P L D 1956 Sind 17 (PLP)

Muhammad Ibrahim P. W. 3 who is a partner in the firm Haji & Co., stated that he had never heard of cloth bearing No. 8095 prior to seeing the 5 pieces mentioned by P. W. 1 and that he had compared one piece baring No 8095 with that of No. 2002 and found that there was difference in their finish and quality. The defendants examined Habib D. W. 1 and Nmail D. W. 2 Habib D. W. 1 is one of the defendants and supported the allegations in the written statement. Ismail D. W. 2 is a partner, in the firm of Abdul Habib Ahmed & Co. He stated that the defendant had contracted to purchase one lac yards of Japanese Printed pyjama from his firm. The defendants, however did not take delivery on the plea that the plaintiffs had backed out of their contract and that on account of a fall in prices his firm suffered to the tune of about Rs. 20,000 and they were compensated by the defendants. The defendants also put in a number of documents which have been exhibited and will be considered at appropriate places. Decision with reasons thereof. Issues Nos :‑ 1. (a) Was the number 2002 the essence of the contract 3. (a) Was the presence of No. 8095 or the absence of No. 2002 a breach of condition of the contract ? The contract between the parties is embodied in Exh. 6/1. The following portions therein are material "Name of Article . . . Striped Japanese Printed Pyjama as per sample. Quality . . . Japan Striped No. 2002". The contention on behalf of the plaintiff is that they had contracted to purchase Japanese printed pyjama baring No. 2002 while the defendants contend that they had stipu lated to supply Japanese printed pyjama as per sample of the same quality as Japanese striped .No. 2002. Accord ing to the plaintiff, therefore, what they had contracted to purchase was Japanese printed pyjama bearing No. 2002 while according to the defendants they had to supply Japanese printed pyjama bearing any number so long as its quality corresponded to that of Japanese striped bearing No. 2002. It is a well accepted principle that a contract in such cases must be strictly and literally construed and no deviation therefrom is permitted. This follows from the very case cited by Mr. Dingomal. Reference may be made t0 the cases Messrs. Ltd. v. Morrison's Export Co. Ltd. (1939 All Eng. L R Vol. 1 p. 92.), 4foore & Co, Ltd. v. Landauer & Co. ((1921) 2 K. B. p. 519.), Manbre Saccharine Co, v. Corn Products Co, (1919 K. B. Vol. 1 p. 207), Edmund Bowes J. B. Martian W. L. Kent v. Charles Shand Alexander Shand & R. A. Robinson (1877 App. Cas. Vol. 2 p. 455.), Arcos Limited v. E. A. Ronasen & Son (1933 App. Cas. 470.) and The Bombay United Merehaht's Company Ltd. v. Doolubram Sakulchand & Purshotam Javer (1 L R 12 Bom. 50.). It is clear from a mere perusal of the contract that it was not essence of the contract that the cloth should bear No. 2002. It was enough if the cloth was according to the sample and was of the same quality as cloth No. 2002. Mr. Dingomal contended that the defendants had contracted to purchase Japanese Printed Pyjama 2002 from Abdul Habib Ahmad & Co., and consequently they must be deemed to have sold Japanese Printed Pyjama 2002 to the plaintiff. The contention is ingenious but not convincing. It is true that the defendants had contracted to purchase Japanese Printed Pyjama bearing No. 2002 as is clear from Exh. 14 but contract in dispute Exh. 6/1 cannot be interpreted in the light of Exh.

14. A person who contracted to purchase Japanese Printed Pyjama 2002 may reasonably contract to sell Printed Pyjama of the quality of 2002. The contract Exh. 14 would cover contract Exh. 6/1 but no vice virsa. The issue 1 (a) must be decided in the negative and it has to be held in regard to issue 3 (a) that presence of No. 8095 or absence of No. 2002 was immaterial so long as the article offered was of the same quality as that of No. 2002. The issues are decided accordingly in favour of the defendants. Issue Nos. :‑ 1. (b) Were the goods No. 8095 offered for delivery not in accordance with the contract ?

