' ZAFFAR HUSSAIN MIRZA, J.-This Letters Patent Appeal seeks to challenge the judgment dated 23.1- 1967, passed by a learned Single Judge of this Court on the Original Side in Suit No. 151 of 1962, whereby the suit filed by the appellant was dismissed.
2. The facts forming the background of this appeal are that a contract dated 20-4-1957 (Exh. 6) was executed between the appellant and the first respondent, for the sale of Rayon Bona fide Rents, to be imported from Japan. It may be stated that the rest of the respondents were impleaded as parties as they are said to be the partners of the firm which is the first respondent.
The contracted goods arrived at Chittagong through s.s. Warora in July 1957. The case of the appellant is that the respondent had to bear all the expenses that they were to give ex-go down delivery of the goods. The goods were delivered to the appellant through delivery order dated 7-12- 1957 (Exh. 7) but in the meantime as the goods remained at the port without being cleared demurrage charges to the extent of Rs. 6,85S-8-0 accumulated which were paid by the appellant.
It is the case of the appellant that according to the contract the respondent had to pay all the expenses including the demurrage charges. But in spite of several reminders and requests to them to clear the goods in time the respondents had failed to do so. In the result, it is alleged the appellants were constrained to make all necessary arrangements to obtain the documents from the respondents and clear the goods after payment of the demurrage charges. As the respondents declined to pay the demurrage amount the appellant brought a suit for recovery of Rs. 6,858.50 (Suit No. 611 of 1957) on 19-3-1959 in the Court of First Class Sub-Judge, Karachi, which was eventually withdrawn and transferred to the Original Side of this Court and registered as Suit No. 151 of 1962. The respondents resisted the suit and their case was that the contract being on the C & F basis the clearance of the goods was the responsibility of the appellant and all the expenses in that behalf including the demurrage charges was the responsibility of the latter. They contended that the appellant neglected to pay the document amount when the documents were received and call was made to him. They, however, alleged that after about 3 months the appellant requested the respondents to be accommodated and to get the goods cleared on his behalf, promising to pay the document amount as well as all the expenses incidental to the clearance of the goods. Accordingly, they instructed their clearing agents to clear the goods. Since the demurrage was incidental to the clearance they contended that the appellant knowingly paid the sum alongwith the document amount without any objection.
3. It may be stated that the parties to this appeal had also entered into a similar contract on the same date which was the subject-matter of Suit No. 69 of 1960 on the Original Side of this Court out of which a Letters Patent Appeal No. 52 of 1967 has arisen, which has been heard along with the present appeal and is being disposed of by a separate judgment. The evidence of the appellant was recorded in Suit No. 151 of 1962 out of which the present appeal arises and the evidence of respondent's only witness Moosa Bhai was recorded in Suit No. 69 of 1960. With the consent of parties the evidence of these two witnesses was read in both the suits. Learned Single Judge after hearing the parties dismissed the suit, as stated above placing reliance on the oral evidence of the respondent's General Manager Moosa Bhai to the effect that on the arrival of the goods in July 1957 he had personally informed the appellant about the arrival of the goods and demanded payment in respect of the documents. The learned Single Judge found that the contract was a C & F contract, and therefore, on accepting delivery through delivery order along with the other documents by paying the demurrage charges the appellant's claim for demurrage charges was unsustainable. For arriving at the finding the learned Single Judge based his conclusion on Exh. 12 which is the indemnity bond admittedly executed between the parties on 29-11-1957.
' Before us Mr. Jan Mohammad Daud, learned counsel for the appellant has reiterated his contention that in terms of the contract the respondents had to clear the goods from the customs and on their failure to do so in time, resulting in accumulation of demurrage, it was the respondents who were liable for such amount. He criticized the reliance placed by the learned Single Judge on the oral assertion of respondent's General Manager Moosa Bhai. On the other hand, Mr. Z. C. Valliani, learned counsel appearing for the respondent contended that the fact that the appellant paid the demurrage at the time of clearance of the goods, to the respondent's bankers shows, that he was liable for the said amount. He argued that this operated as an estoppel against the appellant. He referred to the indemnity bond (Exh. 12) and the nature of the contract which according to him was a C & F contract which implied that the responsibility for all expenses for actual clearance was that of the appellant. He further contended that demurrage had accumulated on account of default on the part of the appellant who failed to pay the contractual amount until 30-11-1957. Now the nature of the contract (Exh. 6) in this case is very material. If the contract was a C & F contract, obviously the ordinary incidents of such a contract are that it is an agreement to sell the goods at an exclusive price covering the costs of goods and freight. The essential feature of such a contract is that a seller having shipped or bought afloat the goods in accordance with the contract, fulfils his part of the bargain by tendering to the buyer the proper shipping documents; if he does this he is not in breach even though the goods have been lost before such tender. The case of the appellant is that the contract stipulated delivery by the respondent ex-godown, which implies that the actual goods had to be delivered. If this is proved to be so the contract could A not be C & F contract. In such case, it would obviously be the obligation of the seller, to establish his willingness and readiness to deliver the goods and to have cleared the goods without allowing the demurrage charges to accrue. However, if the contract in question is held to be C & F contract he was merely required to tender the shipping documents to the buyer and any negligence on the part of the buyer to accept the documents in time and obtain the clearance would obviously be his responsibility as to the demurrage incurred thereby.
