Judgement

Appeal (No. 126 of 1919) from a judgment and decree of the High Court (June 16, 1917) varying a decree of the Court of Small Causes, exercising the powers of a Subordinate Judge of Azra.

In March, 1913, the appellant entered into a written agreement to sell to the respondents 4000 sal railway sleepers at Rs. 1, a. 15, per cubic foot, to be delivered by May 31, 1913 ; as a term of the contract the appellant deposited Rs. 5000 with the respondents and agreed to a penalty of 8 annas per cubic foot for sleepers not delivered by May 31, 1913. The respondents had previously contracted to supply sleepers to the Bengal-Nagpur Railway. By a letter of May 14, 1913, the appellant informed the respondents that 2000 sleepers were ready for inspection, and of these 1746 were passed by the railway company on June 28, 1913, and were accepted by the respondents. No

Law. Rep. 48 Ind. App. 175 ( 1920- 1921) Muhammad Habid Ullah V. Bird and C ompany

62

further sleepers were delivered; in December, 1913, the respondents having threatened to exact the penalties, the appellant refused to make any further deliveries, and commenced the present suit.

The appellant by his plaint alleged that the re