Judgement

Consolidated Appeal (No. 64 of 1930) from two decrees of the High Court (September 22, 1927) affirming two decrees of the Subordinate Judge at Bapatla (March 31, 1923).

The appeal arose out of two suits, but in substance related only to a suit (No. 86 of 1919) brought by the appellants, as sellers, against the respondents, as buyers, claiming damages for the breach of contracts made in August, 1918, for the sale of yarn. The contracts, which specified no time for delivery, had been partly performed, but on January 3, 1919, the buyers had refused to take further deliveries on the ground that an unreasonable time had elapsed since the date of the contracts. Both Courts in India had dismissed the suit, holding that a reasonable time for delivery had expired at latest by the end of November, 1918.

The facts of the case appear from the judgment of the Judicial Committee.

1935. Jan. 21, 22, 24. Dunne K. C. and Subba Row for the appellants. Although under s. 46 of the Indian Contract Act performance of the contracts had to be within a reasonable time, the appellants, under s. 93, were not bound to deliver until the respondents applied for delivery. As they had not done so there was no default by the appellants on December 19, 1918, when they required the respondents to take delivery. There was no ground for treating the contracts as cancelled or abandoned so as to make s. 93 inapplicable Jones v. Gibbons (( 1853) 8 Ex. 920.); Pearl Mill Co. v. Ivy Tannery Co. ([ 1919] 1 K. B. 78.); Hartley v. Hymans. ([ 1920] 3 K. B. 475.) The respondents letter of January 3, 1919, was a repudiation entitling the appellants to sue for damages. The letter having been treated as a repudiation, the respondents cannot now rely upon grounds for repudiation not relied on therein Braithwaite v. Foreign Hardwood Co. ([ 1905] 2 K. B. 543.); British & Benningtons, Ld. v. N. W. Cachar Tea Co. ([ 1923] A. C. 48.) That principle has been applied in India Nannier v. Rayalu Iyer (( 1925) I. L. R. 49 M. 781.); Ganesh Das-Ishar Das v. Ram Nath. (( 1927) I. L. R. 9 L. 148.)

Upjohn K.C. and Narasimham for the respondents. Both Courts in India held that a reasonable time for performance expired in November, 1918. As the contracts did not provide for delivery " as required" the appellants could not on December 19, 1918, rely upon the fact that delivery had not been applied for Pearl Mill Co. v. Ivy Tannery Co. ([ 1919] 1 K. B. 78.); Hartley v. Hymans. ([ 1920] 3 K. B. 475.) The appellants thereupon could not on December 19, 1918, require the respondents to take delivery. Further, as held by the High Court, s. 93 did not apply, because the contracts were for goods which the appellants had to obtain from distant mills and the respondents could not know when the goods were available ; the course of business and the pleadings estopped the appellants from relying upon the section. Moreover, the High Court rightly found that the absence of deliveries after October was due to the appellants failure to take delivery from the mills and that in December they were not in a position to deliver any goods except those sold by auction. The respondents are entitled to rely upon any ground for repudiation existing on January 3, 1919. Having regard to the judgment of Lord Sumner in the British 6- Benningtons Ld. case ([ 1923] A. C. 48, 70-72.), Braithwaites case ([ 1905] 2 K. B. 543.) is not an authority to the contrary. Subba Row replied.

Feb. 12. The judgment of their Lordships was delivered by

LORD THANKERTON. This is a consolidated appeal from a judgment and two decrees of the High Court of Judicature at Madras, dated September 22, 1927, which affirmed a judgment and two decrees of the Court of the Subordinate Judge, Bapatla, dated March 31, 1923, and made in original suits Nos. 86 of 1919 and 83 of 1922.

In original suit No. 86 of 1919, the appellants sue the respondent No. 1, in appeal No. 64 of 1930, and his minor son, to whom he is guardian ad litem, respondent No. 2 in