5. The contract in this case is in writing (Exh. 6) which on the face of it indicates that it was on C & F basis as is specifically stipulated therein. Accordingly, the oral evidence on this point will not be ordinarily admissible for interpreting the written terms of the contract. However, in the events that happened, on 29-11-1957, parties to the contract executed an indemnity bond (Exh. 12) which materially altered the terms with regard to the delivery of goods. The relevant conditions of this bond are as follows:- "(1) That the Indemnified shall immediately file a Declaration Form as has been tiled in, seen, and approved of by the Indemnifier in respect of the goods mentioned above, with the Customs Authorities at Chittagong and take any other steps that may be required, to enable the Indemnifier to clear the same.
(2) That if at any time hereafter the customs authorities claim any addtional amount of customs duty in respect of the said goods and levy any penalty, for any reasons whatsoever under the provisions of the Sea Customs Act and the Valuation Imports Rules, 1957, the same shall immediately be paid on demand by the Indemnified, whether the same have been paid by them or not, in such a manner that the Indemnifier shall keep the Indemnified harmless and secure against any payment that may be required to be made in respect of the above-mentioned goods in such a manner that the Indemnified shall not be exposed to any loss whatsoever."
' The recitals of this document show that the goods were detained by the customs at Chittagong, as the importers (respondents were required to fill in and file the prescribed declaration Forms with the customs under the Valuation Import Rules, 1957 which was not filed by them as a result of which the goods could not be cleared. Accordingly, there can be no doubt that before the date of the indemnify bond namely 29-11-1957, the shipping documents were incomplete for an effective delivery of goods. Therefore, even if the contract was a C & F contract, the respondent had not discharged his obligation under such a contract to effectively tender the necessary documents in performance of the contract. Benjamin, in his book on the Sale of Goods, 1974 Edition, at page 794 in para. 1538, while discussing the duties of the seller under the C & F contract says as under:- "The contract of sale may require the seller to tender additional documents, such as certificate of origin, quality or inspection or licence or permit required in connection with the shipment. Such requirement could also arise from custom or usage in the relevant trade."
' As obviously the declaration under the aforesaid rules was necessary for the release of goods by the customs such a declaration would be a necessary document if not filed before the customs authorities directly, to be a document tendered along with the rest of the shipping documents. This clinches the whole issue. And even if the evidence of respondent's witness Moosa Bhai is accepted as true in regard to the respondent having orally informed the appellant about the arrival of goods, it will have to be held that the goods were not in a deliverable state nor the documents were complete for tender at that stage. The demurrage charges became due on account of the delay in having the goods cleared from the customs and the fact that the delay occurred due to the non- filing of the necessary declaration under the Valua-tion Rules proves that the appellant was not responsible for accrual of demurrage.
(6) Section 49 of the Sale of Goods Act provides as under:- "When the seller is ready and willing to deliver the goods and requests the buyer to take delivery and the buyer does not within a reasonable time after such request take delivery of the goods he is liable to the seller for any loss occurred by his neglect or refusal to take delivery and also for a reasonable charge for the care and custody of goods. .. . . .
' Provided.................................
' A bare reading of the provision shows that it is the seller's duty to be ready and willing to deliver the goods and request the buyer to take the delivery. In the case of C & F contract the duty of the seller would be fulfilled only when he is in a position to tender all the necessary documents for effective transfer of the right to receive delivery. However, in this case in absence of the necessary declaration, the respondent can not be said to, be in a position to deliver the goods in terms of the above section. The loss occasioned therefore, on account of the demurrage charges wonld normally be the responsibility of the respondent.
7. However, Mr. Valliani, contended that the appellant was estopped from challenging his liability to pay demurrage in view of the fact that he raised no objection at the time he received the delivery order and in fact paid the amount. I do not think that the principle of estoppel is attracted in this case. Apart from that no such plea was specifically raised in the written statement nor any question was put in the cross-examination on the point to the appellant. I am, therefore, of the opinion that the claim for payment of the amount paid towards demurrage by the appellant is justified. In the result I would allow the appeal and set aside the judgment of the learned Single Judge and decree the suit as prayed with costs.
' DORAB PAIEL, J.-I agree.