RAM SARAN DAS RAJA RAM v. LALA RAM CHANDER — 1967 DIGILAW 89 (DEL)

( 1 ) THIS is a defendants appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Delhi, whereby the plaintiff s suit for recovery of Rs. 6,434-10-9 was decreed with costs against the defendants with interest at 4 per cent per annum from the date of the suit till the date of realization. ( 2 ) THE plaintiff Ram Chander, proprietor of Jindal Oil Mills, Delhi-Shahdra, pleaded in the plaint that on 3-5-19s4, the defendants Messrs. Ram Saran Das Raja Ram, whose partner Raja Ram was also impleaded as defendant No. 2, entered into a contract of purchase of one tank wagon (about 500 maunds) of mustard oil at Rs. 61 per maund F. 0. R. Deihi-Shahdra (Bilti cut) with a condition of V2 per cent leakage. The tank was to be despatched to Kirkand, the place of business of the defendants. The plaintiff despatched one tank wagon weighing 505 maunds of mustard oil in accordance with this contract as per R/r No. 149067 from Delhi Shahdra to Kirkend. The R/r was |ent to die defendants through the Punjab National Bank Ltd. , Deihi-Shahdra and the plaintiff drew -hundi tor Rs. 30,874/s/- on the defendants on account of price of the oil despatched. The defendants, repudiating the contract, wrongfully refused to honour the hundi and to receive the R/r from the Bank and to take delivery of the oil. The plaintiff had in consequence to arrange to take delivery of the oil at Kirkend and disposed it of there at the cost, risk and responsibility of the defendants after giving them due notice. The plaintiff could only realise Rupees 25,186/13/9 by the resale of the said oil after adjusting the R/r, Bank charges, sale commission and other expenses incidental to the sale of the said oil. Thus there was a loss of Rupees 5,687/7/3. The plaintiff had also to pay Bank charges tor the dishonoured hundi and to send his man to Kirkend to arrange tor taking delivery of the said oil and to supervise its sale which entailed expenses amounting to Rs. 720/ 11/6. Adding to it a sum of Rs. 26/8/- on account of interest with effect from 1-7-1954 up to the date of the suit at 9 per cent per annum, according to the market rate, the total amount claimed was calculated to Rs. 6,434/10/9 asobserved earlier. 720/ 11/6. Adding to it a sum of Rs. 26/8/- on account of interest with effect from 1-7-1954 up to the date of the suit at 9 per cent per annum, according to the market rate, the total amount claimed was calculated to Rs. 6,434/10/9 asobserved earlier. ( 3 ) THE defendants resisted the suit on various pleas, including a challenge to the jurisdiction of the Courts at Delhi. The main plea, however, was that there was no completed contract between the parties hi respect of the sale and purchase of the oil in question. The additional pleas contained what the defendants described to be the correct position. The defendant-firm, according to these pleas, telephoned to one Gobind Ram Singhania at Purutia and made an offer to purchase one tank mustard oil at Rs. 61 per maund f. o. r. Kirkend, the defendants being liable for leakage up to 2 per cent, leakage above this percentage to he the risk of the seller. The goods, according to the defendants instructions, were to be sent after 15-5-1954. Gobind Ram Singhania acknowledged this proposal and informed the defendants that their proposal had been passed on to Jindal Oil Mills. Neither Gobind Ram Singhania nor the Jindal Oil Mills sent any acceptance of the proposal. THE defendants wrote on 5-5-1954, repeating their earlier offer made through Gobind Ram Singhania. The plaintiff did not ackowledge the defendants letter nor did he communi- cate to them the acceptance of the offer. There being no acceptance received from the plaintiff, the defendants considered that their proposal stood revoked. On 18-5-1954, the defendants received a telegram from Jindal Oil Mills informing of despatch of tank 74730, but this message made no sense. The defendants, however, promptly wired back to the plaintiff repudiating their obligation. After exchanging two more telegrams, the defendants wired on 20 5-1984 to the following effect: "received no valid contract. Tank despatched violating condition not liable to accept . Without admitting, but assuming the existence of a contract, according to the defendants plea, the oil had to be despatched on 1s-5-1954 and this was an essential condition. Non-compliance with this condition was violative of the essential terms of the contract. The plaintiff had not informed the defendants about the despatch ot the wagon till after 18-5-1954. Besides the defendants had agreed to place the order at Rs. Non-compliance with this condition was violative of the essential terms of the contract. The plaintiff had not informed the defendants about the despatch ot the wagon till after 18-5-1954. Besides the defendants had agreed to place the order at Rs. 61 per maund F. O. R. Kirkend and not F. O. R, Delhi-Shahdra as billed by the plaintiff. On the basis of these pleas, the defendants denied their liability. It was added that the defendants having repudiated the contract on 20-5-1954,. "it was the duty of the plaintiff to dispose of the goods on that day. The plaintiff on the other hand allowed the goods to remain unsold for about a couple of months with a view to take advantage of the rise in the market. Again the goods were not sold at Kirkend