This judgment was originally given extempore in open court at the close of the case. I have reduced it to writing at the request of the parties.

The claim arises upon a contract for the sale of electrical fittings. The major part relates to four crystal chandeliers which were especially made in Germany for the decoration of the Istana Darul Tiana then under construction. Mr. Yeo Ban Tai of the defendant company flew to Singapore and placed the order with the plaintiff company. He does not dispute that order or that he subsequently refused to take delivery. He says that he was entitled to do so because he had cancelled the order when the plaintiff failed to deliver in due time.

The plaintiff does not accept that cancellation. He says firstly that the defendant had no right to cancel because any right to cancel for delay was expressly excluded from the contract. He relies upon a condition printed upon the reverse of the documents making up the defendants' part of the contract, and which were all signed by Mr. Yeo. That condition reads as follows:

"Default in delivery or delays shall not entitle the Buyers to cancel this Contract and no claim or other compensation shall lie against the Company in respect of any loss suffered thereby by the Buyers."

Counsel for the defendant submits that this condition does not form part of the contract because it appears only on the reverse of the documents and there is nothing on their face to draw the condition to the attention of the person signing or to indicate that he should for any reason turn over. I agree with that argument. The defendant himself goes further and says expressly that he did not see the condition at the time of signing and that it was not drawn to his attention. I do not necessarily accept his word for that, but it does not matter. Where the condition is not obvious upon the face of the contract it is up to the party relying upon it to show that the other party knew or should have known of its existence. The only way that the plaintiff could have done that in the particular circumstances was through a witness who is no longer available to him. It was suggested that Mr. Yeo must have seen the condition on the reverse of the first document when he signed the second, and so on. I do not accept that. He said that he signed without reading even the face of the documents and I can well believe that of him. And in that case it would be easy to sign each paper by merely pushing up the one above it. The plaintiff fails on this point.

It is therefore not necessary for me to deal with the question of an express waiver by Mr. Eric Teo, the person from the plaintiff company who then dealt with Mr. Yeo Ban Tai, was no longer available. But for the record I should say that I think it unlikely to have succeeded. It would have depended solely on the word of Mr. Yeo. He made a very poor impression upon me and I am not inclined to place much weight on his evidence.

The other question is whether time was of the essence of the contract, for where it is a buyer is entitled to rescind when the seller fails to meet the due date. Time usually is of the essence of commercial contracts. But it is not always necessarily so. The circumstances may show otherwise. In this case I think they do and for the following reasons:

1. The contract uses simply the words "Delivery:-One Month". It does not give a specific date. It does not even say "by" or "within" one month. There is nothing to show from when the month would start to run.

2. The letter of credit drawn on the instruction of Mr. Yeo gives a last date for shipment which was some seven weeks after the signing of the contract and was also later than what Mr. Yeo now says was the completion date for the Istana contract.

3. Mr. Yeo took no action at all upon receipt of the plaintiff's letter at January 13.

4. He purported to cancel the contract on January 23 without making further enquiry from the plaintiffs as to whether the goods had by then