JUDGMENT P.B. Mukharji, J. - This is a suit for the recovery of a sum of Rs. 1143 being the damages for non-delivery of goods and for refund of Rs. 500 which was paid in advance as part of the price. The contract is contained in two letters dated 27th March 1943. The first letter is from the plaintiff placing an order with the defendant in the following terms: I shall be much obliged if you would kindly accept my order for supplying 6 wagons of dust coal required for the manufacture of bricks at Konnagar Railway Station as per priority class 'N' issued in my favour by the Chief Engineer and Controller of Bricks dated 22nd March 1943. Please let me know the name of your loading station also. 2. On the same day the defendant company wrote in the following terms: With reference to your letter of date we have the pleasure to accept your order for 6 wagons of dust coal from our Angarpatra Colliery for your brick-field at Konnagar subject to the sanction of the authorities concerned. 3. The only main issue raised by the defendant company in this case is "what was the contract between the parties"? The other issue is "what damge, if any, is payable by the defendant?" 4. The dispute has raged over the question as to who was liable under the contract to supply railway wagons. The defendant's case is that it failed to deliver the goods because it could not obtain any railway wagon. Non-delivery is said to be excused on the ground of failure to obtain railway wagons. The defendant contends that the plaintiff had the liability to supply wagons under the contract and the plaintiff has failed to do so. The plaintiff contends that he had no liability to supply wagons and hi3 only contract with the defendant was that the defendant shall deliver and supply dust coal to the plaintiff at Konnagar Railway Station. The plaintiff contends farther that he made it quite clear in his offer which I have quoted above that the defendant was to 'supply' 6 wagons of coal and he also Bays that his only obligation as a manufacturer of bricks was to produce the priority certificate of the Chief Engineer and Controller of Bricks. 5. The procedure may be stated briefly so far as it appears from the evidence. 5. The procedure may be stated briefly so far as it appears from the evidence. A manufacturer of bricks, if he wishes to have coal supplied to him, has to produce the necessary priority certificate from the Chief Engineer and Controller of Bricks. Then the buyer sends that certificate to the seller. The seller thereupon on the basis of such certificate proceeds to obtain permission from the Controller of Coal Distribution for railway wagons. 6. The defendant's contention is that the words "subject to the sanction of the authorities" in the letter of acceptance of 27th March 1943 meant sanction of the railway authorities. It appears clearly from the letter of the defendant dated 13th April 1943 that the words "sanction of the authorities" in the letter of acceptance meant sanction from the Controller of Coal Distribution. That the intention of the parties also referred to this sanction is plain from the admission contained in the answer given by Srimany to Q. 91. It has been admitted in evidence on behalf of the defendant that he obtained such sanction to despatch 6 wagons of dust coal against the plaintiff's order. But he says that was not enough and although according to him he went on indenting for railway wagons he actually in point of fact never got any wagons to transport the coal from the colliery to Konnagar Railway Station. 7. In my judgment this is not a ground which in law can excuse the defendant's non-delivery of the goods under this contract. The defendant wants to construe the word "sanction" in the letter of acceptance of 27th March 1943 as meaning supply of railway wagons. In my opinion such a construction is not permissible. That the authorities had sanctioned as a matter of fact the despatch of 6 wagons will be clear from the admission not only in the oral evidence of Srimany but also in the letter of 13th April which is plaintiff's document No. 8. If the defendant wanted to excuse itself from the performance of the contract on the ground of failure by the railway authorities to deliver railway wagons then in my judgment the defendant should have made express stipulation to exclude its liability on that ground. The defendant has not done so. If the defendant wanted to excuse itself from the performance of the contract on the ground of failure by the railway authorities to deliver railway wagons then in my judgment the defendant should have made express stipulation to exclude its liability on that ground. The defendant has not done so. The times were such that there were various difficulties and restrictions in respect of movement of coal from one place to another and if the defendant wished to be exempted from its liability under the contract to supply coal on the ground of failure to obtain supply of railway wagons, it was the duty of the defendant to see that a special stipulation to that effect was included in the contract. In such a case where the dearth of railway wagons was present in the mind of the contracting parties, the absence of an express stipulation in the contract excusing performance of such contract on the ground that wagons were not available means that such ground cannot be put forward as an excuse for non-performance. Lord Wright in the Privy Council decision of AIR 1935 128 (Privy Council) observes as follows: In a case such as the present it may be questioned whether the Court should imply a condition resolutive of the contract when the parties might have inserted an express condition to that effect but did not do so, though the possibility that the things might happen as they did was present in their minds when they made the contract. This was one of the grounds on which the Judges of the Supreme Court were prepared to decide the case. Their Lordships do not indicate any dissent from the reasoning of the Supreme Court on this point. 