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TMI Blog1955 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... pur from the godown at Damoh to the railway station and from Jabalpur railway station to my godown there. You have got with you a government permit for loading the goods. Hence you please will accompany (us) to Damoh and get the goods loaded. I will return to you the empty bardana (gunny bags) of these goods within 15, fifteen, days. With respect to empty bardana (gunny- bags) you will deduct the price thereof at 0-8-0 per bag from the cost price. I will pay the amount of these goods to you in one month from the day of arrival of the goods at my godown.... On 11-11-1944 the Plaintiff gave delivery to the Defendant Mangilal through his agent Kalu ram of 202 bags of masur from the bungalow of Shri David and of 298 bags from a godown at Mowganj. 2. It is not disputed that the Plaintiff had informed the Defendant that the masur which he was selling to him had been purchased by him in the harvest of that year. It is also not disputed that the masur in the godown was rotten and could not be considered to be of merchantable quality. As a matter of fact, 3 bags of masur out of these were sold at rates ranging from 10 to 19 seers per rupee though the price of good masur on that dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f delivery. It is also contended that the Plaintiff's suit was liable to be thrown out on the ground that the contract was opposed to public policy, in that it provided for the transport of goods already purchased by the Defendant at Damoh to Jabalpur on the strength of permits obtained in the name of the Plaintiff, which would be contrary to the control orders in force on that date. 6. The learned Counsel for the Plaintiff, on the other hand, contends- (i) that the property in the goods sold passed to the buyer on the date of sale and hence the Plaintiff could not be liable for any damages for the alleged breach of warranty; (ii) that no warranty of quality was expressly stipulated, nor could it be implied' under the circumstances of the case; (iii) that as there was no breach of warranty the Defendant was not entitled to put forward that excuse for any diminution in price; and (iv) that the rate of damages has been ascertained on correct principles, that is to say, the Defendant, if at all entitled to damages by claiming a diminution in price, can do so only on the basis of the difference of rates on the date of delivery between the market rate of good m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as damp oven on the day when the Plaintiff chose to store his goods there. He got some 'bhusa' spread on the floor in order to avoid the effect of dampness. The terrace was leaking and as the keys had been taken away by the Plaintiff himself, it was not possible to take any steps, for protecting the goods till they were finally disposed of. There is no evidence to show the state sale of the goods on 6-11-1944 when the contract of sale was entered into. In any case it could not be asserted that the goods were of merchantable quality even on that, date and that their deterioration started thereafter. But in our opinion, this question is immaterial in the instant case as the property in the goods did not pass to the Defendant on the date of the agreement. The incidence of the damage could therefore never fall on the Defendant. 10. The Plaintiff as P.W. 1 has admitted that he .had informed the Defendant that the masur was purchased by him in the harvest of that year. According to Liladhar the masur was in fact of that year's harvest. There is thus no question that what the parties intended to deal in was masur of that year's harvest. Masur is a foodstuff and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be incomplete by reason of the breach of some of the conditions or warranties - express or implied - whether as to title, or quality, or fitness to Which he has bound himself by the contract: (Benjamin on Sale, Page 984). The question then is what is the diminution in price to which the Defendant is entitled under Section 59 of the Act? Section 59 is in the following terms: 59 (1) Where there is a breach of warranty by the seller or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller us a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may- (a) set up against the seller the breach of, warranty in diminution or extinction of the price; or (b) sue the seller for damages for breach of warranty. (2) The fact that a buyer has set up a breach of warranty in diminution or, extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damage. In the instant case the Defendant has set up the breach of warranty of quality in order to claim a diminution of price under Clause (a) of Sub-section (1). He is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to the contract price of the goods. Contract price is the special value of the goods to him and has no relevance to the consideration that the law is attempting to place the Appellant-Defendant in the same position as if the good quality masur was being delivered to him. As explained by the Division Bench of the Madras High Court a 'Messrs. Thilokchand Poosaji v. Crystal and Company' AIR 1955 Mad 481 (486) AIR V 42 (D). It will be seen that in this computation, the price contracted for is wholly irrelevant and immaterial. To take the present case as a concrete instance, the contracted price of the goods was Rs. 23-11-0 per dozen. Suppose the market price in April-May 1947 of solid colour pens were Rs. 28/- per dozen while that of pearl colour was Rs. 30/- a dozen; the buyer would be entitled to damages at Rs. 2/- per dozen notwithstanding that he is making a profit by the sale. On the other hand, if the market price of the solid colour pens went down to Rs. 18/- per dozen while the variety contracted for was say Rs. 20/- per dozen, he would still be entitled only to Rs. 2/- per dozen and nothing more. The fact that he might have indented for solid c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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