MEHROTRA, C. J.: This is defendant's appeal arising out a suit for recovery of Rs 1,096. Briefly the facts are that the plaintiff respondent is .1 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 Stale 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 hook the machinery and asked the plaintiff to remit Rs 800/ either to them or lo defendant No. 1. Accordingly the plaintiff on the 1st July 1957 sent a draft of Rs 800/ to defendant No I The defendant No 1 on the 2nd September 1957 dispatched a paddy separator box; and sent the R/R through the United Bank of India Ltd. Dhuhri. 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 lo 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. (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. (1) The lower appellate court held that un The article was received in a damaged condition and thus it was not in accordance with I lie specification, the plaintiff was entitled lo 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 second Iv even if there was a breach of the contract on the part of the plaintiff, whether he was entitled lo gel back the money which formed the price of I be 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 Hank 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 dispatched 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 lake 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 the machinery was put on the railway and thus the plaintiff had no right to repudiate The contract and refuse to take delivery If The machinery on inspection after taking delivery was found to be not according to the specification or it was damaged during the transit, he may have a right to get damages, either against the defendant or against the carrier but the plaintiff could not put an end to the contract . Secondly it is urg­ed that even if the property did not pass, with­out collecting the bill from the Bank and taking delivery, the plaintiff has no right to put an end to the contract of sale. (8) Al this stage it is convenient to refer to some of the provisions of the Indian Sale of Goods Act. Section 2 (12) defines 'quality of goods' as including their stale or condition. Section 12 lays down as follows :- " 12. (1) A stipulation in a contract of sale with reference lo goods which are the subject thereof may be a condition or a war­ranty. (2) A condition is a stipulation essential to the main purpose of The contract, the breach of which gives rise lo a right lo treat The con­tract as repudiated. (3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject The goods and treat the contract as repudiated. (4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract Dr Medhi for The respondent contends that as the quality includes the condition, any breach with regard to the quality of the goods is a breach of a condition and that gives a right to The buyer to repudiate The contract. It is not a warranty. Section 13 provides :1 13. (I) Where a contract of sale is subject to any condition to be fulfilled by the seller. It is not a warranty. Section 13 provides :1 13. (I) Where a contract of sale is subject to any condition to be fulfilled by the seller. The buyer may waive the condition or elect to treat the breach of the condition as a breach (if warranty and not as a ground for treating the contract as repudiated (2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof or where the contract is for specific goods the properly in which has passed to the buyer, the breach of any condition to be ful­filled by The seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiat­ed, unless there is a term of the contract, express or implied, to that effect (3) Nothing in this section shall affect the ease of any condition or warrant fulfillment of which is excused by law by reason of impossibility or otherwise Section 23 reads as follows :- "23 (1) Where there is a contract for the sale of unascertained or future goods by descrip­tion and goods of that description and in a deliverable state are unconditionally appropriat­ed lo the contract. either by The seller with the assent of the buyer or by the buyer will the assent of the seller the property in the goods thereupon passes to the buyer Such assent may be express or implied, and may lie given either before or after The appropriation is made (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve. The right of disposal, he is deemed lo have unconditionally appropriated the goods to the contract." Section 20 lays down as follows : - " Where there is an unconditional contract for the sale of specific Roods in deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is post­poned. " Section 21 provides : " Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putt­ing them into a deliverable state, the properly docs not pass until such thing is done and buyer has notice thereof. " (9) The contention of Mr. Lahiri for the appellant is that this was a case of a contract for the sale of future goods by description as the goods according to the specification had to be manufactured by the defendant before the goods were delivered to the buyer and thus section 23 of the Indian Sale of Goods Act is already to the present case. When the goods were despatched alter being manufactured, they were un-conditionally appropriated to the contract with the assent of the buyer and the properly in the goods passed to the buyer. He has further reli­ed on section 23 (2) to show that as there was a contract that the seller was to dispatch the goods free on rail at Dahanu Road and the sell­er had not reserved any right of disposal, us