TMI Blog1967 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... anapathy lyer, for the respondent (in both the appeals). Bachawat, J. The dispute arises out of a contract between the appellants and the respondent entered into on November 13, 1951. The terms of this contract were recorded in writing in the form of a letter written by the respondent to appellant No. 1 and set out below: Messrs. P.S.N.S. Ambalavana Chettiar and Company Ltd., 260, Angappa Naicken Street, Madras. Dear Sirs, We confirm having purchased from you and the Madras Paper Marketing Company, Madras, 500 tons of Russian Newsprint as per the following description :-- About.70 per cent in reels of 34 inches width. 15 per cent in reels of 22 inches width. 15 per cent in reels of 36 inches width. at annas 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts would pay the insurance charge and also interest at 5 per cent per annum on an amount equivalent to the price of the goods calculated at 8 annas per lb. The understanding was that the appellants would within a reasonable time take delivery of the goods bought by them in instalments and the accounts would be finally adjusted on the completion the deliveries. It may be mentioned that appellant No. 2 carried on business under the name and style of Madras Paper Marketing Company. On November 26, 1951, the parties orally agreed that instead of 500 tons the respondent would buy 300 tons of newsprint in reels and that instead of 415 'tons the appellants would buy 300 tons of newsprint in sheets and the terms of the contract dated Novemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to 415 tons of newsprint in sheets was cancelled in November, 1951 and that appellant No. 2 was not a party to this contract. The appellants also denied the factum and validity of the resale. The two suits were tried by Rajagopala Ayyangar, J. He dismissed C.S. No. 175 of 1952 and decreed C.S. No. 262 of 1952. From these two decrees, the appellants filed two appeals in the High Court of Madras. A Division Bench of the High Court dismissed the two appeals. The present appeals have been filed on certificates granted by the High Court. The two Courts concurrently found that (1) appellant No. was a party to the contract of purchase of 415 tons of newsprint in sheets, (2) on November 26, 1951 the parties orally agreed that instead o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had the right to resell the goods under s. 54(2) of the Sale of Goods Act, 1930. The seller can claim as damages the difference between the contract price and the amount realised on resale of the goods where he has the right of resale under s. 54(2) of the Sale of Goods Act. The statutory power of resale under s. 54(2) arises if the property in the goods has passed to the buyer subject to the lien of the unpaid seller. Where the property in the goods has not passed to the buyer, the seller has no right of resale under s. 54(2). The question is whether the property in the 300 tons of newsprint in sheets had passed to the appellants before the resale. On November 13, 1951, the respondent agreed to sell to the appellants tile stock of 415 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result of the variation of the contract was to annul the passing of property in the goods. The effect of the bargain on November 26, 1951 was that the respondent would sell and deliver to the appellants any 300 tons out of the larger stock of 415 tons. As from November 26, 1951, the property in the entire stock of 415 tons belonged to the respondent. The parties did not intend that as from November 26, 1951 the property in any individual portion of the stock of 415 tons would remain vested in the appellants. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods no property the goods is transferred to the buyer unless and until the goods are ascertained. It is a condition precede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to s. 73 of the Indian Contract Act. In the present case, no time was fixed in the contract for acceptance of the-goods. On March 29, 1952, the appellants refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29, 1952. Counsel for both parties requested us that instead of remanding the matter we should assess the damages on this basis and finally dispose of the matter. We have gone through the materials on the record and with the assistance of counsel, we assess the market price of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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