Judgment

HEGDE, J. :- These two appeals by special leave arise out of cross-suits in respect of the contract for purchase of manganese ore entered into between the appellants and the respondents on May 7,1953 under the agreement marked as Exh P-81. The appellants are the sellers and the respondents are the buyers. There has been a breach of that contract. The parties are at issue as to who was responsible for the breach. Both the trial Court as well as the High Court have come to the conclusion that the sellers were responsible for the breach of the contract. The buyers suit was for the refund of the money advanced by them with interest. In the sellers suit they claimed a sum of Rs. 1,13,439/ 2/- after adjqmkg the advance of Rs. 4, 41, 000/- as damages against the buyers, for wrongfully refusing to take delivery of the ore supplied under the contract. The sellers suit has been dismissed and the buyers suit has been substantially decreed.

2. On May 7, 1953, the buyers entered into a contract to buy 7500 tons of high grade of manganese ore and the sellers agreed to sell the same. The ore was to be delivered at one or the other of the four points mentioned in the contract. The price agreed to be paid was Rs. 140/- per ton of 2240 lbs. F. O. R. Sitasaongi and Duttapohar sidings and Ramtek and Goberwahi stations on the basis of 48% Metallic Manganese; Rejections below 46% Mn., Maximum 9 percent Fe., Maximum 9 percent. Sio2 and Maximum 0.10% P., and if any ore offered does not fulfil those conditions the buyers were entitled to refuse to take delivery of the same. Clauses 4 and 5 of the contract are important for our present purpose. They read as follows:

"4. That the sellers undertake to deliver 7,500 tons during the period January1954 to June 1954 in approximately equal monthly quantities of 1250 tons. However, it would be the sellers option to complete the deliveries earlier than the period mentioned hereinabove. On delivery of any parcel at any of the above-named railway sidings and/or Railway Stations against the above deliveries, the buyers will pay to the sailers the full value based on the analysis ascertained and final settlement will be based on the railway weigh-bridge weights ascertain at Goberwahi and Itwari Stations.

5. That the sampling will be done jointly in the presence of the representatives of the sellers and the buyers and the samples in tins under the signatures and seals of both the parties will be sent both to M/s. Hughes & Davies, Bombay and M/s. J. S. Williams, Takli Road, Nagpur and the mean of their results will be final and binding on both the sellers and buyers. The cost of sampling and analysis as referred to hereinabove will be home equally by the seller and the buyers. However, in case there be any dispute in regard to sampling, the same shall be done by Messrs. Hughes and Davies of Bombay which shall be binding on both the sellers and buyers."

3. As per the terms of the contract the buyers paid a sum of the 4,41,000/- as advance, at 42% of the basic price for the purchase of 7500 tons of manganese ore. It was agreed between the parties that each time the sellers supplied ore to the buyers, 42% of the price of the ore supplied should be adjusted towards the advance and the buyers are required to pay the balance only. The remaining terms of the contract are not relevant for our present purpose.

4. In January 1954, the sellers supplied 1207 tons of ore. The parties jointly took samples from out of the ore supplied. Thereafter the samples were analysed by M/s. Hughes and Davies and M/s. J. S. Wlliams. The quality of that ore did not come up to the specifications. Hence the buyers rejected the same. In February, 1954 the sellers again supplied 1295 tons of ore. On this occasion also samples were taken jointly by the sellers and the buyers and those samples were analysed by M/s. Hughes and Davies and M/s. J. S. Williams. Out of the quantity supplied only 85 tons of ore were found to be in accordance with