( 1. ) THIS is plaintiffs appeal whose suit apparently based on Section 56 of the Sale of Goods Act, 1930, for short, the "act", has been dismissed.

( 2. ) WITH regard to the facts of the case which lie within a short compass, admitted fact is that the plaintiff and defendant were food grain merchants and there was a contract between them relating to sale of toor dal. The nature of the contract and conditions thereof being disputed, a few words have to be stated in regard to that controversy at the outset.

( 3. ) AT para 2 of the plaint, the genesis of the contract and its nature are not mentioned on which the trial Court has commented adversely against him though on that ground the suit was not dismissed. The only statement in para 2 of the plaint is that in July, 1973, defendant firm had contracted with the plaintiff firm to purchase 240 bags of toor dal at the rate of Rs. 230/- per bag F. O. R. Sabalgarh Station (Bilticut, tax-paid ). Pursuant thereto the consignment was despatched under four railway receipts each covering 60 bags and the goods were despathed to Bhatapara Railway Station from Sabalgarh. Nothing else is mentioned in para 2.

( 4. ) THE further case of the plaintiff was that on 23-7-1973, by telegram the defendant was informed of despatch of the goods, but the Bank (State Bank of India) informed the plaintiff on 7-8-1973 that the relevant Hundi for the goods despatched was dishonoured by the defendant. As the result of defendants illegal action, the plaintiff had to depute a representative to Bhatapara on 23-8-1973 to contact the defendant and on 3-9-1973 again, a telegram was sent to the defendant that for all loss or non-acceptance of goods he will be held liable. The plaintiffs claim was for a decree in the sum of Rs. 13,334/- for loss occurred due to resale of the goods as price of toor dal had fallen in the market.

( 5. ) IN his written statement, the defendant gave genesis and particulars of the contract and his version has been accepted by the trial Court on valid ground to which I advert in immediately. The trial Court has rightly attached signal importance to defendants letter written to the plaintiff as early as on 17-9-1973, proved in suit as Ex. D/1. Indeed, that letter is defendants legal notice to plaintiff alleging breach of contract. In para 1 of that letter, it was mentioned that the defendant had contracted to purchase from the plaintiff "one wagon load (240 bags) number one quality of Toor (Rahar) Dall Tax-paid, bulty-cut, rate Rs. 230/- per quintal new gunny bags". In that notice, it was alleged that the contract was breached by the plaintiff because the goods supplied was "very inferior (number three quality)" and that at the time of contract, sample was shown of "number one quality". That apart, as per contract, the entire consignment of 240 bags had to be booked in one railway receipt in one wagon, but that was not done. In that notice, the defendant stated that the contract was made through a broker and a representative of that broker with representative of the plaintiff had come to Bhatapara and taken sample of the goods lying at Bhatapara Station. In the presence of some persons, namely, one Saligram Daga and others, the samples were compared and partners of defendant firm, Ramnarayan and Laxminarayan informed the two representatives that even at reduced rates, they were not in a position to accept the goods though, those two representatatives consented to reduce the price by Rs. 3,000/ -. In the written statement, the same case was set up and reiterated.

( 6. ) THE Court below struck as many as ten issues, but I have no doubt that the instant appeal can be disposed of having regard only to the controversy agitated in issue No. 4 decided in defendants favour. The issue was, "whether inferior quality dall had been despatched".

( 7. ) IN this connetion, reference may be appropriately made at this stage to the provisions of Section 17 of the Act which I quote :

"17. Sale by sample.- (