( 1 ) THIS is A plaintiffs second appeal from the judgment and decree of the learned Additional District Judge affirming judgment and decree of the trial Court dismissing the appellant s suit for the recovery of Rs. 1,072. 00 on account of damages alleged to have been suffered as a result of the breach of contract of supply of moong by the defendant. ( 2 ) THE plaintiff a partnership firm according to the averment in the plaint has entered into a contract with the defendant also a partnership firm for the purchase of 200 bags of moong of first quality at the market rate of Rs 23 per bag and 40 bags of chamki or chinai moong first qualityat the rate of Rs 28 per bag. The contract was effected through correspondence on 28-9-1954 and 7-10-1954 respectively. Delivery was to be effected to the plaintiff firm at Delhi by the defendant by sending the goods by rail. The defendant was to send the goods by R/r, the sender being both the consignor and the consignee. The payment was to be received at Delhi through a Delhi Bank which was to endorse the R/ r in favour of the plaintiff after receiving the payment for and on behalf of the defendant The defendant informed the plaintiff by a telegram dated 28-9-1954 that 200 bags of moong best quality, had been purchased by them for the plaintiff at the rate of Rs 23 per bag each bag to weigh 110 seers including barden. Intimation of this purchase was also given by a letter dated 30-9-1954 As regards the purchase of 40 bags of chamki moong information thereof was given by a letter dated 7-10-1954. The sale so proceeds the averment was according to quality which was to be the best quality. On 30-9-1954, the defendant also mentioned in the letter informing of the purchase of 200 bags adding that a sample of the moong purchased had been sent and if the sample did not answer the description of best quality, the defendant be informed of the same. The plaintiff, it is pleaded, wanted to buy only if the goods arrived were according to the stipulated quality THESE goods were inspected by the plaintiff on their arrival at the railway godown and it was found that they were below average quality and were definitely not the best quality. The plaintiff, it is pleaded, wanted to buy only if the goods arrived were according to the stipulated quality THESE goods were inspected by the plaintiff on their arrival at the railway godown and it was found that they were below average quality and were definitely not the best quality. The plainliff accordingly refused to take delivery of these goods and sent a wire to the defendant on 1-11-1954 stating that moong was not best quality according to the contract and no sample had been received. The delivery was thus not accepted. It Is on these averments that the present. suit for damages was instituted ( 3 ) THE defendant-firm in the written statement contested the claim pleading by way of preliminary objections that the plaint did not disclose a complete cause of action and that if did not state that the plaintiff was ready and willing to perform his part of the contract. The averment that the cause of action had arisen at Delhi was also denied. On the merits, it was pleaded that 200 bags of moong at the rate of Rs. 23. 00 per bag bilucul were purchased by the defendant on 28-9-1954 and 40 bags of moong of extra superior quality at the rate of Rs 28/8/ on the insturctions of Ram Lal son of Chiranji Lal, Proprietor of the plaintiff-firm were also purchased by the defendant. Goods were despatched to Delhi and the R/r with the bill and hundi sent through the Central Bank of India. Jalna. the said Ram Lal being informed of the same and requested to pay the amount in the Bank against the hundi and the bill and get the R/r for taking delivery from the railway. In the additional pleas, it was averred that money was due to the defendant on the basis of the transaction in question for which the suit had been filed by the defendant firm against Ram Lal of the plaintiff firm. The breach, according to the defendant, was committed by the plaintiff in falling to take delivery of the goods sent. The defendant had offered best quality of moong to the plaintiff but the latter did not obtain the R/r from the Bank. The breach, according to the defendant, was committed by the plaintiff in falling to take delivery of the goods sent. The defendant had offered best quality of moong to the plaintiff but the latter did not obtain the R/r from the Bank. ( 4 ) ON the pleading of the parties, about seven Issues were framed but the only issue which has been agitated in this Court on second appeal relates to the question as to which party has committed the breach of the contract. The trial Court came to the conclusion that the defendant had agreed to sell the best quality of moong to the plaintiff and had indeed offered the best quality as agreed. It further gave a finding that the plaintiff had the financial capacity to perform his part of the contract, but he was not mentally disposed to do so. with the result that the plaintiff was held to he not ready and willing to perform his part of the contract On the question of the quantum of damages also. It was found that there was no sufficient evidence on the basis of which anv conclusion favourable to the plaintiff could have been arrived at. As observed earlier, the suit was dismissed with costs. ( 5 ) ON appeal, the learned Additional District Judge in a well-reasoned judgment after considering the evidence referred to came to the conclusion that the defendant had sent to the plaintiff a sample which was received by the plaintiff firm. Fallure on the part of the plaintiff to produce that sample In Court went to show that the goods sent by the defendant answered the description of which they had sent the sample earlier On that view, therefore, even if the moong sent was not of the best qualify, the plaintiff had no cause of action. After referring to section 16 (2) of the Indian Sale of Goods Act, 1930, the lower Appellate Court observed that the refusal of the plaintiff to receive the consignment of goods after receiving the sample and falling to demur that the mnong was not of the best quality as desired by them amounted to a breach of contract on their part. Agreeing with the Court below, therefore, that the goods sent by the defendant were of the best quality as contracted and that the plaintiff was guilty of breach of contract in refusing to take delivery thereof the learned Additional District Judge dismissed the appeal with costs. ( 6 ) ON second appeal in this Court, Shri