The obligation of the buyer to apply for delivery under Section 35 of the Sale of Goods Act is postponed to a reasonable time if the nature of the transaction is such that it would take some time to put the goods in a deliverable condition.

SRINIVASA CHARI, J.

( 1 ) THIS is an appeal and a memorandum of cross-objections before this Court against the judgment of the Subordinate judge, Guntur. The brief facts relating to this case are that the plaintiffs firm carrying on business in groundnut oil entered into two contracts with the firm of the 1st defendant by its partners, defendants Nos. 2 to 4. The first contract was for the supply of 120 drums of groundnut oil at Rs. 16-4-0 per maund of 25 Ibs. for ready delivery on the Guntur Railway Platform, the payment being made against delivery. The other contract was for the supply of 60 drums of the same oil for delivery likewise at Guntur Railway platform. These contracts were entered into and signed in the brokers office at Guntur and attested by the broker. The plaintiff alleged that according to the trade usage obtaining in contracts relating to groundnut oil, the seller, if he were outside Guntur, had to take empty drums from the buyer at his expense, fill them with oil and bring them to Guntur Railway platform, weigh them and take the contracted price for the quantity of oil Supplied. He stated that on 12-8-1951 the defendants sent for 60 empty drums as the first instalment from the plaintiff Accordingly the empty drums were handed to the defendants agent. After taking the enipty drums the defendants did not fill them up with oil as they should have done. They failed to deliver the oil in spite of several requests by the plaintiff, who had to export the said oil to Calcutta. Finally, the plaintiff said that he sent-wires on the 25th, 27th and 30th of August 1951 demanding the supply as per the contracts. While not carrying out the terms of the contracts,. the defendants sent a telegram on 31-8-1951 in reply to the several notices issued stating that the contract of the 9th instant had been cancelled on the same day and settlement made at Rs. 16. 00, The plaintiff alleged that there had been a breach of contract oh the part of the defendants and they were liable for damages, the difference between the contract rate and Rs. 18. 00 being the market price of the day on which the supply was to bo made. Plaintiff, therefore,- claimed a sum of Rs. 5445. 00on account of the difference in price and also a sum of Rs. 1415. 00 on account of the value of 60 empty drums taken by the defendants and not returned. Defendants pleaded that as there was a downward tendency, the plaintiffs agent settled both the contracts on the evening of the 9th of August 1951 alone and under this settlement the plaintiff agreed to pay the difference of four annas per maund in respect of one contract. The trade usage relied on by the plaintiff was denied. A further plea was raised that the suit contracts were in the nature of forward contracts. They denied that there was any default on their part and that any breach had occurred entitling the plaintiff to claim damages. The main issues raised by the trial Court were (1) whether-the settlement alleged by the defendants was true, (2) whether defendants committed breach of contract, (3) whether the suit contract could be regarded as a forward contract as contended for by the defendants and (4) to what damages, if any, was the plaintiff entitled? The plaintiff examined the manager of the plaintiff firm and a broker in whose books the suit contract was entered and who attested the same and two other witnesses of other firms doing business in groundnut oil, to prove the trade usage. Defendants examined one witness being defendant No. 3. In addition to this oral evidence the correspondence between the parties (notices and telegrams) and other documents including the book maintained by the broker were produced. On this evidence the trial Court came to the following conclusion; (a) the alleged settlement pleaded by the defendants was not established, (b) it was proved that 60 empty drums had been taken; having taken the empty drums the defendants failed to fill them with oil as they were bound to do under th

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