but at Jharia. The plaintiff did not dispose of the oil as it was contained in a tank wagon, and is reported to have taken delivery of the oil by inverting them into tins. The defendants do not even admit that the oil which the plaintiff is supposed to have sold at Jharia is the one of which he took delivery at Kirkeud. The defendants did not receive any notice from the plaintiff to the effect that he was selling oil at Jharia. All along the plaintiff treated the goods as his own. " I have considered it propel to reproduce the exact words of this part of the additional pleas. ( 4 ) JURISDICTION of the Court below was upheld by an interlocutory order on the preliminary issue which was affirmed by the High Court on revision. The following issues on the merits were then settled: 1. Whether the plaintiff is sole proprietor of Jindal Oil Mills? 2. Whether there was no completed contract between the parties? 3. What were the terms of the contract? 4. Whether the plaintiff performed his part of the contract? 5. Whether the plaintiff actually sold the goods in defendants account and after notice? 6. Whether the plaintiff could sell the goods in the account of defendants? 7. To what damages, if any, is the plain tiff entitled? 8. Relief. All the issues having been decided in favour of the plaintiff, this suit was decreed for Rs. 6,434-10-9 as observed earlier. Whether the plaintiff actually sold the goods in defendants account and after notice? 6. Whether the plaintiff could sell the goods in the account of defendants? 7. To what damages, if any, is the plain tiff entitled? 8. Relief. All the issues having been decided in favour of the plaintiff, this suit was decreed for Rs. 6,434-10-9 as observed earlier. ( 5 ) ON appeal, Shri H. R. Sawhney has, to begin with, urged thai there was no completed contract between the parties. In support of this submission, he has drawn our attention to Exhibit a dated 3-5-1954, which is a letter from Gobind Ram Singhania signed by Hari Parsad Singhania on his behalf and addressed to Ram Saran Dass Raja Ram. It reads as under: "received no letter from you. So please write one to me. Today I had a talk with you on phone. In accordance with yourinstructions one tank of mustard oil with the condition of leakage to the extent of 1/2 per cent and further condition that it will be despatched after the 15th day. 1954, at the rate of Rs. 61 per maimd (rupees sixty one only) biti cut has been purchased from the Jindal Oil Mills. Delhi, Shahdra. So please keep this in view. In this connection, a telegram has been sent to you today which you might have received. It will he learned on receipt of your letter. Please reply to this letter, please write us any service from your side",there is a note at the bottom in the following words; " PLEASE do contact us for purchasing or selling any of the aforesaid goods". This note apparently refers to the various articles mentioned on the margin for which Gobind Ram Singhania seems to be acting as selling agent. Exhibit P-9 is a telegram of the same date despatched at 9-40 A. M. , conveying the following message; "reference phonic offer sold one tank mustard oil sixty-one bilti cut leakage half pet cent confirm Ramsaran Dass Rajadeonm Kirkend. Singhania". -. The argument of the learned counsel for the appellants is principally based on these two documents, and, according to him, the confirmation sought in the telegram conclusively shows that it was an offer which had to be confirmed before it could in law become a contract. Singhania". -. The argument of the learned counsel for the appellants is principally based on these two documents, and, according to him, the confirmation sought in the telegram conclusively shows that it was an offer which had to be confirmed before it could in law become a contract. The counsel has also drawn our attention to Exhibit Public witness 8/1 which is translation of an entry in the plaintiff s bahi dated 16-5-1954. This entry is to the following effect: "sold one tank of oil weighing 500 maunds at the rate of Rs. 61 per maund F. O. R. Shahdara, to Ram Saran Dass Raja Ram of Kirkeiid through Gobind Ram Singhania. Telegram received on the 3rd May, 1954". . . Lower down, there is a note to the following effect:- "he refused to receive the goods. The good- were sold to Kidar Nath at Jharia". Shri Sawhney has in this connection also read out the statement in cross-examination of Ram Chander plaintiff where he has stated: "exhibit P-9 is the telegram, the reference of which is given in the entry of the sauda bahi, copy of which is Exhibit P. W. 8/1. It is wrong that the contract was based only on the telegram, P-9 and that there was no talk regarding the terms of the contract on phone. The talk on telephone was received on night of 3rd May, 1954. The telephone message was received on the night between 2nd May, 1954 and 3rd May, 1954 after 12 O clock in the midnight I cannot give any specific reason why there is no mention of telephone in the entries in sauda bahi". THE learned counsel has in addition invited our attention to Exhibit P-l, a post-card dated 5-5-1954, written by Messrs. Ram Saran Dass Raja Rani of Kirkend Bazar to Messrs Jindal Oil Mills. This letter, so far as relevant, reads as under: "it is alright that you have sold one tank i. e. 500 maunds of oil at the rate of Rs. 61 (per rnaund) through Bhai Gobind Ram Singania. The same be got despatched after 15th. The tank be despatched tor Kirkend Station. The statement of the defendant Moti Ham Aggarwal appearing as witness No. 3 examined on commission has also been relied upon by the appellants counsel. 