Judgment

SARKARIA, J.:- This appeal by certificate is directed against a judgment, dated December 6, 1968, of the Calcutta High Court. The relevant facts giving rise to this appeal are as follows:

On July 29, 1950, Tulsiram Shaw (since deceased) carrying on business under the name and style of "Tulsiram Bhagwandas" purchased certain specific goods for Rs. 35,100/- under Lot No. 32 in an auction held on July 27, 1950 at Panagarh by M/s. Egbart Andrews & Co. auctioneers, under instructions of the Government of India. The major item of these goods in Lot No. 32 comprised of 1540 pieces of "valves sluice water flanged and drilled to B. S. T. C. 4". The book value of this item was stated to be Rs. 88,454/- and that of the remaining goods Rupees 5,170/14/-. The reserved valuation at the auction sale was Rs. 35,000/-.

2-3. On August 26, 1950, Tulsiram Shaw sold those specific goods for a sum of Rs. 35,200/- to the partnership firm of Sitaram Srigopal. The latter paid the entire price in cash to the former. Tulsiram Shaw further promised to had over the release order of the goods and/or delivery order by August 28, 1950, to enable the firm to take delivery of those goods from Panagarh. Tulsiram neglected or refused to deliver the said release order in spite of demands by Sitram Srigopal.

4. On the preceding allegations Sitaram Srigopal instituted a suit in the High Court of Calcutta against the original defendant. Tulsiram Shaw, on January 15, 1951, for specific performance by the defendants to deliver the said specific goods on the ground that these goods were not readily available in the market and were of some big value and, therefore, damages would not afford adequate relief for the loss of the goods. In the alternative, the plaintiff claimed refund of the price of Rs. 35,200/- with interest at 6% per annum and a further sum of Rupees 1,32,559/- as damages, being the difference between the contract price and the market price of the goods on the date of the breach, namely, the end of August, 1950.

5. The suit was resisted by the original defendant, who, in his written statement, pleaded that he was, at all material times, ready and willing to deliver the release order to the plaintiff and had in fact offered to do so, but the latter requested the defendant to cancel the contract and refund the amount of Rs. 35,200/- by cheque on September 21, 1950, but the plaintiff declined to accept it.

6. During the pendency of the suit, the original defendant died on November 15, 1959, and his widow, Smt. Daulati Devi (respondent 1 herein) and his only son, Bhagwan Das Shaw (respondent 2 herein) were impleaded as defendants in place of the deceased.

7. On April 12, 1960, respondent 2, Bhagwardas Shaw, filed an additional written statement in which he took, additional pleas.

8. The suit originally came up for hearing before G.K. Mitter J. on March 8, 1957, when some witnesses were examined. It next came up before the learned Judge on March 11, 1957, for examination of further witnesses. Counsel for the defendents, however, failed to appear. The learned Judge therefore, closed the case and passed a decree for Rs. 35,200/-, with interest and costs, against the defendants.

9. On being moved by an application, the judgment and the decree was recalled and the suit was again tried by A. K. Mookergee J. who, by his judgment, dated 23rd and 26th August, 1965, decreed the suit for the refund of Rs. 35, 200/- with interest at 6% per annum, from August 26, 1950 up-to date and for a further sum of Rupees 63,445/- as damages with interest and costs.

10. The Appellate Bench of the High Court, after a reappraisal of the evidence on record, came to the conclusion that the goods in question at the time of the sale were "old and second hand goods but in fair condition". The Bench reasoned : "If the goods were really new, the reserved price would not have been nearly half the book value at a public sale." The Bench found it "impossible to believe that they were in bran