soon as the goods were put for purposes of transmission, the goods will be deemed to have been unconditionally appropriated The agree ine.nl between the parties was that the goods were to be despatched by the defendant and the bill was to be collected from the Bank by the plaintiff. Under these circumstances it cannot be said that there was no appropriation of the goods In the seller unless the goods reached their destination and further that there was no implied consent of the buyer for such an appro­priation, and also that it was a conditional appropriation to The contract within The meaning of section 23 (1) (10) Dr. Medhi appearing for the respondent has very strenuously contended that the title to the properly could not pass to the buyer under section 23 unless the appropriation was unconditional and further that it was with the assent of the buyer. His ct The defendant, it cannot be said that it was an unconditional appropria­tion. Further that as the bill had to be with drawn on payment of the price to the Bank. The appropriation cannot he regarded lo be unconditional. His ct The defendant, it cannot be said that it was an unconditional appropria­tion. Further that as the bill had to be with drawn on payment of the price to the Bank. The appropriation cannot he regarded lo be unconditional. The first argument is based on the assumption that the consignment was in the name of the consignor himself The trial court has observed in dealing with issue No 9 that the machinery was consigned in the name of the plaintiff. Dr. Medhi relied upon the following observation of the appellate court " The consignment appears lo be under sell booking Railway Receipt (Vide certified copy of the R.R.) - Mr. Lahiri who appears for the appellant, in reply con tended that this observation has not upset the finding of trial court that The consign­ment was in the name of the plaintiff and further that the observation of the lower appellate court that the consign­ment appears lo be under self booking railway receipt is not supported by any evidence. The court below wrongly referred to the cer­tified copy of the railway receipt. There is no certified copy of the railway receipt duly proved, liven in The judgment there is no mention of the exhibit of the certified copy. Dr. Medhi who appears for the respondent objected to the argu­ment of the respondent. As Dr. Medhi in support of his contention has referred to the observation made by the appellate court, it was only in the reply that the counsel for appellant could point out that there was no duly proved copy of the railway receipt even then we granted opportunity to Dr. Medhi to show that The document referred to by the lower appellate court was duly proved and showed that The consignment was in The name of the consignor lie has failed to convince us that there was and duly proved document on The record which would show that The consignment was in the name of the consignor and thus there is no reason not to accept the finding of The trial court on this question. , (11) It should also be pointed out that the judgment of The lower appellate court is based entirely on a different ground and no­where The point was taken by the present respondent that the appropriation was not uncondi­tional as the consignment was in the name of the consignor himself There is thus no force in the contention that the appropriation was not unconditional '12) The contract that the bill and the railway receipt will lie collected by the plaintiff on payment of the price to the bank does not necessarily mean that the appropriation of the Article to The contract was conditional. The appropriation was done as soon as the goods were despatched and it in order to secure payment of price the railway receipt was sent through the Bank, it cannot be said that the appropriation was conditional. unless the plaintiff collected the railway receipt, he may not have been in a position to lake delivery of The goods and to that extent the seller has secured payment of his price. But the appropriation was complete as soon as the goods were despatched and at that stage it cannot be said that there, was any condition attached by the seller to the appropriation nor can it be said that he has reserved to himself any right of disposal. It can also not be said that because the plaintiff found the goods in a damaged condition and did not lake actual delivery no assent was given by the plaintiff to the appropriation. As the contract was that after the machinery had been manufactured it will be despatched to the plaintiff and there being no evidence that when the machinery was despatched it was not in accord­ance with the specification, it cannot be said that there was no implied assent to the appropria­tion of the machinery to the contract, simply because the plaintiff refused to take delivery of The machinery when it reached the destination. That being so. section 23 in my opinion, is attracted and the title to the properly passed as soon as the machinery was entrusted to the 'carrier. (18) Dr. Medhi has referred to the case of Commr. of Income Tax v. M/s. P. M. Rathod and Co. reported in AIR 1969 SC 1394. That being so. section 23 in my opinion, is attracted and the title to the properly passed as soon as the machinery was entrusted to the 'carrier. (18) Dr. Medhi has referred to the case of Commr. of Income Tax v. M/s. P. M. Rathod and Co. reported in AIR 1969 SC 1394. In this case the agreement was that the goods were to be sent to the customers either by V. P. P. or by rail. In the latter case the railway receipt in favour of self