P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑‑This judgment will dispose of Civil First Appeal No. 68/57 and Civil First Appeal No. 13/58 as both of them arise from the judgment of Mr. S. Moazzam Ali, Sub‑Judge First Class, Karachi in Suit No. 40/56 decided on 28th August 1957 and raise common questions of law and fact. The plaintiff‑appellants by a contract dated 13th February 1954 agreed to purchase from the respondents 16 tons (411 maunds) of palm oil fatty acid of German origin booked under L/C No. HKG 106 through Habib Bank, Dacca at the rate of Rs. 70 per maund ex‑godown Chittagong, February/March shipment. They paid Rs. 3,000 by cheque No. B1609/19 on Muslim Commercial Bank Limited as deposit towards the said transaction. The goods in dispute arrived in Chittagong on 26th June 1954 and the respon?dent offered them for delivery on payment of the balance of the price on 29th June 1954 with a request that the delivery should be taken by 1st of July 1954 otherwise the goods will be disposed of at the market rate on their account. The appellants inspected the goods in dispute on 28th June 1954 and informed the respondents by a letter dated 30th June 1954 (Exh. 5) as under:‑ "Our representative visited your godown to inspect the goods on the 28th and finding the quality to be much inferior to the original quality sample, forwarded to us by our Karachi office, and moreover, the contents of all the drums being in liquid form, our representative drew a sample in presence of your representative. This sample has been forwarded to our Karachi office and we have to inform you that further action shall be taken upon receipt of instructions from there." The respondents immediately attended to this letter and on the same day informed the appellants that the allegation that the goods were sold by sample is absolutely unfounded and the question of its being of inferior quality does not at all arise. They again informed the appellants that if they would fail to take the delivery by 1st of July 1954, the goods will be sold at their risk and respon?sibility. But the appellants failed to take the delivery by the time fixed and the respondents .by advertisement in `Imroz' Karachi dated 16th July 1954, Exh. 8, and `Pakistan Observer' dated 18th July 1954, Exh. 7, notified to the general public that the goods in dispute will be sold on 19th July 1954 at 10 a.m. at Jalil Hakim Mansion, Kurban Ganj, Chittagong at the risk of the appellants. On 15th July 1954, a copy of the advertisement in `Imroz' was forwarded to the appellants by letter Exh. 9 as information about the contemplated re‑sale. Thereupon, the appellants on 17th July 1954 by a letter, Exh. 10, informed the respondents that the goods offered were rightly rejected as the contract was based on a sample of palm oil fatty acid of German origin of white, colour whereas the goods offered were of dark brown colour. On 20th July 1954 the respondents by letter, Exh. 11, denied this allegation and stated as under:‑ "You made the deal only of German bleached palm oil fatty acid irrespective of any guarantee of colour or quality". The appellants jumped on this statement and by their letter, Exh. 12, dated 22nd July 1954 gave up their original position. They accepted that the goods were sold by description but added that the description of the colour given by the broker to them was white and the respondents' interpretation was incorrect. The respondents by their letter dated 24th July 1954, Exh. 13, repudi?ated this allegation and mentioned that the question of colour does not arise at all, because the goods were sold by description of a particular consignment and those very goods were offered to them. Thereafter, the respondents brought the goods to Karachi and on 2‑10‑54 sold them to Messrs Amin Corporation, Karachi at the rate of Rs. 52 per maund plus the charges incurred for bringing the goods from Chittagong to Karachi. They suffered in this deal a loss of Rs. 9,

433. After deducting the deposit with them of Rs. 3,000 they claimed Rs. 6,433 by notice, Exh. 14,, through Messrs Zari Mahmood, their advocates dated 4th October 1954 from the appellants and called upon them to pay it within a week. But before the respondents could bring a suit for damages the appellants filed suit No. 867/54 in the Chief Court of Sind, which was later on transferred to the District Court and was disposed of by Mr. Moazzamali. In this suit the appellants claimed Rs. 5,055 from the respondents including the sum of Rs. 3,000 paid by them on the ground that the respondents failed to supply 16 tons (411 maunds) of palm oil fatty acid of German origin, bleached white colour, and committed breach of the contract. The claim for damages was based on the differences of the contract price and Rs. 75 the then market price alleged to be prevailing in Chittagong market. The suit was hotly contested by the respondents. They denied that the agreement was in respect of palm oil fatty acid of German origin bleached white colour and pleaded that the sale was by description of a particular imported consignment and the good; offered to the appellants were according to the description contained in the contract, Exh.

