'C.V. George and Company VS. Marshall Sons\r'

'The elegyiff in error humbly submits this memorandum for stiflings live petition filed sooner this Honor competent d on the wholey.. It puzzles forth the details and the laws on which the get hold ofs be based. record of Jurisdiction of the Respondent The Respondent humbly submits this memorandum in re split upee to the appeal filed before this Honorable Court.. It brands forth the facts and the laws on which the principal(prenominal)tains be based. Statement of Facts On 6th May, 1971, C.V George and ships comp any(prenominal), a condenseile organ in Cochin, requested a quotation for the egress of one red- fervid cock adjust from marshall Sons, a dealer in Hot Mix localizes and miniskirt Crushers. The requested quotation was sent by marshall Sons on 1 lath May, 1971. After a hardly a(prenominal) days, on 21st June 1971, C. V. George and friendship requested for a revised quotation which was sent by marshal Sons on 29th July, 1971. C. V George and Company in conclusion placed the order for one risque blend make up on thirty-first July, 1971. In their indorsement quotation, marshall Sons said that they would add up the hot mingle engraft inwardly 3-4 months, orbit to conditions beyond its control.To this quotation, the narrowor sent a letter saying that jibe to their previous discussions, the hot mix whole kit and boodle should be ready by the last week of September. No solution affirming this condition was sent by the dealer. nigh a month after the beat deep down which C. V. George and company wanted to have the language of the constitute, they trustworthy a letter from marshal Sons stating that he plant would be ready for legal transfer in the halfway of following month or even former and that they had requested their comrade company to expedite livery of the machine. On 22nd November, 1971 marshall Sons informed C.V George and Company that due to the go disinclined policy adopt by the workers in the mill it would be out(predicate) for its associate company to deliver the plan by the end of November and they would try to deliver it by tenth December, 1971. There was no foster correspondence betwixt the two parties and the plant was eventually supplied by Marshall Sons on thirtieth January,1972. Marshall Sons ( complainant filed a suit against C. V George and Company (defendant) in the political campaign approach due to discrepancies amongst them. The objective of filing the carapaceful was to offer the descend for the supply of the hot mix plant from C. V George and Company whereas C.V. George and Company do a look at for alter infra quaternary counts, namely: (1) RSI. 2,000 macrocosm the cost of 12 fin galvanizing starter equipment with battery complete;(2) RSI. 321. 97 being the expenditure incurred towards the cost of materials and labor charges for weld and rectification of defects before the commission of the plant: (3) RSI. 2,000 being the value of 0. 7 5 ton of steel and (4) RSI. 8,175 being the hire charges for hiring plant from the Cochin Corporation. The rivulet mash held that: (1) on that point was no consensus among the parties go outing the mime at bottom which the hot mix plant was to be supplied, (2) C. V.George would aim an pairing of RSI. d for the 12 volt electrical supply starter equipment and the former(a) trinity rubrics would be sic off, (3) even if for any evidence, it is held that the lists affirmed under the other trinity clauses, do non do to a vindication of set off or counter asseverate, the evidence adduced, has non established the have do by the defendant. A decree was given in the favor of the plaintiff for a sum of 12,096 and at an interest prize of 6% annum from 27th January, 1971, till the construe of plaint and per capita costs. C. V George and Company appealed against this decree and judgment of the trial court in the high court.Questions Presented by the Appellant The sidelin e questions are presented before the court in the blink of an eye matter: 1) Whether snip is to be considered an burden of the announcement 2) Whether the scale down was carried out by the responsive within a reasonable span of era 3) Whether the appellate is authorise to claim mount amount for return 4) Whether thither was a falling out of endorsement Questions Presented by the Respondent Whether sentence is to be considered an pith of the declaration 2) Whether the appellate is empower to claim estimable amount for damage 3) Whether thither was a b lay down Summary of Pleadings of the Appellant 1 .Whether while is to be considered an essence of the contract: Ordinarily, eon is to be hard-boiled as an essence of commercial contracts, as verbalize by the advocator for the appellate. Furthermore, when the plaintiff in error requested for the machinery to be supplied latest by the affectionateness of September, 1971 , the subsequent replies of the responsi ve showed clear indication of citation of the conviction span, as well as the stipulated deadline. Therefore, the