The buyer cannot repudiate a contract after dispatch of goods unless evidence shows the goods were not as per specification; where title passed implies acceptance and obligation to pay.

1. This is defendant's appeal arising out a suit for recovery of Rs. 1,096. Briefly the facts are that the plaintiff respondent is a firm registered under the Partner ship Act and carries on rice and oil mill business at Bongaigaon Defendant No. 1 Shri G.N. Behere is the sole proprietor of Messrs Behere Industrial Works carrying on business at Dahanu Road. District Thana in State of Bombay Defendant No. 2 Jain Trading Corporation who carries on business in Calcutta, is the sole agent of the machineries manufactured by defendant No. 1 in Assam. On the 25th May 1957 the plaintiff placed an order for supply of one piece 45 compartment for paddy separator zigzag box complete with hopper and delivery pipes with both side axes and two brackets for both side axes with defendant No. 1. By a letter dated the 29th May 1957 the defendant No. 2 informed the plaintiff that defendant No. 1 has been advised to book the machinery and asked the plaintiff to remit Rs. 800/- either to them or to defendant No. 1. Accordingly the plaintiff on the 1st July 1957 sent a draft of Rs. 800/- to defendant No. 1. The defendant No. 1 on the 2nd September 1957 despatched a paddy separator box, and sent the R/R through the United Bank of India Ltd., Dhubri, for collection. As the consignment arrived at Bongaigaon in a damaged condition, the plaintiff did not take delivery of the consignment, nor collect the railway receipt from the United Bank of India Ltd. The plaintiff then sent a letter to the defendants to send a mechanic at their cost and see to it and make repair. As the defendant, however, failed to get it repaired and supply a proper paddy separator, the plaintiff brought the suit for refund of Rs. 800, for breach of the contract by defendant No. 1.

2. The defence taken was that the breach was committed by the plaintiff and thus he is not entitled to get back the advance given by him.

3. The trial court dismissed the suit. On appeal the Subordinate Judge, Dhubri allowed the appeal and decreed the plaintiff's suit. The matter was referred to the Division Bench by a single Judge of this Court.

4. The lower appellate court held that as the article was received in a damaged condition and thus it was not in accordance with the specification, the plaintiff was entitled to repudiate the contract and get back the advance money.

5. The points that arise for consideration in this appeal are firstly who was responsible for the breach of the contract and secondly even if there was a breach of the contract on the part of the plaintiff, whether he was entitled to get back the money which formed the price of the sale of goods.

6. The admitted facts are that the plaintiff placed an order for supply of a paddy separator box with the defendant. The contract was free on rail and further it was agreed that the bill will be cleared through the United Bank of India Ltd., Dhubri. It is also an admitted fact that the plaintiff neither collected the bill from the Bank nor took delivery of the machinery at Bongaigaon. There is no evidence to show that when the machinery was despatched it was according to the specification or it was damaged. The damage done to the machinery if at all, was during the transit period and the question is whether under these circumstances the plaintiff was entitled to repudiate the contract and not take delivery of the machinery. The plaintiff refused to take delivery on seeing that the machinery arrived in a damaged condition.

7. Defendant's contention is two - fold. He firstly contends that the title to the property passed at Thana at Bombay when t