was sent through a Bank deliver­able against payment of the demand draft drawn upon by the buyers and sent with the railway receipts. This price when received by the Bank was sent by the Bank by means of Bank Draft to the seller. In these circumstances section 25 (1) of the Sale of Goods Act was held applicable. Section 25 (1) reads as follows :- " Where there is a contract for sale of specific goods Or where goods are subsequently appropriated to the contract, the seller may. by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, not­withstanding the delivery of the goods to a buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the proper­ty in the goods does not pass to the buyer until the conditions imposed by the seller are fulfill­ed. " There was in that case a specific contract under which the seller had reserved to himself the right of disposal till certain conditions :were ful­filled by The purchaser. The next case which he has cited is The Ford Automobiles (India) Ltd. v. Delhi Motor and Engineering Co., reported in AIR 1923 Bom 125 This also was a case where from the circumstances a contract was inferred under which the goods were not to be delivered to the purchaser unless he paid the price. The railway receipt was made out by the seller in (hat case in his own name as con­signee The next case referred to is M. B. Mehta and Co. v. Joseph Heureux, reported in (1924) ILR 48 Bom 531 (AIR 1924 Bom 422). The railway receipt was made out by the seller in (hat case in his own name as con­signee The next case referred to is M. B. Mehta and Co. v. Joseph Heureux, reported in (1924) ILR 48 Bom 531 (AIR 1924 Bom 422). In this case it was observed that the question whether the property in goods agreed to be sold under a c.i.f. contract has passed or not is in each case ultimately a question of fact as to the intention of the parties. Where it is obvious on the evidence or on inferences to be drawn from the situation or conduct of the parties that the consignor did not in fact intend the goods to be delivered until the relative draft was accepted, the properly therein cannot be held to have passed on shipment These cases, in my opinion, do not assist the respondent on the facts of the present case (14) The next argument of the respon­dent is that even if the title to the properly passed to the buyer, as the quality of the machinery was a condition and that condition was not fulfilled, the plaintiff was entitled under section 12 to repudiate the contract. There are two answers to this contention. Firstly, the fact that the goods will be in accordance with the specification is a warranty and not a condi­tion. Even if, however, it is assumed that it was a condition, section 13 (2) will be attract­ed. Section 20 of the Sale of Goods Act lays down that where there is an unconditional contract for The sale of specific goods in deliverable state, the property in the goods passes to the buyer when the contract is made and it is im­material whether the time of payment of the price or the time of delivery of the goods, or both is postponed. The contract was for the sale of unascertained goods but as soon as the goods were ascertained, the contract refers back to the specific goods. The contract in this case was for specific goods and as soon as The manu­facturers made the machinery according to the specification, the property passed to the buyer and thus when the properly passed to the buyer the breach of any condition under section 13 (2) will be treated as a breach of warranty. The contract in this case was for specific goods and as soon as The manu­facturers made the machinery according to the specification, the property passed to the buyer and thus when the properly passed to the buyer the breach of any condition under section 13 (2) will be treated as a breach of warranty. Section 40 of the Sale of Goods Act provides : " Where the seller of goods agrees to de­liver them at his own risk at place other than that where they are when sold, the bluer shall, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. " This section also shows that although the seller undertakes to take the goods at his own risk to a place other than that where they are when sold, if any deterioration lakes place in the course of the transit, the buyer would be liable for it. Whether there was any deterioration for which the buyer would have been liable or not within the meaning of section 10 could only have been determined after delivery had been taken and it cannot be said that under no circumstances The buyer was bound to refuse delivery of The goods as soon as he found that The goods were in a damaged condition. (15) The court below has relied upon sec-lion 41, which lays down as follows :- "41. (1) Where goods arc delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he had a reasonable opportunity of exam­ining them for the purpose of ascertaining whether they are in conformity with The con tract. (2) Unless otherwise agreed, when the seller lenders delivery of goods to the buyer. He is hound on request to afford the buyer a reason­able opportunity of examining the goods for The purpose of ascertaining whether They are in conformity with the contract “ This section only gives the buyer a right of examination it does not give a right to the buyer to repudiate the contract The right of inspection under this section can only arise either when the delivery has already been taken or when it is tendered for delivery In the present case. The respondent did not lake deli­very and thus section 41 (1) will not be attract­ed and if the argument