1. They also pleaded that the appellants wrongly rejected the goods and committed the breach of contract and are liable to compensate them in the sum o1 Rs. 6,433 as damages on the re‑sale of the goods in dispute at Karachi. They claimed this amount by way of counter‑claim from the plaintiff‑appellants. On the pleading of the parties ‑six issues were framed. The learned Sub‑Judge came to the conclusion that the contract dated '13th February 1954 related to specific goods viz. palm oil fatty acid of German origin booked under L/C No. HKG 106 through Habib Bank, Dacca and not to "bleached white colour palm oil fatty acid of German origin". He further found that the goods offered for delivery on 26th June 1954 to the appellants were in accordance with the contract and the appellants committed the breach on that date. As regards the defendant‑appellants' counter?claim he found that as they did not establish the market rate of the goods in dispute in Chittagong and sold the goods at Karachi much after the date of the breach, they were not entitled to any damages whatsoever. From this judgment both the parties have come in two separate appeals. Plaintiffs' appeal is Civil First Appeal No. 68/57 and the defendants' appeal is Civil First Appeal No. 13/58. The question for determination in both the appeals is whether the goods in dispute were sold by description as contained in Exh. 1 or whether there was any understanding between the parties that the goods in dispute will be of bleached white colour. Mr. Abdul Aziz, the learned counsel for the appellants, has taken us through the entire evidence on record and strongly urged that the view of the learned Subordinate Judge that the goods in dispute were specified goods and not bleached white colour is erroneous. The learned counsel referred us to Exh. 11, in which the respon?dents stated that the goods agreed to be supplied were of "German bleached palm oil fatty acid" and contended that the goods in dispute should have been of white colour and the appellants rightly rejected the goods offered to them of dark brown colour. The controversy between the parties before us centred round the fact whether the goods described in the contract were German bleached palm oil fatty acid of white colour or German palm oil fatty acid irrespective of any guarantee of colour or quality. As far as the attack of the learned counsel for the appellants against the finding of the learned Subordinate Judge that the agreement between the parties was in respect of specified goods is concerned, we have no hesitation in holding that it is absolutely erroneous. Under the Sale of Goods Act, the sale of specified goods always refers to sale of identified and ascertained goods. In the present case, the agreement of sale between the parties did not refer at all to ascertained or identified goods but to goods which were being imported. But this finding does not help the appellants. The appellants brought the suit on the allegation that the agreement to purchase was according to the description of goods given in the contract, Exh. 1, but according to them these goods should have been of white colour. So, the onus of proving that the descrip?tion in the contract also included "bleached white colour" lay heavily on the appellants. We have already referred to the terms of the contract, Exh. 1: The description of the goods in it is as under: "Description of goods:‑ Palm oil, fatty acid of German origin booked under L/C No. HKG 106 through Habib Bank, Dacca". In this description the words "bleached white colour" find no place. Therefore, the appellants' counsel referred us to Exh. 11, the letter dated 20th July 1954 of the respondents and relied on the follow?ing portion as respondents' admission, "You made the deal only of `German bleached palm oil fatty acid'." He urged that the expression "bleached" clearly denotes that the goods would be of white colour, but this argument has no substance. If the appellants wanted to use the letter Exh. 1 as admission against the respondents, in law it was their duty to put it to the respondents; firstly, for bringing it to their knowledge that it would be used as such, and secondly for giving them an opportunity to explain it. Mr. Abdul Aziz, however, argued that it was not necessary to put this admission to, the respondents because they produced the letter and should have known that it would be used against them for purposes of admission. This argument has not impressed us. The relevancy and the necessity of putting admission to a party has been the subject‑matter of controversy in this Sub‑Continent for a long time but it is now a well settled rule o f law that a party's previous admission is relevant under section 21 of the Evidence Act and can be used as evidence against him if he fails to appear in the witness box. It is also well settled rule of law that the value of admission as a piece of evi?dence depends upon the circumstances of each case but ordinarily it is a valuable piece of evidence. It is also beyond doubt that an admission can be used as legal evidence against a party in cases where he has not made any inconsistent statement in the witness box. But where a party in the witness box has made a statement which runs counter to that admission then the salutary principle is that the previous admission cannot be used as legal evidence in the case against that party unless the attention of the party in cross-?examination was drawn to it and he was confronted with the specific portions of that statement which were sought to be used as admission. If that is not done it will not be available for use as legal evidence against that party. This view was expressed in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (A I R 1946 Lah. 65) in a Full Bench decision of Labore High Court. It is a well considered judgment but Mr. Abdul Aziz pointed out that in that case their Lordships of the Lahore High Court did not notice a Privy Council decision reported in 34 Indian Appeals P C

