The main legal point established in the judgment is that the passing of property in the goods and the buyer's prevention of the seller from performing the condition of the contract entitled the seller to the balance price of the goods.

1. This is an appeal by the defendants. The plaintiff supplied to the defendants a hot mix plant. The defendants paid only 90 percent of the price. They refused to pay the balance 10 percent of the price. Hence the suit. The trial court decreed the suit. Now the defendants appeal before this Court.

2. Defendant No.1 invited offers for the supply of 6 numbers of hot mix plants. The plaintiff offered to supply the plant by their letter dated 22-1-1973. The 2nd defendant accepted the offer. He placed an order with the plaintiff for the supply of 2 numbers of hot mix plants. Subsequently the order was modified to confine it to one unit.

3. The component parts of the hot mix plant were despatched in two lots. The delivery was effected in March 1975. The invoice price of the hot mix plant is Rs. 3,69,888/-. One of the terms of the agreement of sale provided that the defendants have to pay 90 percent of the value on taking delivery of the plant and the balance 10 percent after the successful completion of the trial run. The case of the plaintiff is that the defendants did not promptly pay the 90 per cent of the price even after taking delivery. According to the plaintiff much delay has been caused in making the payments. Any how, there was no dispute between the parties when they reached the court as regards the payment of 90 per cent of the price of the plant. The plaintiff submits that the erection of the plant was completed in July 1975 and an initial test run was given on 7-8-1975. The defendants suggested that the plant required some minor adjustments and rectification of certain defects. The plaintiff was ever ready to rectify the minor defects in the plant and also willing to effect certain minor modification suggested by the defendants. They were prepared to rectify the defects along with the final commissioning of the plant. The final commissioning of the plant required the active co-operation of the defendants. It involved some expenses to be borne by the defendants. The defendants have to provide the men and materials for the commissioning of the plant. According to the defendants, it required large amounts.

4. The defendants were unduly postponing the commissioning of the plant. According to the plaintiff they were postponing the commissioning of the plant on trivial and silly grounds. The plant was kept by the defendants in open air, unprotected from the inclement weather. The unjustifiable delay caused by the defendants in the matter of commissioning the plant caused loss to the plaintiff. The plaintiff sent a registered lawyer notice calling upon the defendants to pay the balance price amount. Ultimately the plaintiff laid the suit for recovery of an amount of Rs. 69,310.42 the balance price amount with interest.

5. The defendants contended that they are not liable to pay the amount claimed in the suit. They submitted that the plaintiff was not prompt in delivering the plant in time. According to the defendants, in spite of the delay caused in the supply, they paid 90 per cent of the price as per the terms of the agreement.

6. The defendants maintained the case that the plaintiff is entitled to the balance 10 percent of the price only if final commissioning of the plant -to the satisfaction of the defendants is made. It is contended that the final commissioning would be carried on only after rectifying the defects pointed out by the defendants. They also urged that they are not bound to make arrangement for the final commissioning of the machine when the initial defects pointed out by them remained un-rectified. The defendants have taken a stand that they are not bound to invest large amounts for the final commissioning of the plant unless and until they are satisfied that the mistakes pointed out by them are rectified. This stand had been taken on account of the fact that large quantities of bitumen and other accessories costing lakhs of Rupees had to be collected and kept ready for the commissioning and trial