8. The construction of the contract is in my opinion quite clear. The order of the plaintiff was upon the defendant to supply 6 wagons of dust coal for the purpose of manufacturing bricks at Konnagar Railway Station. Mr. Meyer made a faint suggestion that this meant manufacturing at the Railway Station but he gave it up as quite untenable at a later stage. This order makes it clear that the coal was to be delivered to the plaintiff at Konnagar Railway Station and there was and could be no question of manufacturing bricks at the Railway Station. Mr. Meyer made a faint suggestion that this meant manufacturing at the Railway Station but he gave it up as quite untenable at a later stage. This order makes it clear that the coal was to be delivered to the plaintiff at Konnagar Railway Station and there was and could be no question of manufacturing bricks at the Railway Station. That offer or order was accepted "subject to sanction of the authorities." I construe the words "sanction of the authorities" in the context and surrounding circumstances of this case as meaning the sanction of the Controller of Coal Distribution and not as meaning actual supply of railway wagons by the railway authorities. 9. Mr. Meyer appearing for the defendant company has drawn my attention to the third letter of 27th March 1943 and has argued that the words "f.o.r. Katrasgarh" mean a contract in which the buyer has the liability to procure the wagons. This third letter of 27th March 1943 is in the following terms: In continuation of our letter of date we have to confirm that the rate of dust coal would be Rs. 10 per ton f.o.r. Colliery Katrasgarh or at Rs. 9 provided the market rate is proved to be so by you. 10. On the facts of this case I cannot accept that argument. The buyer wanted delivery of the coal at the Konnagar Railway Station and he also wanted to know by the terms of that offer the name of the loading station. The third letter of 27th March 1913, in my view of construction, was only intended to 'confirm' or fix the price or 'rate.' That price was fixed with reference to f.o.r. Katrasgarh. In other words the contract was that the buyer will pay the price prevailing at the railhead at Katrasgarh (as opposed to Calcutta or Konnagar price) and will also pay for the railway freight between Katrasgarh and Konnagar Railway Station. 11. The words f.o.r. are well known words in commercial contracts. In my judgment they mean when used to qualify the place of delivery, that the seller's liability is to place the goods free on the rail as the place of delivery. Once that is done the risk belongs to the buyer. The risk of transit and the burden of the freight m f.o.r. delivery contract therefore are borne by the buyer. Once that is done the risk belongs to the buyer. The risk of transit and the burden of the freight m f.o.r. delivery contract therefore are borne by the buyer. But the words f.o.r. simpliciter do not in my judgment mean that the buyer in every case has responsibility to supply the railway wagons. Whether in a particular case on a particular contract the words 'f.o.r.' will mean buyer's responsibility to procure railway wagons or whether it will mean that the availability of railway wagons is the basis of the contract the absence of which will lead either to frustration or discharge of seller's obligation will depend on the facts of each case. The words 'f.o.r.' may qualify delivery or the place of delivery and again they may qualify the price. Here the words 'f.o.r.' in the third letter of 27th March 1943 according to my construction qualify price only because the place of delivery was by the other two letters the place of destination Konnagar Railway Station. In other words, this is a case not of 'f.o.r. delivery' which is never the place of destination but is a case of f.o.r. price only. 12. Mr. Meyer had relied on two cases-one is John Inglis v. William Stock, reported in (1885) 10 A.C. 263 : (54 L.J.Q.B. 582) and the other is H.O. Brandt & Co. v. H.N. Morris & Co., reported in (1917) 2 K.B. 784 : (81 L.J.K.B. 101). These authorities in my judgment do not help Mr. Meyer either on the facts or on the law. Both the cases are cases of f.o.b. delivery and not f.o.b. price. In the first case the point for decision was that in a f.o.b. contract once the goods have been put on board the ship the buyer has sufficient insurable interest in the goods. As the Lord Chancellor at p. 268 as well as Lord Blackburn at p. 271 of the Report made it: quite clear that under a f.o.b. delivery