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TMI Blog1928 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... principal question for decision in the appeal is whether under the circumstances proved in the case the plaintiffs are entitled to recover damages from the respondents for the alleged breach of their contract for the sale and delivery of the aforesaid goods. 4. In the order of Court of the Subordinate Judge of Delhi, dated the 9th of August, 1921, it is stated that the respondents (the defendants) had presented for the second time an application to be at liberty to add a plea that the plaintiffs were not ready or willing to perform their part of the contract entered into between the parties, and apropos of this application the Court said:- The real question in dispute is whether in face of the correspondence, could the plaintiff clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sudi 5, Sambat 1973, through Moti Ram, Ram Kishan, Brokers. (Sd.) Mul Chand-Ram Bhagat. Contract in respect of 140 (one hundred and forty) cases confirmed. 6. It is common ground that a case marked D.-1 means a tin-lined case containing 50 pieces of Messrs. R. J. Wood Co.'s shirting, manufactured in England, and the goods the subject of the said contract were sold by Messrs. R. J. Wood Co. to the respondents, and were to be as so packed for export. 7. The plaint is verified by the appellants. In its sixteenth paragraph it is alleged, and apparently not disputed by the respondents, that the shipment of the portion of the goods which should have arrived in India in the months of May and June, 1917, did not arrive in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the following terms:- We are in receipt of your favour of date, and in reply have to say that, having sold Messrs. R.J. Wood's goods to different parties, we cannot confirm the letter by sending it to you. If you are so very anxious to see the letter, you are quite welcome to come and see it at our shop. We have already sent you a copy of this letter, and if you will not come to our shop to satisfy yourself, please note we shall not be responsible. Please further note that if we will not hear from you definitely in the matter within the allotted time, you will be responsible for all con-sequences. 12. In reply to this letter the appellants on the same day wrote to the respondents a letter running thus:- Dear Sirs, With r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the 8th of May the appellants again wrote to the respondents a letter in the following terms:- Dear Sire, Re our previous correspondence, we beg to tell you that we have cancelled all goods ordered through you, and we will not take any stake, and also note we have reason and authority to cancel, and hence we will not at all be responsible for the delivery, which please note, 18. The appellants could not have beep more emphatic in repudiating any obligation to accept bales and in refusing to be bound by or to perform it. If delivery of the shirting, packed in bales, was in conformity with the contract, the appellants clearly declared that they would not accept them, and this was acquiesced in by the respondents. 19. No evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mance or may accept instead of it any satisfaction which he thinks fit 1 . 22. The contentions raised on these sections were as follows. The respondents, relying on Sections 39 and 63, said that the appellants had put an end to the agreement and had expressly dispensed them from delivery at all. The appellants contend-ed that Section 63 applied only where there was an agreement to dispense or a con-tract, supported by consideration, to do so, and that in any case it could only operate, when the party dispensing had performed his part of the contract and only something remained to be performed on the other side, unless dispensed with Abaji Sitaram Modok v. Trimbak Municipality 28 B. 66; 5 Bom. L. R. 689. They further said that, if they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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