61 (per rnaund) through Bhai Gobind Ram Singania. The same be got despatched after 15th. The tank be despatched tor Kirkend Station. The statement of the defendant Moti Ham Aggarwal appearing as witness No. 3 examined on commission has also been relied upon by the appellants counsel. He has stated that the talk between Munshi Ram and Gobind Rana Singhania took place in his presence on 3-3-1954 at 7 A. M. It appears that two documents bear the exhibit mark A , one which is a letter dated 3-5-1954, to which reference has already been made, and the other is a bill for the telephone trunk call dated 9-7-1954 for the month of May, 1954 sent by the Indian Posts and Telegraphs Department to Messrs. Ram Saran Dass Jaja Ram. Item No. 2 is dated 3-5- 1954 and the telephone number called is "pel 58" at 7 A. M. From this material, Shri Sawhney wants us to hold that there was no completed contract and the offer made by the plaintiff had elapsed. We are unable to sustain this submission. The telegram Exhibit P-9 and the letter Exhibit a dated 3-5-1954 appear to me to completely negative the appellants suggestion. Exhibit P-l dated 5-5-1954 from the defendants Ram Saran Dass Raja Ram to Jindal Oil Mills seems almost to conclude the matter beyond the possibility of any controversy. There was quite clearly a completed contract, and any attempt on the part of the defendants to contend to the contrary seems to me to be an argument of despair. The appellants learned counsel has placed considerable reliance on Exhibit P. 8/1, translation of an entry in sauda bahi as printed in the paper- book I have looked at the original document in Urdu from the record. It recites the sale of 500 maunds at Rs. 61 per maund F. O. R. Shahdara through Gobind Ram Singhania and also mentions the receipt of a telegram on 3-5- 1954. In the margin, the date is mentioned as 16-5-1954. At the bottom to the left, is the note that delivery was declined and the goods sold to Kidar Nath at Jharia. According to Ram Chander plaintiff, appearing as P. W. 8, in answer to a question in cross-examintion, this entry was made after the receipt of the telephone and of the telegram. At the bottom to the left, is the note that delivery was declined and the goods sold to Kidar Nath at Jharia. According to Ram Chander plaintiff, appearing as P. W. 8, in answer to a question in cross-examintion, this entry was made after the receipt of the telephone and of the telegram. No further question was apparently asked from the plaintiff in connection with this document. We are, therefore, unable to hold that this document negatives the plaintiff s case and supports the defendants theory that there was no completed contract and the whole thing has been concocted or made up by the plaintiff with the object of claiming damages on the basis of a breach of their obligations on the part of the defendants. Reference has also been made by Shri Sawhney to the statement of the plaintiff recorded on 23-1-1956 on the preliminary issue relating to the jurisdiction ot the Court, wherein he stated that the consignee of the R/r in dispute was self which was not endorsed in the name ot the defendants and that up to Kirkend, the owner of the oil was the Punjab National Bank Without holding, but assuming that this part of the statement can be taken into account tor the purposes of determining issue No 2, I do not think the statement can be construed to establish that there was no completed contract between the parties It is signficant that when the plaintiff was examined is P W 8 on the issues on the merits, no point was sought to be made on the basis of his earlier statement dated 23-1-1956 and he was not even questioned with reference to his previous statement BE that as it may, on a consideration of the evidence, both oral and documentary we have not the least hesitation in holding that there was a completed contract between the parties and that the Court below was quite right in so holding. This brings us to the challenge on the question of the despatch of goods. This is the subject-matter of issue No. 4. This brings us to the challenge on the question of the despatch of goods. This is the subject-matter of issue No. 4. The defendants plea is that the plaintiff had to despatch the goods after 15-5-1954, where as the goods were despatched on 16-5-1954 which was violative of the terms of the contract, P. W- 2 Abbey Ram, an employee of Jindal Oil Mills in 1954, has sworn that the tank in dispute was loaded on 15-5-1964 and the same left Shahdara on 16-5-1954. In cross-examination, all that has been elicited is that he was not present at the railway station when the tank in dispute actually left and that the date of its despatch is not entered in the records. Shri Gugan Ram P. W. 3, also an employee of M/s. Jindal Oil Mills as a Munim in 1954, has corroborated Abhey Ram by swearing that the tank was loaded on 15-5-1954 and the same left Delhi-Shahdara station on 16-5-1954. His cross-examination has also not brought out any reason tor disbelieving his statement to this effect. Shri Sawhney has referred us to the statement of Sadhu Ram P. W. I. who was posted as a Goods