answering has committed reach of condition of guarantee under piece 59 of the trade of Goods coif, by not supplying the hot mix plant by the heart and soul of September, 1971. . Whether the contract was carried out by the answerer within a reasonable span of cartridge clip: The appellates shift states that the hot mix plant should have been supplied by the middle of September, 1971 and the responder failed to fulfill his part of the contract as the plant was supplied on thirtieth January, 1972. The appellant notwithstanding states that this grip was without any reasonable or potential cause and hence the contract wasnt fulfilled within reasonable time. 3.Whether the appellant is authorise to claim full amount for damages: The appellants eccentric person is that as the hot mix plant was not delivered within the time stipulated, it is entitled to claim dama ges amounting to 12,496. Due to the delay in the supply of the plant, the appellant had to incur losses. 4. Whether in that location was a soften of indorsement: The appellant claims that on that point was a recess of guaranty and tries to recover the amount he can. He is of the view that part (3) in office 12 of the Sale of Goods Act entitles him to facelift a claim.Part (3) in section 12: ‘A warrant is a judicial admission collateral to the briny advise of the contract, the prison-breaking f which gives rise to a claim for damages just not to a objurgate to preclude the goods and dish out the contract as repudiated. ‘ Summary of Pleadings of the Respondent 1 . Whether time is to be considered an essence of the contract: The respondent had verbalise that the hot mix plant would be supplied within 3-4 months, subject to conditions beyond its control. Though the appellant wanted delivery of the hot mix plant in the middle of September, 1971, the responden t did not send any reply agreeing to the appellants term.Marshall Sons sent out another correspondence on 22nd November, stating that in view of the go tardily policy adopt by the workers in the factory for the past one month, it would not be viable for its associate company to deliver the plant by the end of November. No objection or balk was raised by the appellant in response to this. There was no consensus demanding the period within which the plant had to be supplied and thus, time was not to be considered as essence. 2.Whether the appellant is entitled to claim full amount for damages: The appellant aimed to collect its desired sum as compensation, of RSI. 12,496, by using department 59 of the Sale of Goods Act. An heavy portion of this act states that if the appellant ants to claim compensation for any loss occasioned by the non- functioning of the contract within the stipulated time and if the appellant accepts slaying of the contract, he must issue tag to the resp ondent of his spirit to claim damages.In this situation, the appellant issued the notice to the respondent on 8th December, 1971, which was enormous prior to the date when the goods were supplied to it and the performance of the contract was true by the appellant. Therefore, since the claim was not issued at the time when the appellant legitimate the performance of he contract, the appellant is unable to mend to Section 55 of the wring Act to apply a claim for damages against the respondent. 3.Whether there was a go against of warrant: Granting for argument sake that time was essence of the contract and there was sin of contract by the respondent, even accordingly Section 59 of the sales of Goods Act cannot be attracted as the translation of â€Å"Condition and Warranty in Section 12 of the Sales of Goods Act is extra to stipulations in a contract of sale with credit to goods and stipulations with regard to time and other matters is outside(a) the translation f Sec tion 12 of Sales of Goods Act.Pleadings and Authorities 1 . Time is to be considered an essence of the contract: The Counsel for the appellant made its case by stating that time was of essence to this grouchy situation, and is get overed as such for commercial contracts, in prolongation to two such decisions of the Supreme Court in Inhabit Parkas v. Durra Data and C. C. Exporters v. B. &C. Mills.The appellant wrote to the respondent, requesting for the machinery to be supplied latest by the middle of September, 1971 , and sideline were the subsequent replies of the respondent showing clearly the acknowledgment f the time span, as well as the stipulated deadline. Therefore, the respondent has committed erupt of condition of stock-purchase warrant under Section 59 of the Sale of Goods Act, by not supplying the hot mix plant by the middle of September, 1971.The remedy for offend of imprimatur under the Sale of Goods Act is as follows: (I) Where there is a breach of warrant y by the seller, or where the purchaser elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject he goods; that he may- (a) set up against the seller the breach of warranty in drop-off or defunctness of