Judgment 1. Theabove appeal suit is directed against the decree and judgment dated 30.1.1980 made in O.S.No.127 of 1976 by the Court of Additional Subordinate Judge, Tuticorin, thereby decreeing the suit filed by the respondent- Co-operative Spinning Mills Limited, for the recover of damages on breach of contract. 2. The history of the case as put forth by the respondent/plaintiff before the trial court is that the first defendant/first appellant entered into a contract with the plaintiff/respondent through the second respondent/second defendant, agreeing to purchase 5 bales of gray cotton yarn at Ex-Mill rate of Rs.124 per 4.5.kgs., and the documents were to be sent through the bank; that a contract dated 18.9.1974 had been entered into and duly signed by parties and by a letter dated 27.9.1974, the first appellant/first defendant also accepted the contract; that the second appellant/second defendant had given a sale confirmation letter dated 14.9.1974; that the first appellant, through the second appellant also entered into another contract for purchase of 4 bales of gray cotton yarn at Ex-Mill rate of Rs.195 per 4.5 Kgs. that for this order also. the documents were agreed it be sent to the bank; that accordingly, the contract dated 20.9.1974 had been entered into duly signed by parties, the first defendant accepting the contract as per his letter dated 26.9.1974 and the second defendant writing a sale confirmation letter dated 17.9.1974; that the letters of the first defendant accepting the contracts had been respectively received by the plaintiffs on 30.9.1974 and on 28.9.1974. 3. The further averments of the plaint are that the period stipulated for delivery is only an estimated one and the understanding between parties was that the plaintiff was not responsible for loss or damage sustained, or occasioned by reason of late delivery and that in no case, late delivery shall constitute a valid ground for the defendants to reject the goods; that the first appellant sent Rs.4,038.20 by draft for one bale of goods covered under contract No.83Co-operative Spinning Mill74-75 and the said goods were sent by lorry; that the rest of the goods were sent under four Invoices, viz., 217, 218, 223 and 224 on 3.10.1974, the values respectively being Rs.7,588. 80, Rs.5,059, 20, Rs.4,088.20 and Rs.8,076.40 making a total of Rs.24,762,60; that the first appellant wrote two letters on 3.10.1974 requesting the respondent to send the goods immediately, which the respondent received on 5.10.1974 and by that time, the goods were already despatched, as a result of which the respondent sent a telegram dated 5.10.1974 to the said effect, but the first appellant, after a long silence replied on 11.10.1974 accusing the respondent of late delivery of goods and further stating that the yarn price at that time had fallen down and seeking reduction of 20% in the sale price; yet another letter dated 16.10.1974 had also been written by the first appellant seeking reduction of price, for which the respondent sent a reply dated 21.10.1974 stating that no reduction in price could be given and, hence, ultimately the respondent had to state in his letter dated 27.1.1975 that the goods were not cleared within a week and they would be sold in open market and difference of price, if any, would be recovered from the first appellant; that the first defendant wrote another letter dated 1.2.1975 containing false allegations and hence the respondent issued a Lawyers notice dated 22.2.1975 calling upon both the appellants to pay the money as mentioned therein. Since the appellants did not take delivery of the goods, they were sold on 14.4.1975 to M/s.Super Yarn Traders at Rs.92 per 4.54 Kgs. as against the contract price of Rs.124 and the other goods at Rs.142 as against the contract rate of Rs.195 thus the difference in price being arrived at Rs.6,380 as per the terms of the contract, the plaintiff became entitled to claim the same with interest at 16% under clause 7(h) of the contract from 12.10.1974; that the amount due as on 12.4.1975 under Invoice Nos.217 and 218 calculating to a total amount of Rs.4,181,50 coupled with demurrages thus, the plaintiff arrived at the figure of Rs.10,188.69 and would plead that since the second defendant is a broker, who concluded the contracts between the plaintiff and the first defendant, thus both the defendants became liable to pay the said amount and since both the appellants are income tax assessees and the appellant being the Cooperative Spinning Mill, moratorium Acts do not apply to them. 4. 4. In the written statement filed by the first defendant, besides generally denying the allegations of the plaint as false and incorrect, it would be specifically pleaded that, (a) It is up to the proof of the plaintiff, that its Special Officer can sue for the Mills, (b) that the court has got no jurisdiction to try the suit, since no part of the cause of action took place within the jurisdiction of the court; (c) the offer, acceptance and the very contract were entered into at Madurai, that the money payable and the delivery of goods to be taken are all at Madurai, that the plaintiff being a Co-operative Mills, is governed by the Co-operative Societies Act, and, as such proceeding should have been instituted before the Joint Registrar, Co-operative Societies. and not before the civil court, especially when there is a bar of jurisdiction of civil court; (d) that the second defendant since has nothing to do with the suit, is not a necessary party and the suit is bad for mis-joinder; (e) that this defendant agreed to purchase and gave despatch instruction through Bank during September 1974 and received the confirmation letter dated 17.9.1974, but quite contrary to the agreement, the plaintiff delayed the despatch of goods and failed the despatch within 30.9.1974 and on 1.10.1974, the defendant cancelled the order over phone, further