Clerk at Delhi-Shahdara Station in May, 1954, wherein he has stated that there was no record with him which could support his statement that tank No. 74730 had left Delhi Shahdara in the early hours on 16-5- 1954. I may point out that in his examination-in- chief, he has stated that the tank in question had been made over to M/s. Jindal Oil Mills on 14-5-1954 at 14 hours for loading and the loading was completed on 15-5-1954 at 7 hours. The said tank was despatched on 16-5-1954 early in the morning. The plaintiff, appearing as P. W. 8, has also deposed that the tank was loaded on 15-5-1954 and it left Delhi-Shahdara at about 1 A. M. on 16-5-1954. It is true that after referring to the defendants request to despatch the goods after 15-5-1954, the plaintiff has also stated that the Railway Authorities had been requested by him to supply a tank and the tank would have to be loaded the day it was supplied. It is true that after referring to the defendants request to despatch the goods after 15-5-1954, the plaintiff has also stated that the Railway Authorities had been requested by him to supply a tank and the tank would have to be loaded the day it was supplied. But whether or not he is right in denying the despatch of the goods after 15-5-1954, to be a term of the contract, the fact remains that according to the evidence on the record, the tank left on 16-5-1954 and not earlier. The defendants have not shown by any reliable evidence that the goods had actually been despatched earlier. Some attempt has been made at the bar to suggest that there is a likelihood of the tank having left Delhi- Shahdara on the 15th and not on the morning of the 16th of May. THE evidence, in our opinion, quite clearly negatives this suggestion, though it is questionable whether even if the goods had left Delhi- Shahdara sometime late on 15-5-1954, it could be said to have amounted to a breach of an essential term of the contract, thereby entitling the defendants to avoid the contract. The other part of the decision on issue No 4 that the goods were despatched "bilti-cut" F. O. R. Delhi-Shahdara has not been seriously challenged before us on behalf of the appellants, and, in our opinion, rightly so. ( 6 ) THIS brings us to issues Nos. 5 and 6 on which Shri Sawhney has very eloquently addressed us in support of the appeal. The challenge on this part of the case has broadly speaking centred round three points: (A) Whether the property in question passed to the defendant-appellants? (B) Whether the plaintiff could resell the goods? and (C) Whether the resale was effected after notice to the defendant-appellants?. The challenge on this part of the case has broadly speaking centred round three points: (A) Whether the property in question passed to the defendant-appellants? (B) Whether the plaintiff could resell the goods? and (C) Whether the resale was effected after notice to the defendant-appellants?. In this connection, stress has been laid on the following submissions:- (i) The R/r was obtained in the plaintiffs own name (ii) The R/r was endoresed in favour of the Punjab National Bank against payment; (iii) The amount of the hundi was obtained from the Bank and the R/r was given as security, with the the result that the property should be considered to have passed to the Bank; (iv) The plaintiff had appointed his own sales agent for reselling the goods without reference to the defendant-appellants and the goods were actually so sold; (v) The goods were neither ascertained nor appropriated; and (vi) The plaintiff had reserved the right of disposal till payment was made by the defendant-appellants. The counsel has in the course of his arguments referred us to Sections 54 and 60 of the Sale of Goods Act (hereafter called the Act) and has relied on some decided cases in support of his challenge to the impugned judgment and decree. I may first deal with the statutory provisions. Section 54 of the Act provides that sales are not generally rescinded by lien or stoppage in transit. Where, however, the unpaid seller, who has exercised his right of lien or stoppage in transit, gives notice to the buyer of his intention to sell, the ,unpaid seller may, if the buyer does not within a reasonable time pay or tender the price, resell the goods within a reasonable time and recovery from the original buyer damages for any loss occasioned by his breach of contract, but the buyer is not entitled to any profit which may occur on the re-sale. In case of re-sale, pursuant to the exercise of the right of lien or stoppage in transit, the buyer acquires a good title thereto as against the original buyer notwithstanding want of notice of the resale to the latter IN case of a contract which expressly reserves a right of re-sale on buyer s default, when the goods are re-sold on such default, the original contract is thereby rescinded, but this does not prejudice any claim tor damages which the seller may have under the law. Section 60 of the Act, dealing with repudiation of contract before due date provides that when either party to a contract. of. . sale repudiates the same before the date of delivery, the other party may either treat the contract as subsisting and wait till the date of delivery or he may treat the contract as rescinded and sue for damages for the breach. Here, reference may also be made to Section 46 of the Act which deals with the subject of unpaid