of the respondent is accepted that it was tendered for delivery at the railway station when it reached Bongaigaon, the only right which could he exercised by the plaintiff under section 41 (2) was to ask for the inspection of the goods but he could not repu­diate the contract and further that when the goods reached the destination under the rail­way receipt, it cannot be said that they were tendered for delivery at Bongaigaon station The lower appellate court has referred to the case of Heilbutt v. Hickson, (1872) 7 CP 438, the facts of which are quoted in all the com­mentaries as an illustration. That case, to my mind, is entirely different and the Subordinate Judge was not right in holding that the principle laid down in that case applied to the facts of the present case. There the delivery had already been taken by the buyer and thereafter the question of his right to examine arose. In my opinion, thus, the plaintiff was not justified in repudiating the contract. (16) The next point urged by the respon­dent is that even if the plaintiff was not jus­tified in repudiating the contract, he is entitled to gel back part of the consideration money when the contract has been rescinded. The sum of Ks. 800 which was sent by the plaintiff no doubt was part of the sale consideration which was sent as an advance and if the contract had been carried out, the amount would have been treated as a part of the consideration and the plaintiff would have been liable to pay the balance, but it was in the nature of an advance. The amount of advance constituted both as a security for the performance of the contract and also a part of the consideration. Till the contract was actually performed, it was only in the nature of a security for the due performance of the contract and after the contract has been actually performed the amount was to be appropriated towards the part of the consideration money. The payment of advance was in the nature of a security and the plaintiff was not right in repudiating the contract The amount of the advance money thus could be forfeited. The payment of advance was in the nature of a security and the plaintiff was not right in repudiating the contract The amount of the advance money thus could be forfeited. Reference may be made to the cases of Chiranjit Singh v Har Swarup. reported in MR 1926 PC 1, Abdul Gani and Co v Trustees of the Port of Bombay, reported in AIR 1952 Bom 310 Naresh Chandra Guha v Ram Chandra Samanla. reported in AIR 1952 Cal 93 and Kanpur Iron Brass Works and Flour Mills v Banarsi Das reported in AIK 1959 All "755 (17) Dr Medhi has referred to the case of Muralidhar Chatterjee v International Film Co lid reported in AIR I943 PC 34 in support of the contention that the suit for the recovery of the amount 01 the part of the consideration was maintainable That was a case where the suit was brought under section 64 of the Contract Act for recovery of the amount Section 64 of the Contract Act reads as follows " When a person al whose option a contract is voidable rescinds it the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall if he has received any benefit thereunder from another party to such contract restore such benefit, so far as may be to the person from whom it was received It only lays down that it a contract is rescinded then any person who rescinds the contract and has drawn any benefit under that contract has to refund it In that case in certain circum­stances the contract was rescinded by the seller himself and it was held that the seller in those circumstances was liable to pay back the part of the consideration which he has received. In the present case at no stage the seller rescinded the contract. The contract was repudiated by the plaintiff and thus section 64 will not be attract­ed in this case al all. In the result, therefore, I allow this appeal set aside the decree of the lower appellate court and restore that of the trial court but parties will bear their own costs. The contract was repudiated by the plaintiff and thus section 64 will not be attract­ed in this case al all. In the result, therefore, I allow this appeal set aside the decree of the lower appellate court and restore that of the trial court but parties will bear their own costs. (18) DUTTA, J.- I have had the advantage of going through the judgment of my Lord and the chief Justice and I agree with his con­clusion that this appeal must be allowed, but I give my own reasons (19) The facts briefly are as follows: The plaintiff M/s N. B. Rice Mills which is a registered firm carrying on business at Bongaigaon placed an order on 25-5-59 with defendant No. 1 G N Behere who carried on business at Dahanu Road. District Thana. in the State of Bombay, for a paddy separator of particular specifications. The defendant No. 2 Jain Trad­ing Corporation, a firm carrying on business in Calcutta was the sole agent of machineries manufactured by defendant No. 1 and the order was placed through defendant No. 2. As advised by defendant No. 2. the plaintiff paid Rs. 800 to defendant No. 1 as advance. Defendant No. 1 .then despatched a paddy separator on 2-9-57 from Dahanu Road Station in Bombay F.O.R to Bongaigaon in Assam and the R/R was sen I to the plaintiff through the United Bank of India Ltd. Dhubri for collection The machinery arrived at Bongaigaon in a damaged condition and hence the plaintiff did not take delivery of the same. The plaintiff's case is that the defendant failed to supply the paddy separator according to the order and hence it claims recovery of the sum of Rs. 800 paid by it together with compensation