D. D. Chawla learned counsel for the appellant has in his usual forceful eloquent manner argued that the plaintiff had ordered best quality of moong and that this expression is a term of art. The Courts below should have enquired into the question whether the moong supplied was of "best quality" as known in the market at Jalna. Since the moong supplied was of a lower price, this could not be treated to be the best. According to the learned counsel, the Court of first instance did hold thai the contract was for the purchase of best quality, but the learned Additional District Judge sought to make out a new case in as much as the trend of his judgment shows that the sate was by sample. Shri Chawla has attempted to take me through the evidence on the basis of his submission that there is no evidence on the. record justifying the conclusion of the trial Court that best qualify was sent by the defendant I have not been able to persuade myself to hold that there is no evidence in support of the finding of the trial Court that the best quality of moong was sent by the defendant. After expressing dissatisfaction with the testimony of the plaintiff s witnesses, the trial Court proceeded to observe about P. W 7 and P W 8 that they had both stated that the moong had been inspected from three or four partly torn bags but in sample of the moong inspected was retained by the plaintiff. P. W 6, as noticed by the trial Court, had also admitted as a witness that theplaintiff had shown him a sample of the moong at his shop. These statements, coupled with the failure on the part of the plaintiff to complain to the defendant about non-receipt of any sample of the moong, taken along with the correspondence between the parties, led the trial Court to conclude that the defendant did offer the best quality of moong to the plaintiff. These statements, coupled with the failure on the part of the plaintiff to complain to the defendant about non-receipt of any sample of the moong, taken along with the correspondence between the parties, led the trial Court to conclude that the defendant did offer the best quality of moong to the plaintiff. THIS, in my view, is a finding which is based on evidence and it is futile on the part of the learned counsel for the appellant to urge that the conclusion is based on no evidence. I am. therefore, unable to get over the bar created by section 100, Code of Civil Procedure and I am constrained to hold that I have no jurisdiction to go into the evidence myself. ( 7 ) IT has, however, been strongly argued by Shri Chawla that the learned Additional District Judge has tried to make a new case as if if is a rase of sale by sample and not by description, here again I am unable to sustain the submission. The expression "best quality" has not been shown to connote a recognised description of moong in the commercial circles. Indeed the record is bare of any material on which one can come to a conclusion that the expression "best quality" connotes any specified kind or class of moong. As a matter of fact, in Exhibit D. 4, which is the account of Chiranji Lal Ram Lal, it has been noted that 200 bags of moong "achhi quality" had been purchase. It is added that it was bilti cut 23 weighing bardana 100 seers. The telegram Exhibit P. 2 conveying the purchase of 200 bags. of course, uses the English translation of "achhi quality" as best quality". It is added that it was bilti cut 23 weighing bardana 100 seers. The telegram Exhibit P. 2 conveying the purchase of 200 bags. of course, uses the English translation of "achhi quality" as best quality". but this material scarcely supports the submission that the expression "best quality" is a well-known description of moong the purchase of which is the subject-matter of the present controversy, ON this view of the matter, it is difficult to find fault with the reasoning of the learned Additional District Judge, when he takes into account the fact that a sample was sent by the defendant to the plaintiff which the plaintiff has withheld from the Court and failure on the part of the plaintiff to protest at the proper time about the non-receipt of the sample said to have been sent to him, for arriving at his conclusion that breach of the contract was committed by the plaintiff The submission pressed by Shri Chawla that the case is governed by section 15, Sale of Goods Act and that it should go back to the Court below for considering the question of damages, is in view of the foregoing discussion futile. The criticism levelled against the judgment of the learned Additional District Judge on the basis of the submission that section 16 (2) of the Sale of Goods Act does not apply is also unsustainable. The ground urged on behalf of the appellant is thai section 16 (2) was not pleaded but this criticism, in my view, is wholly misconceived because on the pleadings and the evidence it is quite clear that sample was sent by the defendant and no objection was raised on receipt thereof about the quality of the sample sent or of the goods on the ground that they did not conform to the sample. Indeed the parties quite clearly understood the question in controversy and the respective cases they were expected to meet, S. 16 (2) does seem in my view to cover the present case. ( 8 ) AS a last resort, Shri Chawla submits that another litigation is pending between the parties and the present decision may operate to the prejudice of the appellant. I am afraid I am unable to appreciate how this consideration can override the operation of section 100, Civil Procedure Code, in the present case. ( 8 ) AS a last resort, Shri Chawla submits that another litigation is pending between the parties and the present decision may operate to the prejudice of the appellant. I am afraid I am unable to appreciate how this consideration can override the operation of section 100, Civil Procedure Code, in the present case. If the conclusion of fact is binding on this Court then the possible effect of the decision of this Court is scarcely relevant for excluding the applicability of section 100 and It cannot militate against its binding effect. ( 9 ) FOR the foregoing reasons, It appears to me that the case is concluded by a finding of fact which is supported by both documentary and oral testimony This appeal accordingly fails and is dismissed, but keeping In view the circumstances of the case, particularly the fact that another suit is also pending between She parties arising out of this very transaction, I leave the parties to bear their own costs in this Court