9911796707
TMI Blog2003 (5) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... dant on 6.11.1985 by invoice No. 10699 for a total value of ₹ 45815/-. The roofing work was completed in December, 1985. When the monsoon started in June, 1986, the sheets were found leaking. Accordingly the plaintiff sent a representation to the 1st defendant, and the officials of the 1st defendant, the manufacturer, advised the plaintiff to provide more ventilations at the ridge level. Accordingly ventilations were provided at the ridge level. Even then the leaking during monsoons continued and there was no change. The officials of the manufacturer again visited the theatre and they opined that the dripping of water was due to the condensation of moisture inside the structure during rainy season and it could be rectified by providing proper ventilations. Though the officials of the manufacturer were fully convinced that the leaking was due to the manufacturing defect of the asbestos sheets, yet they advised to provide sufficient number of radial exhausts and accordingly the plaintiff purchased sufficient number of radial exhausts on 23.7.1986 and those were installed. Yet there was no change to the leaking. The officials of the manufacturer further advised for providing lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Whether the court has jurisdiction to try the suit? 2. Whether there is any implied warranty of title in respect of the goods purchased by the plaintiff? 3. Whether the plaintiff is entitled to any and if so to what damages? 6. PWs. 1 and 2 were examined and Exts. A1 to A13 were marked on the side of the plaintiff. DW1 was examined and Exts. B1 to B3 were marked on the side of the 1st defendant. Exts. C1 to C3 were also marked. After considering the entire evidence the court below found that the Court had territorial jurisdiction to try the case and that the leakage was as a result of the defect in the manufacture of the asbestos sheets and the plaintiff was entitled to damages. Accordingly the sail was decreed for an amount of ₹ 39111.25 with interest at 6%. Aggrieved by the above judgment and decree, the suppl. 3rd defendant has come up in appeal. 7. Heard the learned counsel for the appellant and the 1st respondent. 8. The question that had come up for consideration was whether there was any implied warranty as to the quality of the asbestos sheets sold to the 1st respondent-plaintiff. Admittedly the 1st respondent placed an order with the 2nd defendant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of water entering through the overlaps, but was solely due to the defective quality of the asbestos sheets. The Commissioner was examined as PW2 and he had given evidence in support of his report. Though he was cross-examined by the learned counsel for the manufacturer, nothing could be brought out to discredit his evidence or his report. 10. The learned counsel for the appellant placed much reliance on Ext. C3 test certificate of National Test House, Calcutta, dt. 17.7.91. Even the oral evidence let in by DW. 1 Ramakrishnan, the Quality Controller of the 1st defendant company, would reveal that there could be difference in the water absorption due to exposure of the asbestos sheets to sun and rain for a pretty long time. Ext. C3 report was obtained in 1991 ie., after more than six years of the exposure of the article to sun and rain and as such much reliance cannot be placed on the above report. The evidence as a whole would establish that the leakage of the asbestos sheets was due to the defect in the manufacture of the sheets. 11. The learned counsel for the appellant submitted that there was no warranty either express or implied so far as the sale of the asbestos sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality. Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed. (3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith . Sub-section (1) of Section 16 of the Sale of Goods Act (for short, the Act) deals with the implied conditions as to the quality or fitness of the articles sold. Section 16 is an exception to the rule of 'caveat emptor'. The rule of 'caveat emptor' applies whenever the buyer voluntarily chooses what he buys. But it does not mean that the buyer should 'take chance' but it means he should 'take care'. The most important exception to the rule of 'caveat emptor' are the implied condition of fitness for a particular purpose and the merchantableness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be applicable in the present case. Further Sub-section (2) of Section 16 also would be attracted as the above article should be of mercantile quality. An implied warranty of merchantilability of the goods, ie., the goods were free from latent defects, was also there. Thus, Section 16 of the Sale of Goods Act would be applicable and there was an implied warranty as to the quality or fitness for the particular purpose for which the goods were sold. Hence there was a breach of the implied warranty as the goods did not conform to the quality or fitness for the purpose for which it was purchased. 14. Another argument advanced by the learned counsel for the appellant was that the 1st respondent had filed the suit for damages after using and retaining the articles. It was further argued that Section 59 of the Sale of Goods Act does not allow such a claim for compensation. Though the entire value of the goods had been claimed towards damages, the court below allowed only 75% of the value of the goods. Further some amount was allowed towards the expenditure met by the 1st respondent in arranging additional facilities for avoiding leakage. Even in the plaint it was alleged that as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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