seller s rights. According to this section, subject to the provisions of the Act and of any law for the time being in force, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law: (A) a lien on the goods, for the price while he is in possession; (B) in case of insolvency of the buyer, right of stopping the goods in transit after he has parted with possession; and (C) a right of re-sale as limited by the Act. In cases where the property in goods has not passed to the buyer, the unpaid seller has, in addition to other remedies, right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transit where the property has passed to the buyer. We now turn to the decided cases to which reference has been made at the bar. Before noticing the other cases cited on behalf of the appellants, reference may appropriately be made to a Bench decision of the Punjab High Court in Firm Paharia Mal Ram Sahai v. Birdhi Chand Jain and Sons, AIR 1956 Pandh 217. We now turn to the decided cases to which reference has been made at the bar. Before noticing the other cases cited on behalf of the appellants, reference may appropriately be made to a Bench decision of the Punjab High Court in Firm Paharia Mal Ram Sahai v. Birdhi Chand Jain and Sons, AIR 1956 Pandh 217. It is laid down therein that the seller s lien depends on actual possession and not on title and it can be exercised only when the property in the goods has passed to the buyer. In such a case, the property in the goods having passed to the buyer, the seller, by taking the receipt in his own favour, merely exercises his right of lien of the goods. This observation is stated to have been based on a decision of the Privy Council In re: Parchim, 1918 AC 157 = (AIR 1918 PC 344 ). On behalf of the appellants, after waking an attempt to distinguish on tacts the decision of the Punjab High Court, its correctness has been challenged on the authority of two recent decisions of the Supreme Court (i) in Badriprasad v. State of Madhya Pradesh, AIR 1966 SC 58 and (ii) in M/s. Carona Sahu Co. , Private Ltd. v. State of Maharashtra, AIR 1966 SC 1153 . The decision in the case of M/s. Carona Sahu Co. , AIR 1966 SC 1153 , lays down the settled law in these words::. . . IN the case of contract for sale of unascertained goods the property does not pass to the purchaser unless there is unconditional appropriation of the goods in a deliverable state to the contract. In the case of such a contract. delivery of the goods by the vendor to the common camel is an appropriation sufficient to pass the property. But there is a difference in the legal effect of delivering goods to a common carrier on the one hand and shipment on board a ship under a bill of lading on the other hand. Where goods are delivered on board of a vessel to be carried- and a bill of lading is taken, the delivery by seller is not delivery to the buyer, but to the captain as bailee tor delivery to the person indicated by the bill of lading. The seller, may, therefore, take the bill of lading to his own order. Where goods are delivered on board of a vessel to be carried- and a bill of lading is taken, the delivery by seller is not delivery to the buyer, but to the captain as bailee tor delivery to the person indicated by the bill of lading. The seller, may, therefore, take the bill of lading to his own order. The effect of this transaction is to control the possession of the captain and make the captain accountable to deliver the goods to the seller as the holder of the bill of lading. The bill of lading is the symbol of property, and by so taking the bill ot tailing the seller keeps to himself the right of dealing with property shipped and also the right ot demanding possession from the captain, and this is consistent even with a special term that the goods are shipped on account of and at the risk of the buyer. After quoting from Gabarron v. Kreett, (1875) 10 Ex. 274, and reproducing Section 25 of the English Sale of Goods Act, that decision proceeds to state: "the endorsement in the invoice merely indicated that the insurance charges were to be paid by the appellant and the clause has no bearing on the question of the passing ot title . We do not think the Supreme Court decision has overruled or cast any doubt on the correctness of the law as laid down by the Punjab High Court in the case of F. Paharia Mal Ram Sahai, AIR 1956 Pandh 217. A Single Bench decision of the Lahore High Court by Addision, J. , in Sundar Singh Jit Singh v. Gulab Singh Kalyan Singh, AIR 1927 Lah 269, given prior to the enactment of the Act has approved the view that where goods are sent through Railway, the railway receipt being addressed to self to be delivered through a Bank to the purchaser only on the receipt of the price for the goods, the property in the goods does not pass to the purchaser till the price is paid. For this very view, reliance has also been placed on a Single Bench decision of the Bombay. High Court, on the original side, in Ford Automobiles (India) Ltd. v. Delhi Motor and Engineering Co. . AIR 1923 Born 125. For this very view, reliance has also been placed on a Single Bench decision of the Bombay. High Court, on the original side, in Ford Automobiles (India) Ltd. v. Delhi Motor and Engineering Co. . AIR 1923 Born 125. A decision by Umamaheswaram, J. , in Majety Balakrishna Rao v. Mooke Devassy Ouseph and Sons, AIR 1959 Andh Pra 