instructing the plaintiff not to despatch the bales as confirmed later by letter dated 3.10.1974; that since the goods were sent on 3.10.1974 under Invoice Nos.217, 218, 223 and 224 for a total value of Rs.24,762.60, this defendant did not clear the goods, since even on 1.10.1974 itself, the plaintiff had been informed not to despatch the goods cancelling the contract over phone as confirmed by letter dated 3.10.1974; (f) that on 3.10.1974 the alleged date of despatch of goods, there was no subsisting contract, and, hence, the despatch, on that day was not valid and binding on this defendant; (g) the further pleadings of the first defendant are that the despatch instructions were given as early as on 14.9.1974 and 17.9.1974 when the contract was concluded orally and having failed to perform the contract within the stipulated time, the plaintiff is not entitled to claim the relief sought for; (h) that the time is the essence of the contract and there was no compromise or understanding between parties, otherwise, so far as the time element is concerned; (i) that it is false that in case of late delivery, he should not constitute a valid ground for rejecting the goods, nor is it true to say that it was known to parties that the goods could not be sent within September 1974, and, hence, now the plaintiff is estopped from taking up such pleas; (j) that the alleged agreement to pay interest much less, at 16 per cent besides being false is not attracted to the facts of the case; that the printed conditions are not agreed upon as terms of contract, and, as such, they are not binding on the parties; that it is utterly false to aware that the contract signed by this defendant was received only on 30.9.1974 whereas, the contract had been validly concluded on 14.9.1974 and 17.9.1974 followed by the despatch instructions with no loss of time; (k) that the time stipulated in the contract expired on 30.9.1974 itself and since the goods were not despatched within the time, on 1.10.1974, the contract stood cancelled by the despatch instructions having been revoked over phone by this defendant, which came to be confirmed by the letter dated 3.10.1974; (l) however, the despatch of goods on 3.10.1974 is not according to law and is not valid. nor binding, since there had been breach of contract by the plaintiff due to efflux of time fixed for its performance; that the plaintiff having despatched the goods on 3.10.1974 in a wanton and wilful manner, though the same was not agreeable for this defendant, his next offer to take delivery on reduction of 20 per cent in its price, had not been accepted by the plaintiff, and hence, the same did not fructify; (m) that the breach of contract had been committed on the part of the plaintiff having failed to comply with the terms of contract within the stipulated time; that the despatch of goods in spite of cancellation was not valid and binding on this defendant and in no manner, he would become liable for damages incurred on such illegal despatch; that there is no contractual obligation on this defendant after the expiry of the stipulated time from 1.10.1974 onwards, and hence, letters dated 21.10.1974 and 27.1.1975 are all not sustainable and not binding on this defendant. The selling of the goods by the plaintiff in the open market is on its own accord and this defendant has nothing to do with the same; (n) that this defendant is not liable in any manner for compensating the alleged difference in value of the goods at Rs.6,380 muchless, with interest as calculated by the plaintiff; that the plaintiff is not at all entitled to any damages or interest from this defendant; that there was no cause of action for the suit and the one alleged is false, and that the plaintiff is not in any manner entitled to any of the reliefs as prayed for and the suit is liable only to be dismissed. 5. In the written statement filed by the second defendant, he would almost adhere to the pleadings of the first defendant in his written statement. 6. Based on the above pleadings, put forth on the part of the contesting parties, the trial court framing seven issues, which are: 1. Whether the suit is not maintainable and is barred under the provisions of Co-operative Societies Act. 2. Whether this Court has no jurisdiction. 3. Whether the suit is bad for misjoinder of parties. 4. Whether 2nd defendant is an unnecessary party. 5. Whether defendants are liable for any breach of contract. If so to what amount. 6. Whether defendants are liable to pay any interest. 2. Whether this Court has no jurisdiction. 3. Whether the suit is bad for misjoinder of parties. 4. Whether 2nd defendant is an unnecessary party. 5. Whether defendants are liable for any breach of contract. If so to what amount. 6. Whether defendants are liable to pay any interest. 7. To what relief if any is the plaintiff entitled. has ordered for the trial of the above suit and has ultimately arrived at the conclusion to pass the decree as prayed for by the plaintiff, testifying the validity of which the defendants herein have come forward to prefer the above appeal on certain grounds such as: (i) the court below should have dismissed the suit holding that the court has no territorial jurisdiction to try the suit, (ii) the court below should have also further held that the suit is not maintainable and is barred under the provisions of Co-operative Societies Act; (iii) the learned Subordinate Judge erred in holding that the first defendant committed breach of the contract and he is liable for damages; (iv) the court below has not properly assessed and evaluated the evidence on record and that led the court to make wrong conclusions; (v) as the time is of the essence of the contract and as the plaintiff failed to deliver the goods within the time stipulated, there is no breach of contract on the times stipulated, there is no breach of contract on the part