27. He referred us to a decision of the Allahabad High Court Mst. Ulfat and others v. Zubaida Khatoon and another (A I R 1955 All. 361), in which on the basis of the last mentioned Privy Council decision it was observed that the putting of an admission to a party is only necessary where its object is to contradict a witness and not for using it against him. With great respect we do not find ourselves in agreement with the Allahabad view and would prefer to follow the Lahore Full Bench decision on this point. The Allahabad case is clearly distinguishable because in that case the suit was brought on the basis of an admission and being in the knowledge of the other party was considered as sufficient for using it against him. Privy Council decision reported in 34 Indian Appeals is also distinguishable because there also the admission was filed with the documents and in the column "the purpose for which it was to be used" it was stated that it would be used as an admission against the other side. It will be useful here to reproduce the obser?vation of their Lordships in this connection at page 33 of the report: "There can be no ground therefore for the suggestion that the plaintiffs were not fully informed that this question of adoption would be raised, and that one, if not both, of these documents would be relied upon to prove the admission of Makund Singh upon this question of adoption contained in them. This, indeed was the only purpose for which they could have been given in evidence in these suits. One witness examined on behalf of the plaintiffs, Gur Dhan Singhji was on January 29, 1900, pointedly cross‑examined as to this deed of gift". In fact the explanation of the party on his alleged admission was considered and rejected. But no such procedure was followed in the instant case. Neither at any stage it was indicated that the letter Exh. 11 will be used, as an admission nor was it put to D. W. 1 Muhammad Siddiqui, the partner of the respondent firm, for explanation. On the contrary he was not put any question in respect of this letter and his attention was never drawn to the alleged admission. This witness in his statement stated in clear terms that: "my contract was not in respect of the bleached fatty acid", and made an inconsistent statement. In these circumstances it was incumbent on the appellants to put the alleged admission to this witness if they wanted to use it against the respondents. But,' as this was not done, it appears to us that the alleged admission) cannot be used against the respondents. Even otherwise the) alleged admission in Exh. 11 cannot be torn out from the context of the letter. The alleged admission is not unqualified and the respondents in their letter Exh. 11 clearly stated that: "You made the deal only of German bleached palm oil fatty acid irrespective of any guarantee of colour and quality and the same terms and conditions are mentioned in the contract executed which please note." It is thus obvious that the alleged admission as a whole does not help the appellants' case and is not of much evidentiary value for them. Mr. Abdul Aziz then took us through the entire oral evidence on the record to show that at the time when the contract, Exh. 11, was entered into, it was clearly understood that the goods in dispute would be of white colour but the evidence on this point is also divergent. P. W. 1 Abdus Sattar, the manager of the appel?lant firm, merely stated that they bad agreed to purchase bleached palm oil fatty acid under the contract. There is nothing in the statement of this witness to show that at the time of the contract it was agreed upon that the goods in dispute would be of white colour. He only stated that as the goods offered by the respon?dents were not according to the contract our representative took its sample arid sent it to us. That sample was of dark brown colour which was not according to the contract. But this witness admitted in his cross‑examination that under condition No. 9 of the terms of the contract the purchaser was not entitled to refuse delivery on the ground of inferior quality of the goods offered. He also admitted that it was also a fact that they had agreed to purchase the specific goods booked under L/C No. HKG 106 through Habib Bank, Dacca. He further admitted that the con?tract was not by sample. It will be noticed that the word "bleached" is not mentioned in the contract and the only explanation that he gave for not including this word in the contract was that it was understood in the description of the goods given in the contract: But this explanation is belied by the objection raised in the letter dated 30th June 1954, Exh. 5, addressed by the appellants to the respondents. No objection was taken in this letter about the colour of the goods and only two objections were raised: firstly, that the goods were of inferior quality and secondly, that they were in liquid form. Had this been a fact the appellant would have raised this objection at the earliest possible oppor?tunity. Therefore, no reliance can be placed on the oral testimony of this witness to hold that it was an implied term of the contract that the goods in question would be of white colour. It appears to us that the objection about the colour of the goods is an after thought and only occurred to the appellants when the respondents used the word "bleached" in advertisement (Exh. 8) and letter (Exh. 4). This is apparent from the contents .of their letter, Exh. 12, when they shifted their grounds