part of the seller to mitigate the damages by getting the best price he can at the date of the breach or is the seller bound to reduce the damages, if he can, by subsequent sales at better prices? If he is and if the purchaser is entitled to the benefit of subsequent sale, it must also be true that he must bear the burden of subsequent losses. The latter proposition is in their Lordships' opinion impossible, and the former is equally unsound. If the seller holds on to the shares after the breach, the speculation as to the way the market will subsequently go is the speculation of the seller, not of the buyer, the seller cannot recover from the buyer the less below the market price at the date of the breach if the market falls, nor is he liable to the purchaser for the profit if the market rises. It is undoubted law that a plaintiff who sues for damages owes the duty of taking all reasonable steps to mitigate the loss consequent upon the breach and cannot claim as damages any sum which is due to his own neglect. But the loss to be ascertained is the loss at the date of the breach. If at the date the plaintiff could do something or did something which mitigated the damage, the defendant is entitled to the benefit of it. Staniforth v. Lyall, is an illustration of this. But the fact that by reason of the loss of the contract which the defendant has failed to perform the plaintiff obtains the benefit of another contract which is of value to him, does not entitle the defendant to the benefit of the latter contract." The similar view has also been expressed by their Lordships of the Privy Council in the case reported in 36 C W N 1024 where it has been observed: "If there was an available market for the goods at the date of breach the damages must be based on the difference between that market price and ,the contract price" and this matter has also been elaborately developed in the case reported in 7 C W N

431. Mr. Bose has relied on the case of M. S: Doraiswami Mudaliar v. P. K. M. Subbanna Chettiar and another (A I R 1927 Mad. 880) and the case of Moll Schette & Co. v. Luchmi Chand (I L R 25 Cal. 505) and the case reported in I L R 22 All.

55. We have gone through those cases and we find the facts and circumstances are quite different from this case before us and this point was not under consideration in those cases. Having in view the above principle of law enunciated by the Privy Council as stated above let us see when the breach of contract took place. As regards the first contract it is an admitted case of the parties that the goods were to be lifted within 15 days from the date of the contract. The contract was at first entered into on 24‑4‑52 and according to the plaintiff's case it was ratified and acted upon' by the parties, by taking delivery of the goods by the defendant with effect from 28‑4‑

52. So according to the agreement if 15 days are calculated from 28‑4‑52 then the last date would have been 12‑5‑52 and the breach of contract was on that date. As to the second contract for sale of 1,000 bags of mustard seeds it does not appear that any date was fixed by which the goods were to be lifted. The learned Subordinate Judge rightly held that in such circumstances the goods would have been lifted within a reasonable time and in our view as the price of goods changes from day to day the said 15 days would be the reasonable time by which 1,000 bags of seeds would have been lifted by the defendant. As the second contract was entered into on 2nd May 1952, the last date was the 16th May 1952, ‑i.e., the breach of contract was from that date. In the aforesaid view we are to see what was the price of the mustard seeds on those days, namely, 12‑5‑52 and 16-5‑

52. According to the evidence of plaintiffs witness No. 2 Habib Abdul Karim who was the General Manager of the plaintiff company from September 1950 to October 1952, the price of mustard seeds since 3rd week of May, i.e., from 22nd or 23rd the price of mustard seeds began to fall ranging from Rs. 21 to Rs. 16 or

17. So there was no fall of price on the days of breach of contract as found by us and the learned Subordinate Judge rightly dismissed the plaintiff's claim so far as the first contract is concerned. But as regards the second contract the learned Subordinate Judge was of the view that according to the evidence of the plaintiff witness No. 2 in cross‑examination the plaintiff witness No. 2 sold 51 bags on 15‑6‑52 at the rate of Rs. 20‑8‑0 per maund and on 2‑7‑52, 20 bags were sold at the rate of Rs. 20 per. maund. However, relying on the chart showing the price of mustard seeds the learned Subordinate Judge decreed the plaintiff's suit at the rate of Rs. 20 per maund. There is no cross‑objection. In the aforesaid facts and circumstances and the evidence we do not find any thing to interfere with the decree passed by the learned Subordinate Judge. The appeal is accordingly dismissed with costs. TAIB‑UD‑DIN TALUKDAR, J.‑I agree. S, Q. Appeal dismissed.