30, also lays down that where the seller delivers his goods to the railway company, obtains the railway receipt in respect of the goods in his own name, endorses the railway receipt in favour of the Bank and delivers a hundi with a direction that the railway receipt should be delivered to the buyer only when the hundi is honoured and the price of the goods is paid, the title in the goods does not pass to the buyer. It is added that there is no distinction in principle in regard to reservation of title in respect of a bill of lading and a railway receipt and the Seller in such a case is not entitled to resell the goods under the terms of Section 54 (2) of the Act. In the judgment in this case, reference has been made to a Supreme Court decision in Commissioner of Income-tax, Madras v. Mysore Chromite Ltd. , AIR 1955 SC 98 . Our attention has also been drawn to a recent Bench decision of this Court in Messrs Bhagwan Dass Brothers v. Messrs. Dina Nath Daulat Ram. R. F. A. No. 108-D of 1959, D/-21-3-1967 (Punj ). It has been observed in this decision: IN the case of sale of goods, not being specific or ascertained goods, if a buyer commits a breach in taking delivery of the goods, the seller has normally no right to resell the goods in the buyer s account. Such a right of re-sale would. be there if there be an express term ot the contract to that effect as was the case in Moll Schutte and Co v. Lachmichand, (1898) ILR 25 Cal 505 (FB), Such a right is also provided in some special cases by Section 54 of the Sale of Goods Act. Those special cases relate to goods of perishable nature or where the unpaid seller exercises his right of lien or stoppage in transit. Those special cases relate to goods of perishable nature or where the unpaid seller exercises his right of lien or stoppage in transit. In case where, however, there is no express right ot re-sale in the contract and the case does not fall within the ambit of Section 54 of the Sale of Goods Act, a seller cannot be deemed to be vested with a right of re-sale and he cannot base a claim on re-sale as such. His only remedy is to sue the buyer for damages tor breach of contract and the damages would represent the loss suffered by the seller because of the difference between the contract price and the market value of the goods on the date of the, breach. It, however, in such a case the seller resells the goods and the, re-sale is a genuine transaction, the price obtained as a result of re-sale can be taken into account as indicative of the market value of the goods on the date of the breach. The price realised as a result of the re-sale would thus become relevant for determining the quantum of damages". Reference has also been made to a recent Full Bench decision of this Court in Bhajan Singh Hardit Singh and Co. v. Karson Agency (India) L. P. A. No. 35-D of 1962, D/-31-3-1967 - (AIR 1967 Delhi 101) (FB ). It appears to us to be necessary to find out the precise controversy before the Full Bench and the point which it was called upon to, and actually did, decide. A suit had been instituted by M/s. Bhajan Singh Hardit Singh against Karson Agency (India) and B. L. Kaura for compensation for breach of contact. The defendants had agreed to purchase from the plaintiffs 500 yards of worsted woollen cloth, Rs. 1,000 having been paid in advance. The plaintiffs sent a bill for 500 yards of the specified worsted cloth on 25-7-1951 stating that theywould deliver the worsted cloth on payment of the balance of Rs. 10. 625 after allowing tor the sum paid in advance. The defendants did not take delivery and in August, 1951, the plaintiffs sent a notice to the defendants stating that unless they paid the price and look delivery within tour days, the cloth would be re-sold at the defendants risk. No delivery having been taken, the cloth was sold in smaller quantities on various dates. The defendants did not take delivery and in August, 1951, the plaintiffs sent a notice to the defendants stating that unless they paid the price and look delivery within tour days, the cloth would be re-sold at the defendants risk. No delivery having been taken, the cloth was sold in smaller quantities on various dates. THE plaintiffs claimed a decree for Rupees 3,392/9/6 on account of the loss suffered on the defendants breach of the contract. The only point argued on second appeal by the defendants was the question of limitation, the contention being that the suit was governed by Art 115. Indian Limitation Act. The Courts be- low had held that Art 120 applied to the case. The Single Bench took the view that the cause of action had accrued when the contract was broken, that is to say, when the defendants failed or refused to take delivery of the goods. The suit was on this view held barred by time under Article 115 ot the Limitation Act. On Letters Patent Appeal by the plaintiffs, reliance was placed on Section 24 of the Limitation Act, according to which, in the case of a suit for compensation for an act which does not give rise to a cause of action, unless some specific injury actually results therefrom, period of limitation, is to be reckoned from the time when the injury results. According to the submission, the breach of contract did not give rise to any cause of action without damages resulting therefrom and it was only when the plaintiff discovered, after reselling the goods, that he was still short