1. WAHEEDUDDIN AHMED J. -- This is an appeal by leave against the judgment of the West Pakistan High Court. Karachi in Second Appeal No. 86 of 1969 dated 21-3-69. By this judgment, a Division Bench of the West Pakistan --High Court dismissed the appeal in limine.
2. Brief facts leading to this appeal are that by Contract No. K.R.Y. 62/213 dated 8/9-5-62 the parties entered into a contract through one Abdullah Omar, broker, for the sale, to the respondent, of 4400 lbs (2000 kgs) of rayon yarn, of the description of 75/0 bright on cones of the quality 'Beauty' or Three Golden Horses" brand of Japan origin at 52,698 (penny) per lb C. & F. Karachi totalling -- Steg. 968-3-0. The terms and conditions of the contract included shipment in May, 1962. The good, as and when received, were to be taken delivery immediately on notification to that effect to the buyer, and -lull payment bad to be made in cash, before delivery. The respondent paid to the appellant advance deposit by two cheques dated 9-5-62 and 9-6-62 for Re. 3,500 and Rs. 1,500 respectively, totaling Rs. 5,000 drawn on his account in the United Bank Limited, Saleh Mohammad Street. Karachi.
3. It appears that the goods arrived from Japan by s. s. Panama on 21-6-62. The appellant took all the steps to clear the goods by paying custom duty, sales tax, insurance premium, clearing charges etc on 26-6-62. The goods arrived en his godown on 28-6-62. On the same day, the appellant both orally and in writing informed the respondent of the arrival of the goods and the details of expenses incurred and asked him to take delivery of the goods. It is alleged that on 28-6-62 the appellant sent letter dated 28-6-62 (Exh. 6) to the same effect by hand, to the respondent who refused to receive it. The appellant tried to contact the respondent through the broker by (Exh. 37) but the respondent did not pay any heed to it. Thereupon the appellant sent another copy of his letter (Exh. 6) by Registered Act. Due post to the respondent, delivered to him on 30-6-62 requesting to take the delivery of the goods upto 34-6-62 by 2 p. m. On payment of cash. In reply, the respondent, by letter dated 30-6-62 (Exh. 7) asked for the details of expenses and requested that the delivery of the goods be made by 10-7-62. The appellant, by letter dated 2-7-62, received by the respondent on 4-7-62, asked the respondent to take the delivery of the goods immediately, and informed him that the statement of expenses had already been given to him orally. The respondent by letter dated 4-7-62 (Exh. 9) asked again for the details of expenses and also requested for inspection of the goods. The appellant's Advocate by registered letter dated 7-7-62 (Exh. 10), received by respondent on 7-9-62, enclosed detailed statement of accounts (Exh. 10-A) and offered inspection and delivery of the goods. The allegation of the appellant is that the respondent avoided to take delivery as the market price of the goods was going down and he did not possess requisite funds. The respondent's Advocate, by letter dated 9-7-62 (Exh. 11) addressed to the appellant's advocate, insisted for inspection of the goods. In reply, the appellant's Advocate, by letter dated 11-7-62 (Exh. 12) addressed to the respondent's Advocate, called upon the respondent to inspect the goods on that day upto 6 p m. And on the next day i. e. 12-7-62 from 1 p. m. And to take the delivery of the goods on payment of Rs. 61,241.30. In reply, the respondent's Advocate, by letter dated 12-7-62 (Exh. 13) informed that the time for inspection of goods had passed, and made lame excuses to take delivery of the goods. He did not ask for further time to inspect the goods. The appellant's Advocate, by letter dated 13-7-62 (Exh. 14) informed that the goods will be disposed of at the market rate as per the terms of the contract. Ultimately, on 14-7-62 the appellant disposed of the goods at the prevalent market rate to Messrs Shafqat Brothers of C/300 Cordhands Market, Karachi, through another broker, Abdul Ghaffar (Exh. 32) @ Rs. 13,62 per lb for Re. 60,063.20 at a loss of Rs. 6,477.42 (Exh. 33).
4. Consequently, by letter dated 29-8-62 (Exh. 47) the appellant's Advocate asked the respondent to pay the loss of Rs. 1477.43 after adjusting the advance deposit of Rs. 5,000 and enclosed statement of account (Exh. 47-A). The letter was returned by post with the endorsement that the respondent's office was always found to be closed. It is alleged that the respondent had in the meantime closed his business and office promises, and shifted to some unknown place. As the address of the respondent was not available, a notice was served on the respondent's Advocate but no suit was filed for the recovery of loss amounting to Re. 1,477.42 as the address of be respondent was not known.
