Sathish Ninan, J.

1. The dismissal of a suit for damages is under challenge in this appeal.

2. Plaintiff company is engaged in the business of rubber latex processing. The defendant invited tenders for sale of "675 barrels of normal rubber latex processed during the month of December, 1990 at Ayiranalloor Estate". The plaintiff's bid was confirmed. Thereupon, Ext. B5 agreement was executed between the parties. Plaintiff paid price for 644 barrels. Out of the total quantity, the plaintiff lifted only 605 barrels. The allegation of the plaintiff is that the latex is of substandard quality and does not conform to the normal required standards. Accordingly the suit was filed for realisation of an amount of Rs. 2,26,182/-. The defendant denied the allegation regarding the quality of the latex. The claim for damages was challenged.

3. As specified in the tender, the product sold was "normal rubber latex processed during the month of December, 1990". The allegation is that the latex supplied contained a high quantity of volatile Fatty Acid (VFA) than normal standards. PW 2 is an expert from the Rubber Board. He has deposed that since 2 to 3 months after the latex is procured the VFA content will start increasing. The latex on being collected will be added with 1.2% ammonia which will preserve the quality of the latex. He has added that such latex with ammonia added is referred to as 'normal latex1. According to him upto a period of six months, the latex would be in a usable condition though its quality would deteriorate. He has deposed that it is in the interests of the buyer that immediately after sale, the latex be removed for processing. Referring to Ext. All, which contain the VFA value of the latex sold to the plaintiff, he has deposed that the latex mentioned therein can be centrifuged and used. From the evidence available, it follows that the latex supplied is not of the quality as expected to by the plaintiff. However, it is not the case that the latex is totally unusable. The product that was sold is of December 1990. The tender was floated on 16.01.1991 and accepted on 07.02.1991. Exhibit B5 agreement was executed between the parties only on 06.03.1991. The delay in execution of the agreement is attributable to the plaintiff. PW 1 has rather admitted the delay on their part in executing the agreement explaining that it was due to lack of funds. Even by that time 3 months had already expired since the latex was collected. The entire quantity of latex was to be lifted by the plaintiff on or before 10.03.1991. However, even as on May 1991, only 605 barrels were lifted by the plaintiff, it is in evidence that the plaintiff had been requesting the defendant for more time to lift the articles for various reasons not attributable to the defendant. Suffice to notice that there was inordinate delay in lifting the latex by the plaintiff. As is revealed from the evidence of PW 2, time is an important factor insofar as the quality of latex is concerned. By passage of time the quality deteriorates. Here, clauses 5, 6 and 13 of Ext. B5 agreement entered into between the parties is significant and is extracted:

"5. Transport of the produce will be the responsibility of the purchaser and the seller will not undertake any of the complaint about quantity of the latex once it is delivered to the purchaser by the seller. However, the loading of latex in the purchasers vehicle and unloading of empty barrels in the seller's estate will be done by the seller.

6. The latex sold should be taken delivery on or before 10.03.1991 failing which, ground rent at the rate of Rs. 2/- (Rupees two only) per day per drum will be charged extra.

13. Wherever any time or period is provided in the agreement for the performance of any act or thing, time or period so provided shall be deemed to be essence of the contract."

As per Ext. B5, the latex is to be lifted before 10.03.1991 and once it is delivered to the purchaser no complaint about the quality of the lat