4. Did the goods conform to the quality and description of the sample by which they were sold and the value of the goods in the market did not vary because of its bearing No. 8095 and not No. 2002 ? It has been seen above that according to the contract Exh. 6/1 the defendants had to supply striped Japanese printed pyjama as per sample and the cloth must be of the quality of 2002. The samples have not been produced in Court by the plaintiffs, although they mentioned samples of the contract goods among the documents on which they place reliance. The importance of samples was minimized by Hafiz Wali Muhammad P. W. 1 in his examination‑in- chief. He stated that sample was relevant only in relation to design and colour. In cross‑examination the witness stated that the sample that had been shown to him had been taken back from him on the plea that it would be sent to the manufacturer so that cloth of the same design could be supplied. This, however, does not appear to be true. The contract was entered into on 7th March 1950, and related to the shipment of February/March 1950. It means that at the time of the contract the goods must have been loaded and there was no question of any sample being sent to the manufacturer. There was no allegation in the plaint that samples had been taken back by the defendants. On the other hand samples were mentioned along with original contract and other documents which were relied upon by the plaintiffs. The samples, to my mind, have been purposely withheld by the plaintiffs. The plaintiffs also tried to show by examining Muhammad Ibrahim P. W. 3 that the quality of the cloth sought to be delivered was inferior to that of cloth bearing 2002. On the joint request of the parties four pieces of cloth, Articles A, B, C and D were sent to General Superintendence Co. (Pakistan) Ltd., for comparison and report whether the quality of cloth Article. A was the some .as the quality of cloth Articles B, C and D. Article A is one of the five pieces of cloth which had been taken by the plaintiffs from the consignment out of which the defendants were to supply the contracted goods to the plaintiffs. Article 8 is a piece of cloth bearing No. 2002 filed by the plaintiffs. Article C is striped pyjama cloth bearing No. 2002 while Article D is Swetch Book containing samples of 2002. Articles C and D had been supplied by the defendants. The report of the expert is Exh. 12/A. It is to the effect that all the four pieces may be regarded as cloths 'of similar construction and quality. No objection was filed by any party to this report. There is no allegation that the cloth offered was not in accordance with the sample. On the other hand it has been established that the cloth offered was of the same quality as cloth bearing No. 2002. . I have, therefore, come to the conclusion that goods offered were in accordance with the contract and conformed to the quality and description given in the contract between the parties. Issue No.: 3. (b) Was the plaintiff entitled to reject the goods ?

5. Who is responsible for the breach of the contract and when did it take place ? The above issues have to be answered in the light of decisions given above. It having been held that the goods offered were in accordance with the contract, there can be no doubt that the plaintiff was not entitled to reject the goods and the responsibility for breach of the contract lay squarely on the shoulders of the plaintiffs. Issue No. 2.‑Did the cloth bearing No. 2002 have established at reputation and great demand in the market at the relevant time ? Hafiz Wali Muhammad P. W. 1 stated that cloth bearing No. 2002 has a reputation in the market and is well known for its quality. He is supported in this respect by Hussain Ali P. W. 2 and Muhammad Ibrahim P. W.

3. These state ments have not been controverted by the defendants. The issue is answered in the affirmative. Issues Nos. :‑

6. Was the defendant put to a loss of Rs. 32,500 by the failure of the plaintiff to take delivery of the contracted goods ? Is the defendant (Plaintiff'?) liable to pay this or any other sum to the defendant ?