of the defendants; (vi) as the contract is for unascertained goods, the plaintiff is bound to give notice of the fact that the goods are ready for delivery prior to requiring despatch instructions. Admittedly no such notice was given by the plaintiff; (vii) the defendant was entitled to cancel the contract because of the default of the plaintiff. Accordingly the 1st defendant did cancel the contract; (viii) the learned Subordinate Judge failed to advert to several evidentiary factors which establish that the defendants cancelled the contract due to the default of the plaintiff; (ix) the court below further failed to see that in the instant case the plaintiff has no right to resell and claim the difference as damages; (x) even assuming the plaintiff is entitled to damages, the plaintiff is entitled to only the different in market rate as on 30.9.74 and (xi) the resales alleged to have been done are under Exs.A-19 and A-44. The resales are not of the same goods as under Exs.A-19 and A-44 large quantities have been sold. 7. During arguments, the learned counsel appearing for the appellants would contend that he is representing the buyer and the other side is representing the Co-operative Mills, and regarding certain facts, there is no dispute at all; that the contract was for the sale of cotton yarn by Exs.A-23 and A-25, wherein five bales of cotton was ordered to be supplied to the buyer, that the contracts were dated 14.9.1974 and 17.9.1974; that the second defendant is the broker, who brought about the contract; that he is the first defendant/purchaser and both are appellants herein and they both are from Madurai; that the plaintiffs Mill is located at Nazarath in Tuticorin District; that the suit had been laid before the Sub Court, Tuticorin, and admittedly since the contract was entered into at Madurai and money is payable at Madurai and since it is the contract for sale of goods, the Sale of Goods Act also comes into operation; that the learned Judges reasoning regarding the jurisdiction question is against law; that the case is governed by the Sale of Goods Act, where the damage occurs, and the buyer refuses to take delivery; that under Sale of Goods Act, re-sale could be resorted to only when the property in the goods have been passed on and there is a default on the part of the buyer, that under these circumstances, Sec.18 of the Sale of Goods Act comes into operation. 8. The learned counsel would argue that it becomes ascertained when there is intimation to the party that the contract itself says that the goods are ascertained; that unless and until the plaintiff says that the goods are ready and ascertained, they are unascertained goods only; ‘At this circumstances, the court says that he is not liable for goods in a deliverable state’. 9. 9. The learned counsel for the appellants would cite a judgment delivered in P.S.N.S. Ambalavana Chettiar and Company v. Express Newspapers P.S.N.S. Ambalavana Chettiar and Company v. Express Newspapers P.S.N.S. Ambalavana Chettiar and Company v. Express Newspapers , A.I.R. 1968 S.C. 741 wherein it is held: “Sec.18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. It is a condition precedent to the passing of property under a contract of sale that the goods are ascertained. The condition is not fulfilled where there is a contract for sale of portion of a specified larger stock. Till the portion is identified and appropriated to the contract, no property passes to the buyer.“ That it is the time that is the essence of the contract; that the seller has failed to deliver the goods within the month of September, which is specified in the contract itself; that both the defendants are at Madurai. Regarding jurisdiction, it is Sec.20, C.P.C. that is relevant and to this effect, the learned counsel would cite a judgment delivered in P.H.Sanghvi v. Asher Textiles Ltd. P.H.Sanghvi v. Asher Textiles Ltd. P.H.Sanghvi v. Asher Textiles Ltd., (1961)2 MLJ. 337 wherein it is held: ”Practice - Contract between parties agreeing to vest jurisdiction in one of two competent courts Scope of. It is no doubt true that where there are two competent courts which can try and deal with the subject-matter of a claim on a contract, it would be open to the parties to agree that the dispute arising under the contract should be adjudicated by one of such courts. It is equally well settled that contracts which attempt to oust the jurisdiction of one of the courts, which under the law can cognizance of the suit, will have to be strictly construed. Where the clause is a contract stipulated that all proceedings in respect of it shall be taken in a court of original jurisdiction in Tirupur and it so happens that only a District Munsifs Court exists at that place with limited pecuniary jurisdiction, a suit claiming an amount beyond the pecuniary jurisdiction of the said court will be outside the purview of the clause. Such a clause cannot be interpreted to mean any court having original jurisdiction over Tirupur, such as the Sub Court at Coimbatore. The general rule of construction of a written contract is that its language should be understood its ordinary and natural meaning even though such a construction may not carry out the purpose, which the parties may be supposed to have intended.“ Citing the above judgment, the learned counsel for the appellants would say that the above proposition supports his case and would question as to how the courts in Tirunelveli District would become competent to try the suit and for this question thee is no answer from the other side. It is the plaintiffs case that the contract was brought about the Madurai and therefore the competent jurisdiction would come to only for those courts which are at Madurai. 