contract the purchaser was to name the ship and until that was done the seller obviously could not put it on board that ship. In the other case Viscount Reading C.J. at p. 795 also points out that the characteristic of a f.o.b. delivery contract is that the seller has to select his own ship and find that ship for the buyer. Mr. In the other case Viscount Reading C.J. at p. 795 also points out that the characteristic of a f.o.b. delivery contract is that the seller has to select his own ship and find that ship for the buyer. Mr. Meyer argues on a parity of reasoning on the basis of these authorities that in f.o.r. contract, the buyer must find the railway wagon. This argument in my judgment is the result of a confusion of thought and expression which suggests that the words 'f.o.r.' or 'f.o.b.', have a meaning in abstraction without reference to the terms of a particular contract. If these words qualify the place of delivery in a particular contract then certain consequences follow while if they qualify only the price or as to how the price is to be fixed then the consequences are not necessarily the same as for instance when the price charged is f.o.r. but the place of delivery is the place of destination as in this case, and not merely "Free on Rail." The nature of a contract with f.o.b. delivery is discussed in Colley v. Overseas Exporters Ltd., (1921) 3 K.B. 302 : (90 L.J.K.B. 1801) and in the chapter on delivery in Benjamin on Sale, Edn. 6th, p. 785 and I rely on these observations. 13. In my judgment each case has to be decided on the facts of the particular contract which is before the Court. The first two letters of 27th March 1943 do not clearly impose any liability on the buyer to secure railway wagons. My reading of the contract before me is that the buyer wanted 6 wagons of dust coal and he accordingly placed an order with the defendant. All that the buyer stipulated was that the delivery should be made at Konnagar Railway Station and not f.o.r. Katrasgarh. As to how the delivery is to be effected at Konnagar Railway Station and on what basis and condition was a matter for the seller to stipulate. He could have stipulated that he would only accept the order if the buyer supplied the railway wagons. As to how the delivery is to be effected at Konnagar Railway Station and on what basis and condition was a matter for the seller to stipulate. He could have stipulated that he would only accept the order if the buyer supplied the railway wagons. He did not do so on the facts of this case, and indeed accepted the order to supply 'six wagons.' He accepted the order which in my opinion meant liability to deliver at Konnagar Railway Station and necessarily implied liability to procure whatever means there could be to effect such delivery at Konnagar Railway Station. The third letter of 27th March 1943 was only for the purpose of fixing the price with reference to f.o.r. Katrasgarh. Apart from the price, that letter in my view has no bearing on other parts of the contract. The words 'f.o.r. Katrasgarh' therefore in that letter must mean with reference to the facts of this case as determining the price of the goods and nothing else. 14. The evidence in this case on the facts supports the view that I take. The plaintiff in answer to Q. 5 says he supplied to the defendant the priority certificate issued in his favour for 6 wagons of dust coal and he says so also in answer to Q. 6. In fact in answer to Q. 35 be says that after the certificate is obtained the consent of the defendant is required which consent the defendant at first gave in March 1943 but later refused in February 1944. See also his answers to Q. 41 to 45. He definitely makes the case in cross-examination that he has nothing to do with the railway authority and the procurement of wagons according to him was the duty of the defendant (Q. 97 to 103). 15. The defendant's evidence is that the arrangement for the defendant ('plaintiffs'?) liability to supply wagons was an oral arrangement (Q. 7) and he admits that there was not a word about wagons in the letter of acceptance (Q. 8 to 12). 15. The defendant's evidence is that the arrangement for the defendant ('plaintiffs'?) liability to supply wagons was an oral arrangement (Q. 7) and he admits that there was not a word about wagons in the letter of acceptance (Q. 8 to 12). The defendant also says that he never informed the plaintiff in writing that the defendant was indenting wagons but was not getting supply of wagons but came forward with the story that the plaintiff used to come occasionally (Srimany Q. 33 to Q. 38) suggesting thereby that the plaintiff must have been informed during such alleged visits-a case which was never put to the plaintiff when he was in the box. The answer which the defendant gave to Q. 91 in my opinion settles the decision of this case. There the defendant admits that the sanction which he referred in his letter of acceptance dated 27th March 1943 was the sanction mentioned in the letter of 13th April 1943 which is only the sanction of the Controller of Coal Distribution. It is common ground and admitted that the sanction of the Controller of Coal Distribution was in fact obtained. If that is so, then the exception or the condition which the letter of acceptance