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1955 Supreme(Nagpur) 82
HIGH COURT OF NAGPUR
Mudholkar, Naik
MANGILAL KARWA – Appellant
Versus
SHANTIBAI – Respondent
First Appeal No. 119 of 1947
Decided on : 19-10-1955
A P Sen, M Adhikari, P N Rudra, Advocates
The measure of damages for breach of warranty of quality is the difference between the market price of good masur and the market price of the damaged masur.
Headnote:
SALE OF GOODS - BREACH OF WARRANTY - MEASURE OF DAMAGES - DIFFERENCE BETWEEN MARKET PRICE OF GOOD MASUR AND DAMAGED MASUR.
Fact of the Case:
The Plaintiff sold 503 bags of masur to the Defendant at Jabalpur. The Defendant agreed to pay the price of the masur and the expenses incurred in transporting it from Damoh to Jabalpur. The Plaintiff delivered 202 bags of masur from a bungalow and 298 bags from a godown. The Defendant paid Rs. 4800/- to the Plaintiff and returned 300 empty gunny bags. The Plaintiff sued the Defendant for the balance of the price of the masur sold to him.
Finding of the Court:
The trial court found that the Defendant had agreed to purchase 503 bags of masur of that year's harvest kept by the Plaintiff at Damoh with his adatiya Liladhar for Rs. 10,153-8-9; that the Defendant had no opportunity to see the goods, nor was a sample of the goods shown to him; that the 300 bags of masur of which delivery was taken from the godown were rotten and not of merchantable quality; that the market value of the damaged goods was 12 seers per rupee; and that as there was a breach of warranty for which the Defendant could claim a diminution in price, he assessed the loss suffered by the Defendant at Rs. 1500/- -- the difference between the market price of the damaged masur at a flat rate of 12 seers per rupee and the market price of good masur on that date at 7 1/2 seers per rupee.
Issues: 1. Whether the contract was opposed to public policy? 2. Whether the property in the goods passed to the buyer on the date of sale? 3. Whether there was a breach of warranty of quality? 4. What is the measure of damages for breach of warranty of quality?
Ratio Decidendi: 1. The contract was not opposed to public policy as it did not provide for the transport of goods already purchased by the Defendant at Damoh to Jabalpur on the strength of permits obtained in the name of the Plaintiff, which would be contrary to the control orders in force on that date. 2. The property in the goods did not pass to the Defendant on the date of the agreement as the contract was not for the sale of specific or ascertained goods. 3. There was a breach of warranty of quality as the goods were not of merchantable quality. 4. The measure of damages for breach of warranty of quality is the difference between the market price of good masur and the market price of the damaged masur.
Final Decision: The Defendant's appeal was partly allowed. The decretal amount in F.A. No. 119 of 1947 was reduced by Rs. 500/-. Under the circumstances, the parties were left to bear their own costs in both the Courts.
1. On 5-11-1844 Rai Bahadur Kepurchand Choudhary, the Plaintiff sold to Mangilal Karwa, the Defendant, at Jabalpur, 503 baga of masur (each bag to contain 21/2 maunds of masur) stocked with his adatiya Messrs Liladhar Raghunath Sahain at Damoh for Rs. 10,153/8/9 inclusive of the price of the gunny baga, under the agreement Ex. P-l which reads as follows:
....I have purchased your masur, bags 503, (each bag being of) the capacity of 21/2 maunds which is kept at Damoh in the Adat of Liladhar Raghunath Sahayan of Damoh and the cost price of which is Rs. 10,153/8/9 in words, ten thousand one hundred and fifty-three rupees, eight annas and nine pies, inclusive (of the price of) bardana (gunny bags). I will pay the expensed whatever be incurred on railway freight, carting charges, palledari (coolie charges for leading and unlcading), octroi and terminal taxes etc. etc. in bringing the same to Jabalpur from the godown at Damoh to the railway station and from Jabalpur railway station to my godown there.
You have got with you a government permit for loading the goods. Hence you please will accompany (us) to Damoh and. get the goods loaded. I will return to you the empty bardana (gunny bags) of these goods within 15, fifteen, days. With respect to empty bardana (gunny- bags) you will deduct the price thereof at 0-8-0 per bag from the cost price. I will pay the amount of these goods to you in one month from the day of arrival of the goods at my godown....
On 11-11-1944 the Plaintiff gave delivery to the Defendant Mangilal through his agent Kalu ram of 202 bags of masur from the bungalow of Shri David and of 298 bags from a godown at Mowganj.
2. It is not disputed that the Plaintiff had informed the Defendant that the masur which he was selling to him had been purchased by him in the harvest of that year. It is also not disputed that the masur in the godown was rotten and could not be considered to be of merchantable quality. As a matter of fact, 3 bags of masur out of these were sold at rates ranging from 10 to 19 seers per rupee though the price of good masur on that date was 7 to 8 seers per rupee. The Defendant paid to the Plaintiff from time to time Rs. 4800/-, namely,
Rs. 2.000/- On 11-12-1944, Rs. 2,100/- on 30-12-1944 and Rs. 700/- on 15-1-1945.
He also returned to the Plaintiff 300 empty gunny bags valued at Rs. 150/-. The Plaintiff now claims from the Defendant the balance of the price of the 603 bags of masur sold to him (the Defendant) on 5-11-1944 together with incidental expenses, interest and costs. The details of the claim as disclosed in the plaint are as follows:
Rs. 10,158/8/9 price of the 503 bags of masur. Rs. 166/12/0 for incidental expenses incurred by the plaintiff in sending the masur from Damoh -------------- Rs. 10,320/4/7 Total. Deduct Rs. 4,950/0/0 money paid towards price and value of the empty bags returned --------------- Rs. 5,370/4/9 Deduct Rs. 62/12/0 price of 3 bags of masur which had deteriorated due to natural causes. --------------- Rs. 5,307/8/9 Balance Add Rs. 462/3/0 interest at 9 per cent per annum from 21-12-1944 to the date of the suit. Rs. 11/5/6 cost of regestered notices etc. --------------- Rs.5,781/1/3 Total. _______________
3. The suit had thus been filed by the Plaintiff for Rs. 5781/-, the rest having been given up. The trial Court found that the Defendant had agreed to purchase from the Plaintiff 503 bags of masur of that years' harvest kept by him at Damoh with his adatiya Liladhar for Rs. 10,153-8-9; that the Defendant had no opportunity to see the goods, nor was a sample of the goods shown to him; that the 300 bags of masur of which delivery was taken from the godown were rotten and not of merchantable quality; that the market value of the damaged goods was 12 seers per rupee; and that as there was a breach of warranty for which the Defendant could claim a diminution in price, he assessed the loss suffered by the Defendant at Rs. 1500/- -- the difference between the market price of
