This R.SA. Arises from the judgment and decree dated 26-9-1966 of the 'learned District Judge, Lahore, whereby the rival appeals brought by both the parties were dismissed. While the plaintiff Messrs United Paint House challenged the decision of the lower appellate Court in the second appeal, now under consideration, the respondent-Department accepted the same as final and did not seek further remedy of either the second appeal or the Revision.
2. In pursuance of a contract dated 5-10-1959 the appellant-plaintiff allegedly supplied certain quantities of paints and distempers to the defendant-- Department, they accepted the same, issued certificates to the effect that those were in good order; consequently the appellant submitted bills for payment of Rs. 23,792.22 as cost thereof; the respondent delayed payment and some six months after the delivery of the items, informed the appellant that those were substandard. They allegedly asked the appellants to lift them from their premises whereupon the latter offered to get them examined through a Chemist authorised by their principal, but the respondents statingly prevaricated, and lastly refused to pay them the amount.
3. The suit was resisted primarily on the ground that a large quantity of the paint etc. Was defective and of bad quality. They pleaded that they were not liable to pay for such goods as did not conform to the stipulated quality.
4. Appropriate issues arising out of these pleadings were framed by the trial Court which partly decreed the suit to the extent of Rs. 2,538.50 and dismissed it in regard to the remaining claim. Both the parties appealed from the decree and as already pointed out above, the learned District Judge dismissed both the appeals.
5. The concurrent findings were (i) that the goods were received on behalf of the respondent- Department by an authorised person in the shape of Mistri Muhammad Akbar who issued a number of receipts on acceptance of delivery thereof, and (ii) that a large quantity of the goods was not of specified quality and, therefore, the respondent-Department was right in refusing the appellant's claim. The Department did not prefer second appeal and, as a consequence was bound by the finding that Mistri Muhammad Akbar was their authorised Agent to accept delivery of the goods. The crucial question, however, was whether the Department could urge in law that the goods were not of the specified quality.
6. Although in the written statement the respondent pleaded that "the material supplied was of bad quality and of different shades than those mentioned in the order placed ....", yet the order Exh.
P.1 itself does not appear to have contained any specifications. It was in the shape of a letter, very brief in the text, without indicating if the goods were being purchased either by description or by sample. Only four items, namely:
(1) Distemper Light cream 100 Cwt.
(2) Black Japan.
40. Gln.
(3) Distempering white 100 Cwt.
(4) Light grean. 50 Gln. were sought to be supplied, of course, as per the quantity mentioned against each item. Thus, only the colours were specified and not the make, nor the mark, nor the constituents nor any other particulars touching upon its quality. In the absence of any such condition being laid down in the contract itself, it was not permissible for the respondent-Department to subsequently claim that the good: were either "bad" or were of "different colours". The difference in colour could hardly present any difficulty as it could be conveniently changed if the respondent had taken objection in time. It is on the record that the appellant offered to satisfy the respondents on this count, but the offer was not availed. Even in regard to the quality of the goods, the appellant offered to get it examined through expert, but the response on the part of the respondent was poor as they insisted for taking away the goods without going into any deeper examination by an, expert on the point.
There was no provision in the contract that the goods shall acceptable only if some specified officer of the respondent-Department was satisfied as to their quality. Those were in fact accepted by their agent Akbar Ali whose acceptance as per rule laid down in Fazal Illahi v. East Indian Railway Company (19 A.L.J. 654), Persram Bulchand v. Jodhpur Bikaneer Railway Co. (134 I.C. 1931) and Partab Narain v. The Jute Mills through Behari Lal and Kunj Behari Lal (25 Law Journal 724) was rightly said to be rather final. The plea that Mistri Akbar Ali had no experience or skill to examine such a sophisticated product as distemper or---paint, would not be availing--especially when he had been committing in writing on Receipts Exhs. P.2, P.3 and P.4 etc. That those were "in good order and condition". Section 187 of the Contract Act provides room for inferring from the circumstances of a given case that an agent might have an implied authority on behalf of his principal. Mistri Akbar Ali in this case received the goods and issued the receipts giving an impression that the goods were in perfect order. These were the circumstances of the case wherefrom the appellant A could reasonably infer that he had implied authority to do so. His acts would, therefore, bind the respondents. The above-mentioned cases also lent support to this view and the principal could not subsequently turn round to say that the agent, did not possess the necessary skill. Care and caution demanded that a reservation should have been made in the contract for an expert's examination of the goods. Its absence would imply that the typical agent for the respondent- Department had the necessary authority in that behalf.
7.In fact the point of the agent acting on behalf of the respondents recedes' into a secondary position. The contract being silent as to specification of the goods, the matter could be decided only by applying section 16 of the Sale of Goods Act, 1930. It speaks of implied conditions as to quality and fitness of goods. Counsel for the respondent Department conceded at the Bar that the Ii goods were for all purposes being purchased under patent. Proviso to subsection (1) of Section 16, ibid envisages that in the case of sale of articles under a patent or trade name, there was no implied condition as to their fitness for any particular purpose. Likewise proviso to subsection (2) thereof lays down that there would be no implied conditions as regards the defects if the buyer had examined the goods and those defects ought to have been revealed. Here the so --called defects were reported six months later though the receipts P.2, P.3 and P.4 etc. Tendered to show that those were in perfect order at the time of delivery. The sale being not by description or sample, the case was essentially one of implied conditions or warranties. Under section 13 of the aforesaid Act, when a buyer accepted the goods or a part thereof, the breach of any condition cannot be C treated as a ground for rejecting the goods and treating the contract as repudiated, unless of course, there was an express or implied term to that effect. In this case the respondent- Department accepted the goods and indeed made payment for a part thereof. It cannot be permitted to repudiate the contract or even to reject the remaining goods.
8. Reliance was placed on Abdul Aziz and others v. Masoom Ali and others (AIR 1914 Allahabad 22), Messrs Fairland Export Syndicate v. Messrs Bengal Oil Mills Ltd., Karachi (PLD 1970 Karachi 125) and Bengal Oil Mills Ltd. v. Hussain Company, Karachi (1980 CLC 1153) for the view that Mistri Akbar Ali was not an agent competent to express in regard to the quality or fitness of the goods and that his conduct in issuing receipts etc. Did not bind the Department. The contention is not much relevant as it turned to be a case where in terms of section 16 ibid there was no implied condition that the goods would be fit for any purpose.
9. As a result, the R.SA. Is allowed, the impugned judgment and decree are set aside and instead the appellant's suit is decreed with costs throughout.