stipulated is satisfied when that sanction of the Controller of Coal Distribution was obtained, As there was no further reservation or exception to excuse the performance of the seller's liability the contract becomes absolute in the sense pointed out by Lord Porter in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd., 1942 A.C. 154 at p. 204 : (1941 2 ALL E.R. 165). The seller therefore in my opinion in this case both on the law and on the facts is not entitled to put forward the non-availability of railway wagons as a ground of non-performance of the contract by the defendant. Defendant only stipulated for sanction of the Controller of Coal Distribution and that stipulation was satisfied when that sanction was obtained. Thereafter there was an unqualified liability on the seller to deliver the coal at Konnagar Railway Station. 16. The conduct of the defendant also supports the view I take. Srimany admits that he sells soft and hard coke to private parties (Q. 55) and that he never sold any dust coal to any private party (Q. 68). Thereafter there was an unqualified liability on the seller to deliver the coal at Konnagar Railway Station. 16. The conduct of the defendant also supports the view I take. Srimany admits that he sells soft and hard coke to private parties (Q. 55) and that he never sold any dust coal to any private party (Q. 68). A clear question was put to him in cross-examination as to whether the defendant specifically mentioned about the procurment of wagons by the buyer in cases of contracts of purchase by private parties and his answer was that he took special care to mention in such contracts in writing that the procurement of wagons would be the responsibility of the buyer (Q. 69 to 70). If that be so, it is inexplicable why in this case which is the only contract of its kind by the seller to sell dust coal to a private party this stipulation should be absent and the absence of such stipulation can only lead to the inference that it was not the intention of the parties in the contract before me that the liability to procure railway wagons will be of the buyer. Secondly, there is another conduct of the defendant which bears on this question. He never wrote to the plaintiff that he had any difficulty in procuring railway wagons. It seems to me incredible that the very ground on which the defendant claims to be excused for non-delivery is never mentioned in the correspondence until 29th January 1944, and that also only in reply to the plaintiff's pleader's letter of demand dated 26th January 1944. It was on 29th January 1944 that the defendant came forward for the first time with the story that he had been continually indenting for wagons but not a single wagon was available. I do not accept Srimany's testimony that he orally informed the plaintiff about the wagons and I accept the plaintiff's evidence on the point that he was never told anything about the non-availability of wagons. The case of indenting for wagons made by the defendant has certain features which do not inspire confidence. While the suit was pending a letter was written by the defendant's solicitor dated 20th July 1945 to the Coal Area Superintendent, Dhanbad, East Indian Railway who replied on 25th July 1945 stating that the original indents were not available. The case of indenting for wagons made by the defendant has certain features which do not inspire confidence. While the suit was pending a letter was written by the defendant's solicitor dated 20th July 1945 to the Coal Area Superintendent, Dhanbad, East Indian Railway who replied on 25th July 1945 stating that the original indents were not available. The Coal Area Superintendent of the East Indian Railway of course has not been called to give evidence in what circumstances it is now being said that the original indents are not available. In the place of original indents an indent book of the defendant company has been produced and its entries have been tendered purporting to show that from April 1943 to December 1943 the defendant went on indenting for railway wagons without success. That indent book was written by one Tarapada Mitter who however has not given evidence on the ground that he had left the service of the defendant (Q. 58 to 60). There is no correspondence between the defendant and the Railway making any enquiry whatever why no wagon was being supplied against the indents and the reason given for making no such enquiry is that the defendant never corresponds with the Railway on the point "it being the business of the buyer" according to the defendant (Q. 30 to 31). But then again the defendant admits that it does correspond with the Railway if the buyer wishes to continue the indent (Q. 32). But as I have said before the buyer was never informed at all in this case that the wagons were not being obtained and therefore there is and can be nothing in writing to show whether the buyer wished them to continue the indent or not. As there is no writing the gap was attempted to be filled up by Srimany by suggesting visits and conversation (Q. 33). There was a further embellishment of the case by introducing telephone in answer to Q. 104. The way Srimany answered these questions gave me the impression that he was not telling the truth before the Court. I have come to disbelieve his testimony particularly on this point of indent of wagons, apart from the fact that no suggestion about this conversation and telephone talks was ever put to the plaintiff in cross-examination. 