10. The learned counsel appearing for the appellants would further contend that it is important to decide whether the defendants are liable for any breach of contract, if so to what amount; that the answer lies in finding out as to who was responsible for the breach of contract and whether the defendants would in any manner become responsible for the revocation of contract, so as to become liable for payment; that admittedly the contracts were entered into on 18.9.1974 and 20.9.1974 under Exs.A-23 and A-25 respectively that Exs.A-22 and A-24 are the sale confirmation letters respectively dated 14.9.1974 and 17.9.1974 and admittedly the despatch was on 3.10.1974; that with regard to the delivery of the consignments, the contracts stipulate that the goods should be delivered during September, 1974; that the plaint does not say that the contract was based on only the letter of acceptance and there is no mention about the acceptance of the contract; that there is no basis for the trial court Judge to give a finding to the effect that only because of the delay in sending the agreement signed, the plaintiff was not able to comply with the clause pertaining to the specification of time during September, 1974. The learned counsel would say that in a suit for damages, a Specific case has to be put up in the plaint, which has not been done in this case; that nowhere mention is made about the despatch instructions thereby meaning that unless and otherwise the goods are received, the delivery cannot be taken as effected to the defendants; that the re-sale was done on their own accord, for which the defendants cannot be made parties; that it is a condition precedent that the goods should be despatched in the month of September, 1974 and in such event, the contract is concluded only after the acceptance of sale by the purchaser by Communication. The learned counsel would cite from the evidence of D.W.2 that if the goods are despatched only after ascertaining from the buyer whether the goods could be sent, they could be despatched and not otherwise and till such time, prior to such ascertainment from the buyer, if the goods are sent, it is the owners risk. At this juncture, the learned counsel would cite two judgments reported in (1) A.B.C. Laminart (P) Ltd. v. A.P. Agencies, Salem A.B.C. Laminart (P) Ltd. v. A.P. Agencies, Salem A.B.C. Laminart (P) Ltd. v. A.P. Agencies, Salem , A.I.R. 1989 S.C. 1239 and Premium Industries India Ltd., Calcutta v. Quality Fabricators, (1998)3 MLJ. 652 :Premium Industries India Ltd., Calcutta v. Quality Fabricators (1998)II C.T.C. 492. In the first judgment cited above, it is held that “Confirmation order acknowledging receipt of order, registering, it ‘subject to terms and conditions overleaf. The general terms and conditions printed overleaf included the clause in dispute regarding the jurisdiction of particular court. There is, therefore, no escape from the conclusion that the said clause formed part of the agreement and the parties would be bound by the contract itself. It is not open to the respondent to deny existence of the clause itself.” 11. The general terms and conditions printed overleaf included the clause in dispute regarding the jurisdiction of particular court. There is, therefore, no escape from the conclusion that the said clause formed part of the agreement and the parties would be bound by the contract itself. It is not open to the respondent to deny existence of the clause itself.” 11. In the later judgment cited above regarding the territorial jurisdiction of the court and Sec.20 of the C.P.C., it is held that, “There is a clause in the agreement between the parties providing the dispute if any would be decided in a court located in a particular place The plaintiff filing the suit at Madras where cause of action arose - Clause restricting jurisdiction not containing words” alone“,” only“,” exclusive “and like Hence jurisdiction of Madras Court not ousted and held the suit had been rightly entertained by City Civil Court, Madras.” 12. In reply, the learned counsel appearing for the respondent would contend that according to the contract, the appellants accepted to purchase five bales of yarn each containing 90.8 kgs.; that what had been ascertained and accepted by the appellants had alone been sent and hence there is no question of uncertainty or unascertainment of the goods; that they did not treat by words but by deed they sent them and hence there is absolutely no room for uncertainty; that regarding the allegation raised before the lower court that the respondent did not despatch the goods in time and therefore they terminated the contract over phone, the learned counsel would answer that before the phone message reached them, the goods had been despatched. Regarding time, the learned counsel would argue that since it is a case arising out of a contract, it is not only a concluded contract but in consequence as a result of the communication, the goods had also been sent on such concluded contract. 13. Regarding jurisdiction, the learned counsel would point out that it is not Sec.20 of the C.P.C. as relied upon by the other side that would apply to the context of the case but it is Sec.19 that would be appropriate and would cite the judgment reported in State of Meghalaya and others v. Jyotsna Das State of Meghalaya and others v. Jyotsna Das State of Meghalaya and others v. Jyotsna Das , A.I.R. 1991 Gau. 96 and would place reliance on para No.16 of the said judgment, which is extracted hereunder: “The question is whether the expression” wrong done “should be construed to mean only the act which caused the wrong or should also include and cover the effect of the act. There would be no difficulty if only the act which caused wrong has to be taken into consideration for then the place where the act was done would be the place where the wrong was done, but in my opinion, it shall not be reasonable and proper to put such a restrictive meaning to the expression” wrong done“, which could very well and justifiably include the effect of the act, for” wrong done “ is in reality the effect of the ‘act’. The ‘act’ by itself if it does not have any effect or results in causing effect would hardly be actionable, it is its effect which results in harm, loss or damage, etc. which together with such effect constitutes the ‘wrong done’. It should consequently follow that if an act is done, say at place ‘x’ and its effect which constitutes the wrong is at place ‘Y’ it should not be said that the wrong was not done at place ‘Y’ i.e., that it should not be restricted to mean that the wrong was done only at place ‘x’.