5. On 28-8-62, the respondent's Advocate, by letter (Exh. 15) addressed to the appellant, and received by him on 1-9-62, called upon the appellant to deliver the goods under the contract within 3 days of the receipt thereof against the appellant's bill for legitimate, expense, and threatened legal action for the recovery of damages, and expenses. The appellant's Advocate, by registered letter dated 1-9-62 (Exh. 16) addressed to the respondent's Advocate, again stated that the goods were disposed on 14-7-62, and called upon the respondent to pay Re. 1,477.42 with interest at 6 % within one week thereof. The respondent did not reply to this letter for about 11 months. In July, 1963, the respondent's Advocate, by registered letter dated 29-7-63 (Exh. 17) to the appellant, again demanded payment of Re. 5,000 within three days and threatened to take legal action. The appellant's Advocate by registered letter dated 8-8-63. (Exh. 18) to the respondent Advocate, stated that the respondent had committed breach of the contract and failed to take delivery of the goods and as such he was not entitled to the refund of Rs. 5,000 rather the respondent was liable to pay Rs. 1,477.42 with interest at 6 % per annum from 14-7-62 up to the date of payment.
6. In May, 1965, the respondent filed in the Court of the First Civil Judge, Karachi Suit No. 214 of 1965 for judgment and decree for the refund of advance deposit of Re. 5.000. Appellant resisted the suit denying among others the claim for Re. 5,000 and prayed for the dismissal of the suit. The learned Judge on the pleadings of the parties, framed the following issues :
(1) Whether the suit as framed is maintainable in view of the allegation contained in para. 2 of the written statement.
(2) What were the terms of the contract and which of the parties has committed breach of the contract.
(3) Whether the plaintiff is entitled to refund of deposit. . (4) Relief.
7. The learned IX Civil Judge of Karachi subordinate Court who heard the case, came to the conclusion that it was the respondent who was guilty of breach of the contract. In the light of this conclusion he dismissed the suit of the plaintiff with costs. Thereupon, the respondent filed Civil Appeal No. 222 of 1957 and a learned Additional District Judge. By judgment dated 23-11-68, came to the conclusion that the appellant was guilty of the breach of contract, as he was not given a fair opportunity to inspect the goods, nor was supplied with the statement of account, and allowed the Appeal. The appellant challenged this judgment in the High Court in Second Appeal No. 86 of 1969 and a Division Bench by order dated 21-3-69, dismissed it in limine. Thereupon, the petitioner applied for leave to appeal to this Court, and leave was granted to him on 9-1-70.
8. The only question for determination in this appeal is as to who was guilty of the breach of contract and whether reasonable opportunity was given by the appellant to the respondent to Inspect the goods. After going through the evidence produced by the parties namely, P. W. 1 Mohammad Ibrahim, P. W.
2. A. Razzaq and respondent's witnesses D. W. 1 A. Razzaq Faizi, D. W. 2 Abdul Ghaffar and D. W: 3 Rahim Bakhsh Paracha we are of the opinion that the breach in the present case was committed by the respondent.
9. There is ample evidence on the record to show that the ship arrived in Karachi on 21-6-62 and the goods in dispute were cleared from the customs on 26-6-62. This is borne out by the Bill of Entry which was shown to us during the hearing of this appeal from the record of the trial Court. By Exh. 6 dated 98.6-62 the appellant informed the respondent about the arrival of the goods, and asked him to take the delivery of goods by 30-6-62. This letter was received by the respondent on 30-6- 62 and on the same date be replied by Exh.
7. He alleged that the goods were not available in the godown of appellant and were, in fact, under custom examination at the M. I. Yard, and expressed his readiness and the willingness to take delivery of the goods and asked that he should be supplied the details of expenses so that payment and delivery may be arranged. The appellant replied to this letter by Exh. 8 dated 2-7-62 and restated that the goods were lying in his godown since 28-6-62 for which he has got ample documentary proof. As regards the detail of expenses.