of the price the defendants had agreed to pay for the goods, that the right to sue accrued to him. IT appeared to the Division Bench to be proper that the question of limitation be authoritatively decided by a larger Bench, with the result that the appeal, which raised only the question of limitation on the facts found by the Court of first appeal, was referred to a Full Bench for decision. The Full Bench noticed that the learned Additional District Judge, in agreement with the Subordinate Judge trying the suit, had observed that the unpaid seller had two rights, viz. The Full Bench noticed that the learned Additional District Judge, in agreement with the Subordinate Judge trying the suit, had observed that the unpaid seller had two rights, viz. , a right of re-sale under Section 54 (2) of the Act and an independent right under Section 55 of the Act to sue for the price of the goods and that it was open to him not to sell the goods, but to sue for the price, leaving it to the purchaser to take delivery of the goods lying with the seller at his convenience. In that case, however, the plaintiff had availed himself of the remedy provided under Section 54 (2) and resold the goods, and sued the defendants for making good the loss sustained by the plaintiff on account of breach of contract by the opposite party. In these circumstances, the question which was canvassed before the Full Bench was in regard to the right of resale under Sec. 54 (2) of the Act. After reproducing Section 46 of the Act, it was observed in the course of the judgment: "thus, it is Section 46 (1) (c) that gives a right of resale to the unpaid seller in certain circumstances prescribed in the Act. We are concerned in the present case only with the said right of resale given to the unpaid seller, but not with the right to a lien or the right to stoppage of goods in transit given to him under Section 46 (1) (a) and (b ). "section 54 of the Act was then reproduced and reliance on behalf of the appellant on Section 54 (2) in support of the right to resell the goods was repelled with the finding that the goods in that case could not be regarded as perishable goods within the meaning of Section 54 (2 ). The right to resell under Section 54 (2) was on this basis negatived. The right of the seller to exercise his lien within the meaning of Section 54 (2) was considered to be not helpful because the right to resell the goods conferred on the unpaid seller was exercisable only when the property had passed to the buyer. The right to resell under Section 54 (2) was on this basis negatived. The right of the seller to exercise his lien within the meaning of Section 54 (2) was considered to be not helpful because the right to resell the goods conferred on the unpaid seller was exercisable only when the property had passed to the buyer. The Full Bench then proceeded to consider this question and observed that as the property in the goods did not pass to the buyer, there could be no question of the seller having any right to resell the goods by virtue of Section 46 (1) and Section 54 (2) of the Act. This decision does seem to us to some extent to come into conflict with the Bench decision of the Punjab High Court in F. Paharia Mal Ram Sahal s case, AIR 1956 Pandh 217. It also distinguished another Bench decision of the Punjab High Court, Circuit Bench, at Delhi in Messrs. Eastern Traders (P.) Ltd. v. Punjab National Bank, Ltd. , 1966 (2) Delhi LT 1= (AIR 1966 Punj 803) (Dulat and Shamsher Bahadur JJ. ). In that case, the Bench had held that the period of limitation of three years for compensation for the breach of any contract is to be reckoned trom the date when the contract is broken and not when the breach is known to the plaintiff and that breach in the abstract would not be. sufficient to provide a foothold for the plaintiff to file a suit for compensation. Time, according to this decision, must run trom the date when the injury is actually sustained. These observations were held to be obiter. The two uureported decisions of this Court, one of them being by a Full Bench, are clearly binding on us and to the extent to which they, or either of them happen to be inconsistent with the decisions of the Punjab High Court, the former must be preferred. ( 7 ) IN the case in hand, assuming that the title in the goods did not pass to the seller, the fact remains that the defendant had committed breach of contract in not taking delivery of the goods. In accordance with the view taken by the Division Bench of this Court in the case of Messrs. ( 7 ) IN the case in hand, assuming that the title in the goods did not pass to the seller, the fact remains that the defendant had committed breach of contract in not taking delivery of the goods. In accordance with the view taken by the Division Bench of this Court in the case of Messrs. Bhagwan Dass Brothers, R. F. A. No. 108-D of 1959, D/-21-3-1967 (Punj.), the plaintiff as seller would be entitled to damages for breach of contract and such damages can be determined on the basis ot the difference between the contract price and the market rate of the goods at the time of the breach. If the resale of the goods by the selleris a genuine transaction, then the price obtained on such resale can fairly be considered to be indicative of the market price of the goods at the time of the breach. No reason has been advanced why this