JUDGMENT Satish Chandra, J. - This is a defendant's appeal. The suit was for recovery of Rs. 1,400/-. 2. The plaintiff alleged that under a contract dated 16th January, 1954, the defendant had agreed to supply to the plaintiff 110 bags of sugar of D-28 quality of the Diamond Pipraich Sugar Mills at the rate Rs. 29/6/- per maund. The contract was for ready delivery and the delivery was to be made at Chhindwara. The plaintiff paid Rs. 550/- as an advance towards the contract. In spite of repeated notices the defendant did not supply the goods. The plaintiff, therefore, claimed Rs. 800/- by way of damages for breach of the contract 5 and also wanted refund of Rs. 550/- paid is as advance. He also claimed interest on the advance money. In defence it was pleaded that the contract was for mill delivery. The defendant had agreed to deliver the goods to the plaintiff at Allahabad and not at Chhindwara. The defendant offered delivery of the goods on 29th December, 1954, but the plaintiff refused to accept it. In the contract no time was fixed for delivery. The defendant attempted to deliver the goods as soon as he got it from the mill. He, therefore, committed no breach. On the other hand the plaintiff was guilty. The defendant had to re-sell the goods on refusal by the plaintiff to accept them at Rs. 28/12/-. He, therefore, suffered a loss in the bargain. 3. The trial court upheld the defence case completely. It found that the plaintiff had committed a breach of the contract. The defendant had to re-sell the goods at Rs. 28/12/-. The contract price was Rs. 2916/-. The defendant was, therefore, entitled to a sum of Rs. 1961/-. Deducting this sum from the amount of Rs. 550/- paid as advance to the defendant by the plaintiff came the balance of Rs. 353/15/-. The plaintiff's suit was decreed for this sum. 4. The plaintiff went up in appeal. The appellate court found that the contract was for mill delivery which meant that the defendant was liable to make delivery only after he had received the goods from the mill. No time was actually fixed for the performance of the contract. The defendant had to dispatch the goods to Chhindwara and not to Allahabad as contended by him. The appellate court found that the contract was for mill delivery which meant that the defendant was liable to make delivery only after he had received the goods from the mill. No time was actually fixed for the performance of the contract. The defendant had to dispatch the goods to Chhindwara and not to Allahabad as contended by him. It was then held that the defendant had got 110 bags of sugar from the mill in April, 1954. He was thus in a position to perform his promise with the plaintiff at that time. The plaintiff by a notice dated 61h July, 1954, asked the defendant to supply the sugar at an early date. The defendant should have, therefore, made the delivery in July, 1954 but he did not do so. He, therefore, committed a breach of the contract. His offer to make delivery in December, 1954 was too belated to be a valid performance of the contract. Having found that the breach was committed by the defendant in July, 1954 the learned Judge calculated the damages as the difference between the contract price and the market rate in July, 1954. In July, 1954 the rate was held to be Rs. 31/8/- and the damages of 110 bags was calculated to be Rs. 643/-. Adding this to the advance of Rs. 550/- as also Rs. 35/- interest thereon, the claim was decreed for a sum of Rs. 1,228/-. 5. The defendant has now come to this Court in second appeal. For the appellant it was urged that the finding that the defendant had committed a breach of the contract was based upon a misreading of the alleged admission of the defendant. The question was as to whether the defendant received the requisite quantity of goods from the mills so as to enable him to honour the contract. The learned Judge observed :- "On this point the matter seems to be concluded by the admission of Rama Shanker defendant himself in cross-examination that between September, 1953 and April, 1954 he got only 110 bags of sugar from Diamond Sugar Mills." 6. This was a correct reproduction of the statement made by the defendant. There was thus no misreading of the evidence. This was a correct reproduction of the statement made by the defendant. There was thus no misreading of the evidence. The learned Judge then discussed the other evidence and circumstances of the case and came to the conclusion that the defendant had failed to prove that he did not receive delivery of 110 bags of sugar from the Diamond Sugar Mills by July, 1954. He, therefore, held that the defendant was in a position to make the delivery but he did not do so. The finding is based upon an assessment of the evidence on the record and being on a question of fact, namely whether the defendant had got delivery of 110' bags of sugar from the Mills, is binding in a second appeal. 7. The only other question urged related to the measure of damages. The contract price was Rs. 29/6/-. The learned Judge relied upon the statement of Ram Kishan according to whom the rate in July, 1954 was Rs. 31/8/-. For the appellant it was stressed that there was no evidence to prove the market rate of this sugar at Chhindwara which was the place where the deli, very was to be made. The defendant having committed a breach of the contract was liable to pay the difference between the market price and the contract price at the place of delivery, namely Chhindwara. The plaintiff ought, therefore, to have proved the rates at Chhindwara. Ram Kishan, whose evidence has been relied upon, nowhere stated that the rates mentioned by him were the market rates at Chhindwara. It was urged that there being no evidence as to the market rate at Chhindwara the suit for damages could not be decreed. 8. Ram Kishan has made it clear that the contract rate of Rs. 29/6/- was the ex-mill rate in January, 1954 when the contract was entered into. The ex-mill rate in July, 1954 was Rs. 31/8/-. The contract was for supply of D-28 quality of sugar of the Diamond Sugar Mills. The contract was not for delivery of sugar in general. The contract was for mill delivery, that is to say the defendant would be liable to make delivery when the Mill delivered the goods. The contract, therefore, was not for goods that was available in the market. The contract was not for delivery of sugar in general. The contract was for mill delivery, that is to say the defendant would be liable to make delivery when the Mill delivered the goods. The contract, therefore, was not for goods that was available in the market. The contract was confined to a specified quality of a particular brand of sugar which was to be delivered after it was available for delivery from the Mill. The contract was made at the ex-mill rate. These facts coupled with the further situation that there is no suggestion that the ex-mill rate of this kind of sugar varies from place to place would go to suggest that the ex-mill rate was the relevant rate to determine the liability of the parties in damages. The fact that the defendant was obliged to dispatch the goods to Chhindwara would be, under the circumstances, immaterial on the question of the measure of damages. The ex-mill rate would govern the quantum of damages. The damages have been calculated at that rate. In my opinion the finding of the appellate court is justified. 9. For the appellant reliance was placed upon M/s. Murlidhar Chiranjilal v. M/s. Harishchandia Dwarkadas, A.I.R. 1962 SC 370. There, under the contract the delivery was to be made at Kanpur though the goods were to be dispatched to Calcutta. The contract had been entered into with a view to re-sell the goods but it was found that the purchaser was not bound to re-sell the goods at Calcutta. He was free to re-sell the goods at Kanpur. Therefore, the proper place for delivery was Kanpur and the rate of goods at Kanpur and not at Calcutta would be material. In that case evidence had been led to establish the rate on the date of the breach at Calcutta. This was held to be irrelevant. The case, is, in my opinion, distinguishable, because, there the contract was for goods which were readily available in the market at the various relevant places. For such goods the market rate would naturally vary from place to place. That is why the market rate at Calcutta was held to be immaterial. In the present case, how-ever, the goods are specified and were one which were available on being delivered by the Mill alone. For such goods the market rate would naturally vary from place to place. That is why the market rate at Calcutta was held to be immaterial. In the present case, how-ever, the goods are specified and were one which were available on being delivered by the Mill alone. There is no suggestion that there was any difference in market rate at various places of such goods. Under these circumstances, the ex-mill rate would govern the question of damages. The suit could, therefore, not fail for not having established positively what was the market rate at Chhindwara of this quality of sugar. 10. In the result, the appeal fails and is accordingly dismissed with costs.