Rights of buyers accepting the goods.

This appeal arises under clause 15 of the Letters Patent from the judgment of Basheer Ahmed Sayeed J., in C.C.C.A. No. 93 of 1952 at the instance of the plaintiff. That appeal arose out of a suit filed by the appellant for the refund of Rs. 2,976-8-0 being the price paid in respect of 5 tons of caustic soda sold to him by the respondent with interest theron. The appellant is a firm of merchants carrying on business at Madras. The respondent is carrying on business at Erode, Coimbatore District, under the name of “ Hindustan Soap Works” . The respondent had entered into a contract for the supply of “ 5 tons of caustic soda Solid No. 97/98 U.S.A. origin” with Messrs. Alfred Mackenzie &38; Co., Ltd., Madras. The goods had arrived at the Madras harbour on the 7th January, 1949 and were stocked in the godown of Messrs. Alfred Mackenzie &38; Company. On the nth of January, 1949 the appellant entered into a contract with the respondent for the purchase of the aforesaid goods at Rs. 28-12-0 per cwt. On 21st January, 1949 the appellant paid the price and sought delivery of the goods but Messrs. Alfred Mackenzie &38; Company however refused to give delivery as some moneys were due to them from the respondent. The respondent paid those moneys immediately ane enabled the appellant to take delivery of the goods. The appellant however became inactive and on 12th February, 1949, they wrote to the respondent saying that when they went to take delivery of the goods they found that the goods were “ not fit for usage or resale as the drums in which they were packed were old and extremely damaged” . They insisted that they should be given new stock or a refund of the price paid. The respondent promptly repudiated the claim stating that the contract was entered into by the appellant after an inspection of the goods. Further correspondence only led to the suit. In the meanwhile Messrs. Alfred Mackenzie &38; Co., who were having custody of the goods sent notices to the parties and failing to get any response sold the goods on 26th September, 1949 and realised a sum of Rs. 1157-2-3. Out of that sum they adjusted a sum of Rs. 362-15-0 towards their dues for rent of the goodown and the expenses of re-sale. Subsequently Messrs. Alfred Mackenzie &38; Company, Limited, appears to have gone into liquidation and the sum realised from the sale was taken over by the Official Liquidator. A few days before the sale the appellant filed the suit out of which this appeal arises for a refund of the price paid by them on the ground that the goods did not answer the description under which they were sold and were not of merchantable quality. The respondent contested the claim and stated that the appellant had inspection of the goods before they entered into the contract and that he did not make any representation regarding the quality of the goods or the nature of the packing and that the sale of the goods was not a sale by description and that the default in not taking delivery of the goods was with the appellant. The learned City Civil Judge framed substantially two issues, namely, (1) as to which of the parties committed a breach of the contract and (2) whether the appellant was entitled to the return of the price. Evidence both oral and documentary was let in and the learned Judge came to the conclusion that the appellant did not have inspection of the goods before they entered into the contract of sale and that the sale was by description and that the appellant having rejected the goods in time was entitled to the return of the price paid. He also held that the respondent was guilty of the breach of contract. In that view he passed a decree for the amount claimed with subsequent interest and costs.

On appeal by the respondent, Basheer Ahmed Sayeed, J., accepted the finding that the appellant did not have inspection of the goods before entering into the bargain but held that inspection was made before the price was paid. The learned judge als