17. The way Srimany answered these questions gave me the impression that he was not telling the truth before the Court. I have come to disbelieve his testimony particularly on this point of indent of wagons, apart from the fact that no suggestion about this conversation and telephone talks was ever put to the plaintiff in cross-examination. 17. There is yet another reason why I consider the non-availability of railway wagon not to be an excuse for non-delivery by the seller in this case. It is in evidence that the seller got several wagons against diverse other indents between the period from March to December 1943 and such supply of wagons was available at Katrasgarh Railway Station. The despatch book showing the destination of wagons from Katrasgarh Railway Station was disclosed at the eleventh hour and the plaintiff never had any opportunity to inspect them (Srimany Q. 44 and 45). It is also clear from evidence that railway wagons were coming to Konnagar Railway Station carrying coal for the plaintiff from other sources as have been proved by the bills and the relevant railway receipts of Ramsaran Das during the period from March 1943 to June 1943, as also by the bill of Beharilal and Co. and the relevant railway receipt in February 1944. It is therefore apparent that railway wagons carrying coal for the plaintiff were coming to Konnagar Railway Station and were available. The plaintiff performed his part of the contract by producing the priority certificate and the condition of acceptance was satisfied by the obtaining of sanction from the Controller of Coal Distribution for supply of wagons to the plaintiff. The defendant thereupon took upon itself the responsibility, and rightly in my view, to indent wagons for the plaintiff on the basis of the sanction of railway wagons granted by the Controller of Coal Distribution. It may be unfortunate that in point of fact the defendant may not have obtained an actual supply of wagons against such indent but the contract in my view was such as cannot be said to absolve the defendant from its liability for the failure to deliver the coal which it engaged to deliver at Konnagar Railway Station even though such failure may have been occasioned by the nondelivery of railway wagons by the railway authorities, and for which non-delivery of wagons the defendant may not have been at fault. It will be appropriate to rely on the following observation of Blackburn J. in Taylor v. Caldwell, (1863) 3 B. & S. 826 at p. 833 : (32 L.J.Q.B. 164) approved by Lort Wright in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd. 1942 A.C. 154 at p. 204 : (1941 2 ALL E.R. 165): There seems no doubt that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burthensome or even impossible. 18. It is necessary to observe that the law merchant implies in contracts with f.o.b. delivery the liability on the buyer to name the ship. The buyer's liability to name the ship in f.o.b. delivery contract necessarily means that unless that named ship arrived at the named port the seller's obligation to put the goods free on board that ship cannot and does not arise. It is in evidence in this case that railway wagons did leave Katrasgarh Station (Srimany Q. 44). What is being said is that such wagons could not be used for the buyer. This I am afraid cannot be a ground for which the buyer can suffer unless there is a special contract or stipulation to that effect. As there is none in this case I hold that it was no part of the buyer's obligation in this case to supply railway wagons. 19. In describing the nature and character of f.o.b. contract usually understood as indicating place of delivery the statement of the law on the subject is made in the following terms in 29 Halsbury (Hailsham Edition) p. 225 Art. 300: Where goods are sold F.O.B. the duty of the seller is to deliver the goods on board the ship at his own expense for carriage to the buyer. Normally the terms of the contract either specify the ship or line upon which the goods are to be loaded or entitles the buyer to give subsequent instruction to the seller in regard to the shipment. Normally the terms of the contract either specify the ship or line upon which the goods are to be loaded or entitles the buyer to give subsequent instruction to the seller in regard to the shipment. Now in the f.o.r. contract, the terms of the contract do not usually and do not in this case specify any particular railway or wagon on which the goods are to be loaded nor does the contract in this case entitle the buyer to give any 'subsequent instruction' to the seller with regard to the railway. Therefore while there is an obligation "normally" under the f.o.b. contract for the buyer to name the ship there is and can be no corresponding obligation apart from special agreement in a f.o.r. contract for the buyer to name the railway. Each ship unlike a railway is a separate entity, with separate voyage insurance, with each voyage a separate venture with separate charter-party, with specified route from which deviation is possible only in specified