and jumped and accepted the description of the goods in the above‑mentioned two documents. The evidence of P. W. 3 Qazi Ghulam Muhammad, broker of the transaction, that the agreement was entered on the basis of sample is of no value as P. W. Abdus Sattar admitted that it was not by sample. This is all the evidence produced by the appellants and it is so unsatisfactory that it cannot persuade us to come to a different conclusion from what the Subordinate Judge has arrived. Mr. Abdul Aziz as a last resort referred to the dictionary meaning of the word "bleached" and con?tended that anything which is bleached is always of a white colour. But this meaning is not universally applied. This expression has been used in the dictionary even for pale and dark colour and even if it is accepted that the word "bleached. "I was implied in the description, it will not be fair to decide the case on the dictionary meaning alone. Having regard to the fact that in the first instance the appellants rejected the goods in dispute on the ground that it was against the sample and was in the liquid form, and for the first time shifted their ground on receipt of the letter Exh. 11 that the sale was not on the basis of sample but of German bleached palm oil fatty acid, we have no hesitation in agreeing with the find?ings of the learned Subordinate Judge that the goods in dispute were acid by description contained in Exh. 1, and since the contract does not contain either the word ` bleached ' or the ` white colour ' the contention of the appellants that it was agreed upon that the goods in question would be of white colour has no merits whatsoever. On this view it is clear that the breach was committed by the appellants and they were not justified in rejecting the goods offered to them. The next contention of Mr. Abdul Aziz that as the res?pondents did not forfeit the amount of Rs. 3,000 they were bound to refund it, has no legs to stand on. One of the terms of the contract was that in case of breach the res?pondents were entitled to forfeit the amount of Rs. 3,000 and as this amount was paid as an earnest money there is no doubt in our mind that it was not necessary for them to give an intimation to this effect to the appellants. The very face that the respondents adjusted this amount in the damages claimed through their advocate's notice (Exh. 14) dated 4‑10‑1954, it is obvious to us that on the decision of their Lordships in Kunwar Chiranjit Singh v. Har Swarup (A I R 1926 P C 1) the appellants cannot claim the refund of this amount. We, therefore, find no merits in Civil First Appeal No. 68/ 1957 and dismiss the same. This brings us to the appeal filed by the respondents in respect of the damages claimed by way of counter claim. The learned Subordinate Judge awarded no damages to the respondents because they failed to prove the market rate of the goods in dispute on the date of breach and sold the goods in dispute at Karachi after a lapse of unreasonable time. Mr. Zari, the learned counsel for the respondents, however, strongly contended that it was not. necessary for the seller to prove the market rate of the goods in dispute on the day of the breach, and placed reliance on clause 6 of the contract, which according to him stipulated that in case of breach committed by the purchaser the sellers could resell the goods at their risk and responsibility at any time and at any place chosen by them. The learned counsel in this respect referred us to the case of Messrs Ralli brothers Ltd. v. Firm Messrs Bhagwan Dass Purmeshri Dass (A I R 1945 Lah. 35) in which a similar contention was upheld. In that case the learned Judges of the Lahore High Court observed as under: "Section 73 lays down the general principle of law where there is no provision in the deed of contract regarding re‑sale. The re‑sale, in such circumstances must take place within a reasonable time. The purchaser can, however, agree to give uncontrolled discretion regarding the time of the re‑sale to the sellers and they can also agree that they will not raise any objection regarding a re‑sale taking place after an unreasonable lapse of time. Such a clause though harsh does not appear to me to be unconscionable or illegal in mercantile contracts. There can be no question in a mercantile contract of one party being able to dominate the will of the other party or to over‑reach it. In such circumstances the Court cannot relieve the purchaser on equitable grounds of the effect of a harsh or onerous term to which he has agreed by means of a solemn written contract." ?????????? Now, in that case the term of the contract on the basis of which the learned Judges made the above‑mentioned observation was in the following terms:-- "The sellers are also authorised to resell the goods in whole or in part by public or private sale without any reference to the buyers and such re‑sale or re‑sales maybe carried out by the sellers at such time or times after such failure as they shall in their uncontrolled discretion think desirable and the buyers agree and undertake to pay to the sellers any deficit arising from such re‑sale or re‑sales together with all expenses incurred in connection therewith, and the buyers shall not be entitled to raise any objection to their liability to repay the said deficit and expenses on the ground that the said re‑sale or re‑sales was or were carried out after an unreasonable lapse of time or on any other ground whatever." "

