JUDGMENT : Barman, J. - The Plaintiff is the Appellant. The suit out of which this appeal arises was filed by the Plaintiff-vendor against the Defendant-purchaser for Rs. 2,100/- as damages for alleged breach of contract for sale of rice. The purchaser Defendant had also preferred a cross-claim against the vendor-Plaintiff for Rs. 1000/- paid to the Plaintiff as earnest money. 2. The Plaintiff?s case is this: On April 1, 1960 the Plaintiff purchased 600 maunds of rice from Messrs. Kella Appalaswamy and Sons at the rate of Rs. 20/1/- per maund, F.O.R. to be booked at Koraput to Ghitpur of Barsat in West Bengal. Within three days thereafter on April 4, 1960 the Defendant entered into a contract with the Plaintiff for purchase of 600 maunds of boiled rice from the Plaintiff at the rate Rs. 20/9/- in the presence of two rice mill merchants. On the same date (April 4, 1960) the Defendant gave Rs. 1000/- to the Plaintiff said to be as earnest money. On October 17, 1960 the Plaintiff sent a wire to the Defendant requiring him to be present at the time of loading the goods in the wagon. On October 18, 1960 the rice was loaded in the wagon; on the same date the Defendant sent a telegram repudiating the contract. On April 24, 1960 the Plaintiff sent a registered letter to the Defendant to honour a Hundi for value of the rice. The Defendant refused to honour the Hnndi. There after the Plaintiff got the rice sold for Rs. 9341/-. The Plaintiff is said to have suffered a loss of Rs. 2108/- after deducting the said sum of Rs. 1000/- paid by the Defendant. The Plaintiff filed this suit for recovery of the amount claimed as damages for alleged breach of contract. 3. The defence to the suit, so far as material for this case, on which the arguments were confined was this: While admitting the contract for purchase the Defendant contended that in the contract there was an express condition that the rice would be despatched by the first wagon loaded after April 4, 1960 which would in no event be beyond August 1960; that time was essence of the contract. That apart, it was also contended that the Defendant had by letters dated August 15, 1960 and August 30, 1960 intimated that the Plaintiff had committed breach of contract and demanded refund of Rs. 1000/- advanced by the Defendant, and that he contract was at an end. The Defendant?s further point is that the said sum of Rs. 1000/- paid to the Plaintiff was by way of accommodation and not as earnest money as alleged. 4. The trial Court decreed the suit in favour of the Plaintiff for the amount claimed on the finding that there was breach of contract by the Defendant; that the said sum of Rs. 1000/- paid as earnest money was liable to be forfeited for breach of contract by the Defendant. In appeal, the learned lower appellate Court reversed the decision of the trial Court and dismissed the Plaintiff?s suit and passed a decree for the Defendant?s counter-claim of Rs. 1000/-. Hence this second appeal by the Plaintiff. 5. The main points for consideration are: Firstly, was the contract for sale of the goods by sample? Were the goods according to sample? Secondly, was time essence of the contract? Were the goods despatched within time? 6. On the question of sample, it is clear from the plaint that the Plaintiff intimated the Defendant to look to the quality and weighment before the articles were to be loaded. It is also evident from the deposition of P.W. 1 a partner of the Plaintiff?s firm who is said to have been present at the time of the contract that the sample was shown and given to the Defendant. It is evidently clear that d.w. 2, Parbhu Dayal representative of the Defendant had mentioned in his letter dated August 11, 1960 Ext. F that he had inspected the stock and had found the stock not conforming to the sample. Section 47(2) of the Sales of Goods Act provides that in the case of contract for sale by sample there is an implied condition, inter alia that the bulk shall correspond with the sample in quality. F that he had inspected the stock and had found the stock not conforming to the sample. Section 47(2) of the Sales of Goods Act provides that in the case of contract for sale by sample there is an implied condition, inter alia that the bulk shall correspond with the sample in quality. In the present case it is clear from evidence as discussed by the learned lower appellate Court that the contract between the parties was that the quality of the said 600 maunds of common boiled rice should he strictly in conformity with the simple supplied to the Plaintiff at the time of contract, and further that the goods despatched by the Plaintiff were not according to sample contracted for. 7. Then, on the question whether, in this case, time was essence of the contract it is clear from evidence that at the time of the contract in April 1960 it was made an express condition that the goods should be despatched by the first wagon after the date of the contract, namely, April 4, 1900 but at any rate not beyond August 1960. 8. Were, the goods despatched within time? It was not until October 1960, that the Plaintiff sent a wire to the Defendant requiring him to be present at the time of loading the goods in the wagon. It is evident that the Plaintiff did not avail itself of the first wagon to despatch the goods to the Defendant in terms of the contract. In fact it is in evidence of P.W. 1 Amrutalal, one of the partners of the Plaintiff firm itself that they had despatched several wagon loads of rice during the period, April, May and June, 1960 to destinations for which the Plaintiff contracted. Yet the Plaintiff did not avail itself on the first wagon for despatch of the goods in suit to the Defendant in terms of the contract. 9. In my opinion, there is no excuse for non-delivery by the Plaintiff-seller within time in terms of the contract in this case. It is in evidence that the seller got several wagons against diverse other indents between the period from April to June, 1960 and such supply of wagons was available to the Plaintiff for despatch of the goods in suit. 10. It is in evidence that the seller got several wagons against diverse other indents between the period from April to June, 1960 and such supply of wagons was available to the Plaintiff for despatch of the goods in suit. 10. That apart, Section 36(2) of the Indian Sales of Goods Act provides that where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. What is "reasonable time" is also defined in Section 63 which provides that where in this Act any reference is made to a reasonable time, the question what is reasonable time is a question of fact. In the present case, the contract was to despatch the goods by the first wagon allotted after the date of the contract, that is April 4, 1960, and in any event not beyond August, 1960. The Court below found that the Plaintiff failed to send the goods to the Defendant within contract time or within reasonable time. This is a pure finding of fact. 11. As regards the Defendant?s counter-claim for Rs. 1000/- paid by him to the Plaintiff, in view of the finding that the Plaintiff committed breach of contract for reasons aforesaid, the Defendant is entitled to get refund of the said sum from the Plaintiff. 12. In the ultimate analysis, therefore, it is clear that the Plaintiff committed breach of the contract in that the goods in question were not according to sample, nor were they despatched within time in terms of the contract or even within reasonable time. The earned lower appellate Court was therefore justified in dismissing the Plaintiff?s claim, and allowing the Defendant?s cross claim for Re. 1000/-. In this view of the case, the decision of the learned lower appellate Court is upheld. This appeal is dismissed with costs. Final Result : Dismissed