“ Citing the above proposition, the learned counsel would continue to argue that in the present case, the wrong committed by the appellants in not taking the delivery of the goods is at Madurai; that the plaintiff was residing at Nazarath, hence Tuticorin was the right place for the suit to be filed. Commenting on the judgment cited by the other side reported in P.H.Sanghvi v. Asher Textiles Ltd. P.H.Sanghvi v. Asher Textiles Ltd. P.H.Sanghvi v. Asher Textiles Ltd., (1961)2 MLJ. 337 the learned counsel for the respondent would argue that though the courts at Madurai could have jurisdiction, the jurisdiction of the courts at Nazarath or Tuticorin is not ousted and would say that the proposition had been sent only from Nazarath and thus the offer has been made from Nazarath and only the acceptance was at Madurai and would ultimately say that the contract was concluded only at Nazarath. 14. 14. For the question, whether the property in the goods had been passed, the learned counsel would argue that it was a condition precedent and would cite a judgment reported in Kollipara Sriramulu (Dead) by his legal representative v. T.Aswatha Narayana (dead) by his legal representative and others Kollipara Sriramulu (Dead) by his legal representative v. T.Aswatha Narayana (dead) by his legal representative and others Kollipara Sriramulu (Dead) by his legal representative v. T.Aswatha Narayana (dead) by his legal representative and others , A.I.R. 1968 S.C. 1028 wherein it is held that,” (A) Contract Act (1872), Secs.10 and 7 - Oral Agreement - Reference to execution of Formal contract - Effect - Whether prevents binding bargain. A mere reference to a future formal contract in an oral agreement will not prevent a binding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. The fact of a subsequent agreement being prepared may be evidence that the previous negotiation did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement.“ 15. The learned counsel would further argue that under Sec.23(1) of the Sale of Goods Act, there are two conditions imposed and as per the said conditions: (i) the goods are not unascertained goods by description but five bales and (ii) it is in a deliverable stage. At this juncture, the learned counsel would cite a judgment reported in Firm Bachharaj Amolakchand v. Firm Khupchand Narsingdas and others Firm Bachharaj Amolakchand v. Firm Khupchand Narsingdas and others Firm Bachharaj Amolakchand v. Firm Khupchand Narsingdas and others , A.I.R. 36 1949 Nag. 199 and would contend that the crucial test is passing of the property. 16. The learned counsel would cite yet another judgment reported in P.S.N.S.Ambalavana Chettiar and Co. 199 and would contend that the crucial test is passing of the property. 16. The learned counsel would cite yet another judgment reported in P.S.N.S.Ambalavana Chettiar and Co. Ltd. and another v. Express Newspapers Ltd., Bombay another v. Express Newspapers Ltd., Bombay another v. Express Newspapers Ltd., Bombay , A.I.R. 1968 S.C. 741 wherein it is held that, ”Sec.18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. It is a condition precedent to the passing of property under a contract of sale that the goods are ascertained. The condition is not fulfilled where there is a contract for sale of portion of a specified larger stock. Till the portion is identified and appropriated to the contract, no property passes to the buyer.“ Citing the above proposition, the learned counsel would say that the despatch of goods was on 3.10.1977; that even until that day, what was there to show the ascertainment is the crucial question for ascertaining the reason. With the above argument, the learned counsel for the respondent would pray to dismiss the above appeal suit with costs. 17. On the above pleadings and evidence adduced on both sides and arguments advanced, the following points would arise for consideration: 1. Whether the suit has been instituted out of jurisdiction before the trial court. 2. Whether the time was considered the essence of the contract so far as the contract entered into in between the parties to the dispute.. 3. Whether the lower court is right in arriving at the decision to decree the suit as prayed for. 4. What relief, if any, the parties are entitled to. 18. Prior to entering into the discussion regarding the points raised for determination of the above appeal, it is relevant to have a short discussion on the facts of the case. 3. Whether the lower court is right in arriving at the decision to decree the suit as prayed for. 4. What relief, if any, the parties are entitled to. 18. Prior to entering into the discussion regarding the points raised for determination of the above appeal, it is relevant to have a short discussion on the facts of the case. It is a case instituted by the respondent/Co-operative Spinning Mills located at Nazarath through its Managing Director against the appellants regarding the purchase of the gods belonging to the respondent by the first appellant, for which the second appellant acted as the agent and on account of the non-performance of the contract entered into under contract No.77/74-75 dated 18.9.1974 and 83/74-75 dated 20.9.1974, the respondent/plaintiff on its part would allege that in spite of its performance of the terms and conditions stipulated in the contract, since the appellants/defendants did not come forward to take delivery of the goods in time and with their knowledge that the goods had been sent, as per the agreement, they auctioned the goods and sold for a lower price and it is incumbent on the part of the appellants to compensate the difference of sale with interest thereby praying the court to direct the defendants to pay a sum of Rs.10.188.69 with subsequent interest and costs. 