9911796707
TMI Blog1956 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... silk from him on 20-4-1945 at the rate of ₹ 5/5/9 per yard, took immediate delivery of 10 thans and left the remaining 57 thans with the respondent saying that Messrs. Raghubar Dayal Ram Charan of Farrukhabad would take delivery of those thans on the appellant's behalf and would pay the price thereof at the time of delivery. It was, further, alleged that interest was agreed to be paid at ten annas per cent, per mensem. The respondent went on to allege that Messrs. Raghubar Dayal Ram Charan did not take delivery of the remaining 57 thans and made no payment. According to him, the appellant firm was given notice but it still refused to take delivery of the thans. Then follows a very material allegation in the plaint, viz. that afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract was made as alleged in the plaint. The learned counsel has, however, taken his stand on Section 54, Sale of Goods Act (3 of 1930) and has contended that no notice of the intended sale was given to his client and therefore his client is not bound to pay any damages whatsoever to the respondent. 5. In order to entertain this plea a finding has to be recorded as to whether of not notice was given by the respondent to the appellant about the intended sale. The learned counsel for the respondent has made a request to us that an issue be remitted to the Court below on this point. After having given our best consideration to this request, we do not find ourselves in a position to accede to it. Both parties had stated their cases on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the appellant is dated 8-7-1945. In this notice intimation was given that a resale had already taken place. In his deposition the respondent stated that he had written to the appellant firm that if it would not take delivery he would sell the goods. But in the very next breath he added that he did not remember as to when he gave that intimation to the appellant. He did not summon that notice from the appellant, nor did he produce any secondary evidence of that notice. He is contradicted by his own Munim, Purshottam Narain, who says in his deposition that no written notice was sent to the appellant. The case put forward by Purshottam Narain is that he had orally told the appellant that goods would be sold away. This is denied by Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the buyer does not within a reasonable time pay or tender the price, re-sell the goods within a reasonable time and recover from the original buyer damages for any loss occasioned by his breach of contract, but the buyer shall not be entitled to any profit which may occur on the re-sale. If such notice is not given, the unpaid seller shall not be entitled' to recover such damages and the buyer shall be entitled to the profit, if any, on the re-sale." The last sentence of this sub-section imposes a penalty on the seller in case he exercises the right of re-sale without giving notice of his intention to resell to the buyer. This is a new clause which did not find place in the old Section 107, Contract Act. The object of introduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There were 67 thans in all with the respondent and all these thans were agreed to be sold. Thus the goods were ascertained and were in a deliverable state. Under Section 20, Sale of Goods Act the property in the goods passed to the buyer as soon as the contract was made. But the seller was allowed to retain possession of 57 thans till the payment of price. No period of credit was given to the seller in respect of them. Therefore, the case fell under Sub-section 1 (a) of Section 47 in respect of these 57 thans and the seller's lien commenced from the time of the making of the contract, We, therefore, find no force in the contention that the seller was not exercising his right of lien and that Sub-section (2) of Section 54 did not come in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the mere fact that the appellant firm falsely denied the making of the contract is not sufficient to take the case out of the purview of Section 54(2). 11. It is next contended by the learned counsel for the respondent that he had two rights, viz., a right of re-sale under Section 54(2) and an independent right under Section 55 to sue for the price of the goods. This contention is perfectly correct. It was open to him not to sell the goods and to sue for the price leaving it to the purchaser to take delivery of the goods lying with him (the seller) at his own convenience. Moreover, he should have in that case sued for the entire amount and not for the amount that according to him remained due to him after deducting the price fetche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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