10. Be informed the respondent that this has already been shown to him in the presence of Abdullah Umar, broker, and others, and if he still wants to see it again, he is welcomed to come and see it at any time. By this letter, the respondent was called upon to take delivery of the goods within 24 hours. This letter was replied on 4-7-62 by Exh. 9 and the respondent again demanded that he should be supplied with the statement of expenses, and alleged that the delay was from the side of the appellant. He also called upon the appellant to offer inspection of the goods. The matter was then placed in the hand of the advocate of the appellant who sent to the respondent statement of expenses wide latter dated 7-7-62 (Exh. 10-A) and also invited him to inspect the goods, and requested him for taking delivery of the goods immediately. This letter was replied on 9-7-62 by Exh. 11 by the Advocate of the respondent, asking the appellant to offer goods for inspection to his client with reasonable notice in advance, The Advocate of the appellant by letter dated 11-7-62 Exh.
11. 12 offered the goods for inspection on that date upon 6-30 p. m and on 12-7-62 from 11 a. m. To 3 p. m. He also asked the respondent to pay Re. 62,241.30 in cash and take delivery of the goods latest by 112-7-62. This letter was replied on 12-7-42 by Exh. 13 by the respondent's advocate saying that he could not contact his client before 3 p. m. Today and was instructed by him to inform you that your demand of Rs 61,214.30 is without any justification arbitrary and unreasonable. He also informed that the belated details of the expenses sent with the letter dated 7-7-62 revealed startling state of affairs and alleged that the appellant has included several items which the respondent is not bound to pay. He further informed the appellant's Advocate that he received letter dated 11-7-62 at 5-20 p. m. On that day and, therefore, he could not contact his client within an hour's time as he was busy on that day till 2 p. m. And could only contact the respondent at 3 p m. It will be noticed that in this letter the respondent's counsel did not ask for further time to inspect the goods. The appellant's advocate repudiated the above allegations by letter dated 13-7-62 Exh.
12. 14.
13. After going through the correspondence between the parties and on consideration of the oral evidence we are of the view that reasonable opportunity was given to the respondent for inspection of the goods. The statement of expenses and account was also sent to him. In any case even if the time for inspection fixed by the appellant, was not availed of by the respondent, it was open to him to ask the appellant to give him further time for inspection but he failed to do so.
14. According to section 41 of the Sale of Goods Act if the goods are sold to the buyer which had not been previously examined by him, he cannot be deemed to have accepted these unless and until he had a reasonable opportunity to examine the goods to see if these are in conformity with the contract. Subsection (2) of this section says that unless otherwise agreed when the seller tenders delivery of goods to the buyer, he is bound on request to afford the buyer a reasonable opportunity to examine the goods for the purpose of ascertaining whether they are in conformity with the contract.
15. It will thus be seen that under this provision of law, the buyer is entitled on request to provide an opportunity to examine or inspect the goods. In the present case this right was exercised by the respondent and the appellant gave him an opportunity to inspect the goods but he did not utilize it. At any rate, he did not ask for further time to inspect the goods and, therefore, be cannot lay the blame for non-inspection of goods on the appellant. The question whether reasonable opportunity is given for inspection depends on the facts of each case but reasonable opportunity does not mean 'unlimited period'. In the present case, contract was of a commercial nature and in our opinion, giving two days time was sufficient to comply with the provision of section 41 of the Sale of Goods Act. After going through the evidence, it appears to us that the market price was going down and the respondent had no funds to pay, he was, therefore, mating lame excuses. We are satisfied that if he wanted to have inspection of the goods, he could have easily had it. The business premises of the parties were very near to each other and there was no difficulty to contact each other. It is therefore, clear to us that the respondent was guilty of the breach of contract in this case and he cannot place the blame on the appellant in this connection.
16. The respondent also appeared in person and has urged that in the state--ment of expenses, there were certain items which were objectionable. If that was so, he could have withheld the payment of those items, and offered the balance amount to the appellant, and a pressed his readiness to take delivery of the goods, but this was not done. We have examined the objection raised by the respondent in respect of the expenses and we are satisfied that the expenses shown in the statement of account Exh. 10-A were the responsibility of the respondent and he was liable to pay them. No unreasonable amount was claimed by the appellant, and, therefore, the objection of the respondent in this respect its of no consequence.
17. After heating the learned counsel of the appellant and the respondent in person. We are satisfied that the breach in this case was committed by the respondent, and he was not entitled to the refund of Rs. 5,000 from the appellant. The conclusions of the Addl. District Judge and High Court in this respect are based on misreading of evidence We would. Therefore, act aside the order of the High Court and the decree of the Additional District Judge, Karachi, and allow this appeal with costs.