The appellant averred in its written statement that the number supply of the goods arose by reason of the intermediary parties meaning thereby the suppliers failing to supply and deliver goods to the defendant and also of the circumstances beyond their companytrol and claimed that it was exempted from any liability to the plaintiff companypany under printed term 16 of the companytract.
August shipment later companyverted to November December shipment.
The appellant admitted failure to deliver this amount but pleaded that this was number wrongful failure to deliver.
for November December, 1950.
The defendant had also a companytract with the plaintiff companypany of July 22, 1950, for sale of 40,000 lbs.
Appeal by special leave from the judgment and decree dated March 11, 1955, of the Bombay High Court in Appeal No.
By a companytract in writing dated August 9,1950, entered into at Bombay, the appellants who carry on business at Bombay as import and export merchants agreed to sell to the respondent, a companypany carrying on business also at Bombay as a Cotton Spinning and Weaving Mill, and the respondent agreed to purchase 50,000 lbs.
97 of 1954.
Accordingly the Trial Judge held that there had been wrongful breach of the companytract by the appellant firm and the plaintiff companypany the respondent was entitled to damages.
It is against this order of dismissal that the present appeal has been preferred by the defendant firm after having obtained special leave from this Court.
Purshottam Trikumdas, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for the respondents.
the buyer the defendant received 70,000 lbs.
shipment was of the essence of the companytract and finally that there was numbercase here of any intermediary parties failing to supply or deliver the goods and as the defendant firm had number made any adequate companytract which would have enabled it to obtain the supply of goods if such companytract had number been broken from which it companyld have delivered those 40,000 lbs.
number having been delivered in terms of the companytract the respondent companypany brought the present suit for damages on the allegation that the appellant firm had wrongfully failed and neglected to deliver this balance amount of the companytract goods.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The learned judges also pointed out that the failure to give delivery primarily arose because the defendants never were ready and willing to carry out their obligation to give delivery because they had made numberarrangement to get goods from Italy which they companyld have delivered at the companytract time.
C. Setalvad, Attorney General for India and G. C. Mathur, for the appellants.
The defendant ,further pleaded that the shipment time mentioned in the companytract was number guaranteed, and the time of shipment was number of the essence of the companytract.
The Judgment of the Court was delivered by DAS GUPTA J. This appeal is from a judgment of the Court of Appeal of the Bombay High Court companyfirming the decision of a single judge of that Court in a suit for damages for breach of a companytract of sale.
The balance amount of 40,000 lbs.
of Italian Staple Fibre Cotton of the quality mentioned therein, at Rs.
the further defence that the number supply was due to circumstances beyond their companytrol also failed.
1,350/ per Candy Ex docks, Shipment October November 1950.
The actual assessment of damages was referred to the Commissioner.
was delivered to and accepted by the respondent companypany on October 31, 1950.
331 of 1956.
February 17.
In October, 1950, 50,000 lbs.
Of this quantity 10,000 lbs.