19. 19. On the part of the appellants it would be contended that it was a contract for moveables wherein time was considered to be essence of the contract and it was specifically agreed as one of the terms of the contract that the goods have to be despatched in September, 1974 and since the respondent did not come forward to honour the time element in despatching the goods within the end of September, 1974, which had been sent only on 3.10.1974, the contract had been cancelled over telephone and in spite of such irregularities committed on the part of the respondent, a suggestion was made on the part of the appellants, observing the usual norms of business, to give a reduction of 20% in the price fixed in view of the delayed despatch of the goods and even that was not considered by the respondent, as a result of which they were not in a position to take delivery of the goods since colossal loss was anticipated on account of the delayed delivery and hence their argument is that they are not liable to pay any damages as claimed by the respondent and would pray for dismissing the suit instituted by the respondent with costs. It is further contended by the appellants that the suit was instituted out of jurisdiction at Tuticorin and on such jurisdictional point also, the appellants would plead that the suit is not maintainable in the lower court. 20. The trial court framing seven issues, based on the facts and circumstances of the case, as put forth by parties, has ordered the trial in which the respondent/plaintiff would examine one witness as P.W.1 and mark as many as 50 documents as Exs.A-1 to A-50 and on the part of the appellants/defendants, they would examine two witnesses as D.Ws.1 and 2 and would mark 30 documents as Exs.B-1 to B-30. In consideration of these evidences as put forth by parties and appreciating the same in its own way, the trial court would ultimately arrive at the conclusion to decree the suit as prayed for with costs and it is only testifying the validity of the decision arrived at by the lower court and challenging the same, the appellants/defendants have come forward to prefer the above appeal suit on grounds as already traced. 21. Exs.A-22 and A-24 respectively dated 14.9.1974 and 17.9.1974 are the sale confirmation letters. 21. Exs.A-22 and A-24 respectively dated 14.9.1974 and 17.9.1974 are the sale confirmation letters. Ex.A-23 dated 18.9.1974 and Ex.A-25 dated 20.9.1974 are the contracts entered into by the parties and they have been received back by the respondent with the approval of the first appellant respectively on 30.9.1974 and 28.9.1974. Exs.A-31 to A-34 are the invoices for the goods sent. Ex.A-28 dated 3.10.1974 is the letter sent by the first appellant to the respondent stating that if the goods had not been sent before 30.9.1974, the contract could be treated as cancelled. Ex.A-29 is yet another letter dated 3.10.1974 regarding the second contract entered into forming part of the same transaction wherein besides regretting the non-supply of goods in time, the first appellant had also urged the respondent to send the goods concerned expeditiously. Ex.A-35 dated 11.10.1974, and Ex.A-36 dated 16.10.1974 are the subsequent correspondence between parties. These are the vital documents concerned with the decision of the case in hand. With these documents besides others coupled with the meager oral evidence adduced by parties, if the above appeal is to be decided, we will have to go according to the points for determination. 22. Point No.1:This is a question of jurisdiction raised on the part of the appellants pleading to the effect that the suit has been wrongly instituted in the court of Subordinate Judge, Tuticorin as though a cause of action would arise from Nazarath, wherein the respondents Co-operative Spinning Mills is located. but on the contrary, it is Madurai from where the contracts were initiated and entered into and where both the appellants reside and it was Madurai where the goods were sent and delivery was not taken and hence the jurisdiction would go to the competent court at Madurai and not to any of the courts at Tirunelveli District. In consolidation of their argument, the appellants would take shelter under Se.20 of the Code of Civil Procedure, 1908. On the part of the respondent, it would be pleaded that it is not Sec.20 of the C.P.C. that would be relevant to decide the jurisdiction but it is Sec.19, according to which the suit has been rightly instituted in the trial court. Sec.19 of the Code of Civil Procedure reads: “19. On the part of the respondent, it would be pleaded that it is not Sec.20 of the C.P.C. that would be relevant to decide the jurisdiction but it is Sec.19, according to which the suit has been rightly instituted in the trial court. Sec.19 of the Code of Civil Procedure reads: “19. Suits for compensation for wrongs to person or moveables:Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.” According to the above section, the option is given to the plaintiff in either of the courts to institute the suit and hence it is the argument of the respondent that as the plaintiff, it exercised its option in the right way and hence there is no point in loitering too much on the jurisdiction question. 23. On the part of the appellants, it would be contended that it is Sec.20 of the C.P.C. that would come into play according to which the cause of action would arise only at Madurai wherein both the defendants are residing. Sec.20 of the C.P.C. reads: “20. 