cases, leading to different conditions of carriage such as right of jettison etc., unlike the conditions of carriage by railway. It is therefore in the fitness of things that in a F.O.B. contract the naming of a particular ship is important and relevant to the carriage of goods and the conditions of such carriage. As at present advised, I am not at all convinced that all the technicalities and incidents of f.o.b. contract should be imported into f.o.r. contract, and I am not prepared to hold that even in F.O.R. delivery contract the buyer has the responsibility to find name and supply the Railway wagon to the seller. As S. 36, Sale of Goods Act provides, whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract expressed or implied between the parties. I have held there is no express or implied contract in this case for the buyer to supply railway wagons to the seller. The fact that the price was to be f.o.r. Katrasgarh does not make any difference. It is true that apart from any such contract goods sold are to be delivered at the place at which they are at the time of the sale. The fact that the price was to be f.o.r. Katrasgarh does not make any difference. It is true that apart from any such contract goods sold are to be delivered at the place at which they are at the time of the sale. Here there was a special agreement or contract that the goods are to be delivered at Konnagar Railway Station and not at the place where the goods were. The observation of Vaughan Williams L.J. in Wimble v. Rosenberg, (1913) 3 K.B. 743 at p. 750 : (82 L.J.K.B. 1251) as well as the observation of Buckley L.J. at pp. 752-53 support the view that I take. The statement of the law in 29 Halsbury (Hailsham Edition) at p. 228 Art. 308 on f.o.r. contract is clear on this point: Under a free on rail contract (f.o.r.) the seller undertakes to deliver the goods into railway wagons or at the station depending on the practice of the particular railway at his own expense. These contracts differ from the ordinary inland contract of sale only in respect of the place at which the delivery is to be made which puts on the seller an item of cost over and above that of the goods themselves and also prima facia fixes the point at which the property passes and the risk falls upon the buyer and the price becomes payable. But the place of delivery in this contract is the place of destination, and if the differentiating criterion of Halsbury be applied, then this contract in suit is not really a f.o.r. contract at all but an ordinary inland contract. For these reasons I am unable to accede to the argument of Mr. Meyer advanced on the basis of the authorities on f.o.b. delivery contracts in John Inglis v. William Stock, (1885) 10 A.C. 263 : (54 L.J.Q.B. 582) and H.O. Brand & Co. v. H.N. Morris & Co., (1917) 2 K.B. 784 : (87 L.J.K.B. 101) that there is any obligation for the buyer apart from any special agreement to supply railway wagons in a contract with f.o.r. price. 20. On the question of construction and on the point of law. v. H.N. Morris & Co., (1917) 2 K.B. 784 : (87 L.J.K.B. 101) that there is any obligation for the buyer apart from any special agreement to supply railway wagons in a contract with f.o.r. price. 20. On the question of construction and on the point of law. I am of the opinion that the first two letters of 21st March 1943 on a proper interpretation bear the meaning that the contract between the parties was a contract to supply the dust coal at Konnagar Railway Station subject only to one condition namely the obtaining of the sanction of the Controller of Goal Distribution and when the condition was satisfied, it became an absolute and unqualified contract in the sense that Lort Porter discusses in Joseph Constantine v. Imperial Smelting Corporation Ltd., 1942 A.C. 154 at pp. 203-5 : (1941 2 ALL E.R. 165). I am also of the opinion that whatever may be the position in f.o.b. contract where a port may be served by different ships and different liners, in a f.o.r. contract with only a monopoly railway serving a particular station there is no obligation on the part of the buyer apart from the express stipulation to that effect to procure railway wagons and to make them available to the seller. 21. For the above reasons, I have come to this conclusion. On the facts I hold that the contract between the parties was that the defendant agreed to supply six wagons of dust coal to the plaintiff at Konnagar Railway Station. The price was fixed with reference to f.o.r. Katrasgarh which was the place of the Colliery. On the facts it was not the intention of the parties that the buyer should bear the responsibility to supply the railway wagons to the seller. I hold further on the facts that the only reservation in the matter by the seller was that the sanction of the authorities which in this case meant the sanction of the Controller of Coal Distribution should be obtained. That sanction was in fact obtained and the condition or reservation satisfied. Thereafter seller's failure to deliver was in my opinion a breach of contract on his part. 22. That sanction was in fact obtained and the condition or reservation satisfied. Thereafter seller's failure to deliver was in my opinion a breach of contract on his part. 22. Even if the position