8. Did the defendants refuse to take delivery of the goods from Messrs. Abdul Habib & Co. If so, what is its effect on this suit ? Habib D. W. 1 stated that he had purchased one lac yards of Japanese printed pyjama from Abdul Habib Ahmad & Co., who offered them cloth bearing No. 8095. It is this cloth that he offered to the plaintiffs towards fulfillment of their contract with the plaintiffs. The plaintiffs, however declined to accept the goods and he on his part did not lift the goods offered by Abdul Habib Ahmed & Co., Habib Ahmed & Co., thereupon auctioned the goods and the difference between the stipulated price and that which was realised at resale came to Rs. 20,

400. This sum of Rs. 20,400 was according to the witness paid to Abdul Habib Ahmed & Co. In cross‑examination the witness stated that he had paid the entire sum of Rs. 20,400 in cash. The payment was entered in the books of account but it has not been produced in this Court. Ismail a partner in the firm of Abdul Habib Ahmed & Co., supported Habib D. W.

1. In cross‑examination the witness admitted that he main tained regular books of account but had not brought them. From the evidence of these two witnesses it is clearly established that the defendants did not take delivery of goods from Messrs. Abdul Habib Ahmed & Co. But so far as payment by the defendant to Habib Ahmed & Co., is concerned the oral testimony is not corroborated by any documentary evidence. The price realised at re‑sale and amount actually paid by the defendants to Habib Ahmed & Co., is not relevant for the purposes of the decision of this case, and it is not necessary to record any categorical findings. The defendants are only entitled t4 the difference between the stipulated price and the price that was prevalent in the market on the date the plaintiffs refused to take delivery of the goods. In this connection reference may be made to the cases A. Yule & Co. v. Muhammad Hossain and others (I L R 24 Cal. 124), Sundar Singh-Jit Singh v. Gulab Singh‑Kalyen Singh (A I R 1927 Lah. 269) and Erroll Mackay v. Maharaja Dhiraj Kameshwar Singh and another (A I R 1932 P C 196). It is common case of the parties that the plaintiffs had to pay at the rate of Rs. 1‑4‑3 per yard. The question that remains to be decided is, what was the current price of the goods that were being offered by the defendants to the plaintiffs. According to the defendant Habib and his witness Ismail D. W. 2 the market rate was 0‑13‑0 per yard. This evidence, however, is interested. Hafiz Wali Muhammad P. W. 1, the proprietor of the plaintiffs' company, has himself admitted in cross‑examination :‑ "The price of the goods that were being offered to me by the defendants ranged from 0‑14‑0 to 0‑16‑0 per yard". He further admitted that the price of cloth bearing No. 2002 was Re. 1 per yard at the time. No doubt the statement of the plaintiff is as interested as that of the defendant and his witness. But in absence of any independent evidence on behalf of the defendants there is no alternative but to accept the statement of the plaintiff Hafiz Wali Muhammad and I hold that the price of cloth bearing No. 2002 or of the quality of 2002 was Re. 1 per yard at the time the goods were delivered to and refused by the plaintiffs. The defendants are entitled to difference between Re. 1‑4‑3 and Re.1 i.e., 0‑4‑3 per yard. The contract was for 80,000 yards. The amount to which the defendants are entitled to get from the plaintiffs by way of damages would come to Rs. 21,

250. I hold that the plaintiffs are liable to pay Rs. 21,250 to the defendants on account of the damages suffered by the defendants. Issue No. 7.‑Is the plaintiff liable to pay Rs. 189‑13‑6 as price of 5 pieces and Rs. 75 as survey fee ? Hafiz Wali Muhammad the virtual plaintiff has admitted that he got 5 pieces and consequently the plaintiff has to pay Rs. 189‑13‑6 towards price of these pieces. Issues No. :‑

9. Is the plaintiff entitled to the refund of deposit money with interest ?

10. To what relief if any are the parties entitled and what decree should be passed ?

11. General. In view of the findings recorded above the plaintiff is not entitled to a decree against the defendants while the defendants are entitled to get Rs. 21,250 plus Rs. 189‑13‑6 minus Rs. 10,125 already paid by the plaintiffs to the defendants. The result is that the suit is dismissed with costs while the counter claim to the extent of Rs. 11,314‑13‑6 is allowed in favour of the defendants against the plaintiffs with pro portional costs. Decree accordingly. A. H. Suit dismissed.