23. On the part of the appellants, it would be contended that it is Sec.20 of the C.P.C. that would come into play according to which the cause of action would arise only at Madurai wherein both the defendants are residing. Sec.20 of the C.P.C. reads: “20. Other suits to be instituted where defendants reside or cause of action arises:Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction’ (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.“ In dissecting the above Section, it comes to be known that Sec.20, C.P.C. introduces a subjective clause making it clear that” subject to the limitations aforesaid “ denoting that all the preceding Secs.No.9 to 19 forming part of Part I of the C.P.C., suits could be instituted in the manner as contemplated under Sec.20 of the C.P.C. Therefore, it is clear that only subject to the limitations contemplated under Sec.19 also, the right could be exercised under Sec.20 and not in exclusion of those contemplated under Sec.19. Therefore, it could be safely arrived at that when Sec.19 becomes operative, Sec.20 cannot come into play and hence the arguments advanced on the part of the appellants to the effect that it is Sec.20 of the C.P.C., which is relevant and not Sec.19 to decide the jurisdiction point is only an illusion and hence it is hereby decided that it is the plaintiffs option that had been rightly exercised under Sec.19 of the C.P.C. and this point is decided against the appellants and in favour of the respondent concluding that the suit has been instituted rightly in the court having competent jurisdiction to try the same and not otherwise as claimed by the appellants. It is further clarified that even if the suit could be instituted at Madurai as per the arguments of the appellants under Sec.20, C.P.C. since it is the plaintiff who exercised his option to file the suit, it has been rightly exercised and such right of the plaintiff is not in any manner ousted. 24. Point No.2:So far as this point, whether the time is the essence of the contract is concerned, though generally time is considered to be the essence of the contract, there have been many judicial pronouncements ultimately deciding the point that time is not the essence of the contract wherein immovable properties are the subject matters unless it is specifically stipulated in the contract itself that time is the essence of the contract and the other side is put on notice. Hence, it goes without saying that so far as the moveables are concerned with the contract time is considered to be essence of the contract in general. So far as the contracts entered into in this case, by the parties are concerned, they are under Exs.A-23 and A-25, wherein it is specifically stated in para No.6, the particular point of time at which the goods are to be delivered under the heading ‘delivery’” during September, 1974“. Hence, barely at the perusal of these two vital documents, it could be initially held that the time had been considered as the essence of the contract. Hence, barely at the perusal of these two vital documents, it could be initially held that the time had been considered as the essence of the contract. But it is the pleading and argument of the respondent/plaintiff that the period stipulated for delivery is only an estimated one and the understanding between parties was that the plaintiff was not responsible for loss or damage sustained or occasioned by reason of late delivery and that in no case late delivery shall constitute a valid ground for the defendants to reject the goods. But, no valid evidence has been adduced on the part of the plaintiff either through the Managing Director, who represents the plaintiff/Co-operative Spinning Mill or by any other responsible Officer, who is concerned with the policy making or decision taking sphere of the mill or any one else directly linked with the contracts. The sole witness examined on its part being a clerk in the mill being not a competent person to speak to the transactions especially in the absence of any declaration in any manner that he was concerned with the said transactions or contract entered into in between the parties. Merely based on available records, this witness would bluntly say that if any delay is caused, the mill is not responsible and only after the contract was concluded, they would despatch the goods and as such on 3.10.1974 also they did the same and it had reached the destination on 5.10.1974, The other correspondence, as already seen in general assessment have been to the effect that the appellants terminated the contract early on a telephonic message on 1.10.1974 and in spite of that the respondent despatched the goods on 3.10.1974 which is deliberate on the part of the respondent. But, the respondent would contend that they received Exs.A-28 and A-29 officially on 5.10.1974 and in that too only Ex.A-28 speaks about not sending the goods and Ex.A-29 would still poster the goods to be despatched and as such, time was not considered to be the essence of the contract even by the appellants and therefore the despatch of the goods on 3.10.1974 was in order and the appellant should have taken the delivery of the same as per the terms of the contract and since they have failed to comply with taking delivery of the goods, they are liable to pay the difference of amount that the respondent has been subjected to bear with in the resale of the said goods. 