view of the Bench of this Court should be held inapplicable to the present case or should not be followed. ( 8 ) NOW, the resale by the plaintiff has been criticised on behalf of the appellants on the ground that it was made long after the breach of the contract and that the goods were sold not in one lot but in instalments in smaller quantities. It is pointed out that the sale had been repudiated on 18-5-1954 and the resale was effected from 4-6-1954 to 20-6-1954. This, according to the submission, is contrary to law and in any event, the resale does not represent the correct market rate at the time of the breach. The appellants submission is untenable on the evidence on the record. Abhey Ram, Public witness 2, has deposed that on the defendants refusal to take delivery of the goods, the witness and some others tried to persuade the defendants to take delivery of the goods in question but without success. An attempt was then made to sell the goods at Kirkend, but there was no purchaser because Kirkend is a small place. The goods were then attempted to be sold at Jharia which is at a distance of about 5 miles from Kirkend by 240 selling the bilti: but no one was willing to purchase the bilti. It was in these circumstances that the goods were sold at Jharia through Messrs. Kedar Nath Raghu Nath. The goods were then attempted to be sold at Jharia which is at a distance of about 5 miles from Kirkend by 240 selling the bilti: but no one was willing to purchase the bilti. It was in these circumstances that the goods were sold at Jharia through Messrs. Kedar Nath Raghu Nath. This firm took delivery of the goods on payment of Rs. 25,000 to the plaintiff by means of a hundi. This firm purchased fins and then took delivery of the tank and thus the said oil was sold at Jharia. Those tins were sold at the market rate. In cross- examination, it has further been elicited that the witness had gone to Jharia on the date of the defendants refusal to take delivery of the goods and, on enquiry about the market rate, discovered that there was a difference of Rs. 5 or Rs. 6 per maund in the price of the oil. The goods were sold at Jharia in lots in 15 or 20 days. The witness was present at the time of every sale. The plaintiff as Public witness 8 has also deposed that the goods in question could not be sold at Kirkend because the other dealers there were disinclined to displease the defendants. Messrs. Kidar Nath. Raghu Nath sold the oil at Jharia which is about 8 to 14 miles from Kirkend. In cross-examination, he has stated that Jharia is a big mandi of oil and the rate of oil was falling from 28-5-1954 to 24-6-1954, though the witness could not foresee its continuous fall. The evidence produced by the defendants that some dealers at Kirkend would have been willing to purchase the oil at higher rates is tar from impressive. The re-sale of the oil thus seems to us on the evidence on the record to be a genuine transaction at the prevailing market rate. ( 9 ) IN regard to the question of notice, it is clear that on 24-5-1954, as per Ex. D-l, the Jindal Oil Mills notified to Messrs. Ram Saran Dass Raja Ram, Kirkend, that arrangement should be. made to take delivery of the goods within 24 hours, in default of which, necessary steps would be taken to dispose of the goods at the market rate. D-l, the Jindal Oil Mills notified to Messrs. Ram Saran Dass Raja Ram, Kirkend, that arrangement should be. made to take delivery of the goods within 24 hours, in default of which, necessary steps would be taken to dispose of the goods at the market rate. It is noteworthy that in this notice, goods had been described to be the defendants goods to be sold at the risk and responsibility of the defendants. The appellants counsel has of course made reference to the statement of Abhey Ram, Public witness 2, wherein he has stated that he had not himself given any notice to the defendants and to that of Gugan Ram that he had not given any notice to the defendants that the goods would be sold at their risk, but in face of Exhibit D-I, these statements are of tittle help to the appellants. The only criticism in regard to Exhibit D-l which the appellants counsel could urge in his reply is that notice should have been given after goods had been taken delivery of by the plaintiff from the Railway. WE find no justification for this submission. In this connection, a passing reference has also been made to Exhibit P-8/1 which, according to the learned counsel, shows that the goods had actually been sold on 16-5-1954. This construction of Exhibit P-8/1 is wholly unjustified and misconceived. The last note, as seen by us from the original document, was apparently made on a much later date and the date 16-8-1954 on the margin is apparently meant to cover the first part or this document as printed at p 131 of the printed paper-book. The appellants challenge to the decision on issues Nos. 5 and 6 is thus also without merit and is repelled. ( 10 ) IN view of what has been stated above, the amount of damages decreed by the Court below must necessarily be affirmed, and indeed nothing has been said on this part of the case independently of the criticism levelled against the decision on the issues already discussed. ( 11 ) AS a result of the foregoing discussion, this appeal fails and is dismissed, but in the peculiar circumstances of the case, without any order as to costs.