in law were otherwise and even if there was any liability of the buyer to supply such wagons such liability in my view has been waived in this case, by reason of the fact that it was the seller who indented the wagons and not the buyer, assuming that the ease for indent for wagons made by the defendant is true. If it was the buyer's liability to procure wagons I see no reason why the seller should take the responsibility to indent wagons. I am however not at all satisfied with the evidence about the indent of wagons by the seller. I am not satisfied with the evidence of the defendant that the wagons were not available at Katrasgarh for bringing the coal to the plaintiff. Srimany was so obsessed with the idea of impressing the Court that there was a stipulation for supply of railway wagons that when the Learned Counsel in cross-examination put to him the letter of 13th April 1943 and asked him whether it referred to sanction from the Controller of Coal Distribution, he insisted on saying that the letter related to the sanction from the Loco Superintendent of the Railway and not the Controller of Coal Distribution until he had to be faced with that letter and made to read it whereupon he had to admit that the sanction was not from the Railway but from the Controller of Coal Distribution (Q. 88 to 91). Again Srimany attempted to say that no priority certificate was produced by the plaintiff as indeed was the case made in paragraph 4 of the written statement. But then he had to admit that in fact priority certificate was produced by the plaintiff and made the best of a bad job in trying to get out of the allegation made in paragraph 4 of the written statement by suggesting that he meant 'effective' or 'have priority' certificate (Q. 109 to 119). 23. In my judgment therefore the defendant committed breach of the contract by non-delivery. 24. The next question is about damages. It depends on the date of the breach and the price prevailing on that date. 23. In my judgment therefore the defendant committed breach of the contract by non-delivery. 24. The next question is about damages. It depends on the date of the breach and the price prevailing on that date. According to the defendant the contract was kept alive until December 1943 after which Srimany says that the contract stood 'ipso facto' cancelled and he ceased indenting for wagons. In the letter of 29th January 1944 the defendant's pleader wrote to say that the defendant was even then prepared to supply the coal provided the plaintiff arranged for wagons, and indeed charged the plaintiff with attempt to cancel the order. If the plaintiff was to arrange for wagons at that point of time, why then was the defendant so long indenting and arranging for wagons? The reply from the plaintiff's pleader dated 4th February 1944 demanded delivery within seven days, and stated that in default the plaintiff would claim refund of Rs. 500 and also for loss and damage. The plaintiff makes it clear in that reply that he had no desire to cancel the contract and was willing to take delivery within a week. The final refusal to deliver is contained in defendant's pleader's letter of 10th February 1944. The date of breach therefore was in February 1944. The letters in March 1944 record the refusal of the defendant to give for the second time the consent letter for supply of wagons. The plaintiff has given evidence of purchase and rates from (1) Ramsaran Das & Bros from March 1943 to June 1943, from (2) Beharilal & Co. in February 1944 and from (3) Mandal and Co. from May to July 1944. 25. On the facts I hold that the breach occurred in February 1944 and the rate prevailing at that time as appears from the bills of Beharilal & Co. exhibited in this suit was Rs. 19 per ton (Ex. C.) That rate was for slack coal. The plaintiff in answer to Q. 78 has said that slack coal and dust coal ate the same. There has been no cross-examination challenging that statement. I hold therefore that the rate of damage at which the defendant should pay is Rs. 19 per ton. 26. The contract price at Rs. 10 per ton for 6 wagons comes to Rs. 1,143 as pleaded in paragraph 8 of the plaint. There has been no cross-examination challenging that statement. I hold therefore that the rate of damage at which the defendant should pay is Rs. 19 per ton. 26. The contract price at Rs. 10 per ton for 6 wagons comes to Rs. 1,143 as pleaded in paragraph 8 of the plaint. That has not been challenged in cross-examination and it is conceded that the minimum weight of each wagon is 19 ton 1 cwt., so that 6 wagons altogether make 114 tons 6 cwt. As I hold the rate of damage is at Rs. 19 per ton the value of six wagons of coal at that rate comes to Rs. 2,171-11-2 leaving out the fraction of a pie. The damages that the plaintiff is entitled to will be the sum of Rs. 1,028-11-2 being the difference between the market price of Rs. 2171-11-2 and the contract price of Rs. 1,143. It is admitted that the plaintiff paid Rs. 500 in advance to the defendant towards the supply of six wagons of coal as will appear from the receipt dated 15th April 1943. The plaintiff is entitled to the return of the said money. 27. There will therefore be judgment for the plaintiff for the sum of Rs. 1,528-11-2 and costs. I do not allow any interest.