25. The point for consideration is, whether in the circumstances of the case, time has been considered to be the essence of the contract. As already remarked, generally though it is the Law that so far as immovable properties are concerned, the presumption is that time is not the essence of the contract unless parties specifically agree to consider time as the essence of the contract and putting the other side on notice. For the sake of convenience, parties might even take a lenient view of try to adjusting order to avoid colossal loss for either of the parties and as such, even in this case, we are able to see a proposal has been given at the earliest possible prices of the commodity have fallen down within the time that the goods have been sent with the delay. But the plaintiff was not ready to concede the same. Likewise, the defendants regarding one of the contracts concerned with Ex.A-29 have also opted to accept if immediately the goods were sent to the specification regarding that particular contract was concerned. But such options could not be construed that the defendants have committed the breach of contract and such of the proposals should only be taken to have come out of a lenient and compromise mind without leading the situation for litigation and hence based on such minor options or proposals given by either of the parties, the legal question whether the time is considered the essence of the contract in the light of the facts and circumstances of the case and evidence made available, cannot be decided. 26. 26. Again, coming to Exs.A-23 and A-25, It is specifically stated under column 6 under the heading ‘delivery ‘as ‘September, 1974’ without leaving the question for any ambiguity. This recital is telling an emphatic to the effect that the delivery should be effected within September, 1974. There is no satisfactory explanation offered on the part of the plaintiff for this stipulation of time and once the time of delivery is fixed, unless both parties further agree not to consider the time as the essence, it should be taken that what has been agreed in black and white persists and parties are bound to act accordingly. Hence, it has to be held that time element has been considered to be the essence of the contract by parties especially in view of the fact that no satisfactory evidence or explanation offered on the part of the plaintiff to the averments that the period stipulated for delivery is only an estimated one and that the understanding between parties was that the plaintiff was not responsible for loss or damage sustained or occasioned by reason of late delivery and that in no case late delivery shall constitute a valid ground for the defendants to reject the payment. Hence what had already been agreed under Exs.A-23 and A-25 persists and holds good. 27. It is also not vehemently opposed or objected to by the plaintiff, the contentions put forth by the defendants to the effect that over the telephone on 1.10.1977 itself, they terminated the contract. Exs.A-28 and A-29 have only come subsequently and while considering the vital aspects of the case regarding the time of contract, unless the plaintiff had arrived at fresh terms or understanding, at least regarding the relaxation of the time, the plaintiff cannot send the goods after the expiry of the stipulated time without renewal of the contract regarding the time of delivery and there is nothing to show that plaintiff renewed the time of delivery over and beyond September, 1974 or even had the understanding with the party that the goods if sent beyond the agreed period could also be accepted by the defendants. None of these two had been done and in such event, regarding accepting or taking delivery of the goods sent out of time the option is with the buyer and hence he rejects or refuses to take delivery on ground that the goods have been despatched after the expiry of the stipulated time. No condition could be laid on the purchaser that whatever be the time that the seller sends the goods, the purchaser should accept taking advantage of the fact that the payment had been effected by the buyer already. Hence, since time is hereby held the essence of the contract. Point No.2 is decided in favour of the appellants. Concluding that so far as the contracts entered into in this case are concerned, the time has been considered the essence of the contract. 28. Point No.3:Once the second point is answered in the affirmative, considering the time as the essence of the contract, automatically it could be taken for granted that the plaintiff had no business to despatch the goods on 3.10.1974 and such despatch of consignment could only be taken to have been effected on his own accord without bidding the other party since the privity of contract entered into in between the parties gets snapped by the efflux of time in the present case with the end of September, 1974, Needless to point out that the defendants were not bound to accept the goods sent by the plaintiff after 3.10.1974 and whatever loss or inconvenience that has occurred to the plaintiff, had occurred on his own accord, for which the defendants could not be blamed and hence they cannot be made liable to compensate any loss much less with interest that has said to have occurred to the plaintiff on his independent act, done away from the purview of the contract. Hence, this point is answered deciding that the lower court is in error concluding that the plaintiff is entitled for damages and this point is answered in favour of the appellants. 29. Hence, this point is answered deciding that the lower court is in error concluding that the plaintiff is entitled for damages and this point is answered in favour of the appellants. 29. Point No.4:In view of the findings on points No.2 and 3, the plaintiff is not entitled to claim damages much less with interest as he has done in the suit nor is it incumbent on the part of the defendants or are they bound to compensate any loss or damage that has occurred to the plaintiff on account of the despatch of the goods not taken delivery of by the defendants. 30. In result, the above appeal suit is allowed setting aside the judgment and decree dated 30.1.1980 made in O.S.No.127 of 1976 by the Court of Additional Subordinate Judge, Tuticorin. 31. However, in the circumstances of the case, there shall be no order as to costs.