of Rs 200 and interest (20) The defendant's case is that the plaintiff knowingly and intentionally committed breach of contract by not taking delivery of the machinery under a pretext that it was damaged in transit and hence it was not entitled to re cover the advance paid (21) It is an admitted fact that the machin­ery was in proper condition when it was put on the Railway. The damage was caused in transit If the title to the property passed to the plaintiff as soon as the machinery was put on the Railway at the Dahanu Railway Station in Bombay the defendant will not be liable for the damage. So, the question is whether the title to the properly so passed Such a question is in each case a question of fact as to the intention of the parties in the present case it is quite clear that the defendant did not part with the control of the R/R which was sent to a Bank to be given to the plaintiff only on pay­ment of the price of the machinery In such circumstances. I do not think that the property in the goods passed to the plaintiff when the machinery was put F O R at Dahanu Railway Station. (22) In (1924) ILR 48 Bom 531 : (AIR 1924 Bom 422). the plaintiff shipped goods by a steamer and drew a bill of exchange and sent the same together with the relative ship­ping documents to a Bank. The Bank duly presented the bill for the acceptance of the defen­dant, but the defendant refused to accept this bill on the ground that the bill was irregular. It was held that when the goods were shipped, the shipper had not parted with the control of the shipping documents, and hence the title to the property in goods did not pass to the defen­dant at that lime. (23) In AIR 1928 Bom 125, the defen­dants ordered twenty motor cars from the plaintiffs upon terms that the plaintiffs should send them by rail and that the defendants should pay for them to Messrs. King. King & Co., al Delhi against the railway receipt. Messrs King, King and Co. at Delhi were the plaintiffs' agents to receive payment of the price from the defendants, and to deli­ver the railway receipt to them on payment. The railway receipt was made out by (he plaintiffs in their name as consignees and endorsed by Them in blank. The cars were consigned at owner's risk with the result that The railway could not be held liable for the loss thereof. It was held in this case that the plaintiffs haying instructed their agents not to deliver the rail­way receipt till payment, the appropriation was not absolute and final, but conditional on payment by the defendants. The cars were consigned at owner's risk with the result that The railway could not be held liable for the loss thereof. It was held in this case that the plaintiffs haying instructed their agents not to deliver the rail­way receipt till payment, the appropriation was not absolute and final, but conditional on payment by the defendants. (24) In AIR 1959 SC 1394 . it was hold that in the case of goods sent by Railway, as in The case of goods sent by V. P P the Railway Re­ceipts in favour of self could not he delivered to The buyer till the money was paid and al­though the goods had been handed over to a common carrier The appropriation to The contract as in the case of goods sent by V P.P. was only conditional and the performance was completed only when the monies were paid mid the Railway Receipts delivered (25) Under section 25 of the Indian Sale of Goods Act when goods are not appropriated to a contract unless and until certain conditions are fulfilled by the buyer, the property in the goods does not pass to the buyer unless and until The conditions imposed by the seller are fulfilled, even if the goods have been delivered to the buyer or to a carrier or bailee for trans mission to the buyer. In the present case, it is not disputed that the arrangement was that the buyer would called the Railway Receipt from the Bank on payment of the balance of the price of the machinery. The Bank thus became an agent of the seller for the recovery of the price and the seller retained control over the goods through the agent till the price was paid. In the above view of the matter I hold that The properly in the goods in the present case did not pass to the plaintiffs when the said goods were put on the railway at Dahanu Railway Station (26) It may however, be noted that there was a contract that the defendant would send the floods F. O. R to Bongaigaon and that the Railway Receipt would be sent to a Bank from which the plaintiff would take the same and take delivery of the goods. Whether or not, there is a breach in a F. O. R contract, depends upon the terms of the contract. Whether or not, there is a breach in a F. O. R contract, depends upon the terms of the contract. There was no condition in the contract of the instant case that before taking delivery of the Railway Re­ceipt from the Bank the plaintiff would inspect the goods at the railway station and could re­fuse to take delivery of the Railway Receipt if it was found that the goods were damaged in transit. In these circumstances, there was clearly a violation of the contract on the part of the plaintiff in not taking delivery of the Railway Receipt. After taking delivery of the goods if there was found to be any damage in transit the plaintiff could recover damages according to law. But as the plaintiff is guilty of violating the contract, it cannot recover the advance paid which was apparently earnest money so his suit must fail. (27) PUR CURIAM: In The result this ap­peal is allowed and the suit is dismissed. The parties will, however, hoar their own costs. Appeal allowed