6. The goods shall be deemed to have passed to the purchasers upon intimation of their arrival has reached the purchasers and shall thereafter be at the purchasers' sole risk. Should the purchasers from any cause whatsoever fail to take delivery of the goods on full payment of the same within three days from the date of intimation of the sellers, the sellers may at any time or times and place or places there?after without notice to the purchasers sell the goods or any part thereof as they may think fit on account and risk of the purchasers by public auction or private treaty. Upon any such re‑sale the purchasers shall pay to the sellers forthwith on demand any shortfall, deficiency or loss resulting from such re‑sale and all costs charges and expenses of and incidental thereto and the purchasers hereby waive all claims to any advantage to the sellers on such re‑sale etc., etc." It appears to us that the view taken in the Lahore decision cannot be applied on the terms of the contract in dispute. Neither under its terms any uncontrolled discretion to choose the time or place is given nor does it say that the purchaser on the re‑sale will not be entitled to raise any objection on it. It is correct that the seller could in this case dispose o the goods at any time or times and place or places without notice, but this expression cannot be taken to mean at any unreasonable time, otherwise the result would be that the seller may, with the deliberate intention of causing loss to the purchasers, postpone the re‑sale until the market has fallen. It seems to us that in order to avoid injustice this expression must be given equitable construction and taken to mean "within reasonable time." Even in the Lahore case it was pointed out that "at any time or times" means only "at any reasonable time." ??????????? The question therefore arises whether the re‑sale was effected within a reasonable time. The sale in this case was effected by Messrs Iqbal Brothers, the sellers, on 2nd October 1954 at Karachi for away from Chittagong after a lapse of about 21 months of the breach. According to the advertisements Exh. 7 and Exh. 8, the re‑sale was to be held on 19‑7‑1954 but there is no explanation why it was not effected on this date. Apart from this the respondents had sold the goods in dispute in Karachi, which certainly was not contemplated under the terms of the contract. We are not inclined to accept the contention that the expression place or places gave an uncon?trolled discretion of the choice of the place of re‑sale. In our opinion place or places meant only the place where the goods were to be supplied or some, other place near about that place. It was, however, urged by Mr. Zari that the respondents were quite justified in reselling the goods at Karachi because there was no available market in Chittagong. There is no such allegation either in the pleadings of the respondents or the evidence of D. W. 1 Muhammad Siddiq, 'the manages of 'the respondent firm. On the other hand, D. W. Muhammad Siddique admitted in clear terms that they brought the goods to Karachi because the market in Chittagong had gone much down. Thus there is an implicit admission that the market for the goods in dispute was available in Chittagong and the goods could easily be disposed of there. It appears to us that the question of non‑availability of the market is always a question of fact in each case. What is meant by available market is that there are purchasers in a particular market to purchase certain goods or there are no purchasers available in the market to purchase them. As the defendant‑respondents have not been able to establish the non‑availability of market in Chittagong it is obvious to us that their conduct in bringing the goods to Karachi cannot be considered to be either in accordance with the terms of the contract or warranted by the circumstances of the case. We are, therefore, clearly of the view that the learned Subordinate Judge was perfectly justified in not relying on the re‑sale of the goods in Karachi for awarding damages to the respondents. In these circumstances, the respondents could only claim damages on the difference of the contract rate and the market rate at Chittagong, but they have led no evidence on this point also. Accordingly we are of the view that the learned Sub?ordinate Judge was perfectly justified in rejecting the counter‑claim of the respondents for damages. The respondents have already got with them Rs. 3,000 as deposit from the appellants and we consider it to be a sufficient amount to meet their claim of damages. Before concluding we would like to draw the attention of the learned Subordinate Judge in respect of certain views expressed by him on points of law in the judgment. In the first place, the learned Subordinate Judge was not correct in treating the contract in question as that of specific goods. The learned Sub-ordinate Judge perhaps did not notice that the contract for sale of goods by description usually relates to unascertained o future goods. It can also apply to sale of specific goods but only when the goods are in existence or ascertained. In this case the goods were under import from Germany and could not be treated as specific goods. In the second place, the learned Subordinate Judge's view that under section 19 (1) of the Sale of Goods Act read with para. 6 of the contract the property in the goods passed to the buyers immediately when an intimation was given to them about 'the arrival of the goods is also erroneous. A reference to section 19 (1) of the Sale of Goods Act will show that it has nothing to do with unascertained or unidentified goods. It refers only to specific goods. The relevant section applicable to this case was either section 18 or section

23. After careful consideration of the arguments advanced before us we are satisfied that the learned Sub‑Judge was fully justified in dismissing the claim of both the sides. Accordingly both the appeals are dismissed with no order as to costs. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.