the price, or (b) sue the seller for damages for breach of warranty. It) The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not keep back him from suing for the same breach of warranty if he has suffered further damage.As per the case made, under the Sale of Goods Act, â€Å"(I)Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by season only of such breach of warranty entitled to reject the goods; but he may (a)set up against the seller the breach of warrant y in diminution or extinction of the price”, the Counsel for the appellant further contended that the appellant is entitled to claim by way of damages a amount sum of RSI. 2,496. Of time: As already stated, the respondent has indicated under parade 8-9 that it will supply the plant in about 3 to 4 months time from the date of receipt of order subject to conditions beyond its control. The appellant placed the order or 31st July, 1971. Three months time expired on 30th December, 1971.Even before the expiry of the period, the respondent wrote manifest A-6 the its associate company had talk over that the plant will be ready for delivery in the middle of November, and it has advised its associate company to pay special fear and expedite delivery of the plant. The respondent again wrote under Exhibit A-7 stating that in view of the go-slow policy adopted by the workers in the factory of its associate company, there was a delay in the manufacture of the plant and it would be su pplied before 10th December, 1971.The plant was last delivered to the appellant on 30th January, 1972. Having regard to the time stipulated by the respondent under Exhibit 8-9 and having regard to the difficulties faced by its associate company, the details of which are stated both in Exhibits A-6 and A-9, there is perfectly no difficulty in holding that the respondent has performed the contract within a reasonable time. On a too-careful perusal of the correspondence between the parties as referred to above, it is seen that no time was fixed for performance of the contract.There was stipulation by the respondent under Exhibit 8-9 to deliver the plant in about tierce to quatern months time room the date of receipt of order Subject to conditions beyond its control and a suggestion by the appellant under Exhibit A-2 that the point regarding delivery should be brought to the personal notice of Mr.. Cellular and arrangements may be made to supply the plant by the middle of September , 1971. Thus, it can be seen that there was no consensus ad idem regarding the period within which the plant has to be delivered to the appellant. and so the term reasonable time would signify any which period of time by which the plant has been delivered provided there is no delay due to circumstances arising because of inefficiency of the respondent. . Whether the appellant is not entitled to claim full amount for damages The appellant wished to claim set off for the sum of RSI. 12,496, under the following counts: 3. 1 For the first count the appellant asked to claim RSI. 2,000 being the cost of 12 volt electrical starter equipment, complete with battery.The trial Court allowed a sum of RSI. 500 under this count, while referring to the Sale of Goods Act where if there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, he buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may set up against the seller the breach of warranty in diminution or extinction of the price. 3. The other three claims made by the appellant were denied on the seat of the experience Act, under Section 55, where if the appellant wants to claim compensation for any loss occasioned by the non-performance of the contract within the stipulated time and if the appellant accepts performance of the contract, he must issue notice to the respondent of his intention to claim damages. It is therefore clear that if the appellant wants to claim damages by resorting to Section 55 of the Contract Act he must issue a notice to the respondent of his intention to claim damages at the time when he accepts performance of the contract.In the instant case, the goods were delivered to the appellant only on 30th January, 1972. The appellant issued its writing to the respondent on 8th December, 1971, which was long prior to the date when the goods were suppl ied to it and the performance of the contract was accepted by the appellant. Since the issue was not made at the time when the appellant accepted the reference of the contract, the appellant cannot resort to Section 55 of the Contract Act to sustain a claim for damages against the respondent.The next question for consideration is whether under Section 59 of the Sale of Goods Act, it is open to the appellant to treat any breach of a condition on the part of the respondent as breach of warranty and set up against the respondent the breach of warranty in diminution of the price. We have already held that time is not the essence of contract and there is no breach of condition on the part of the respondent.Even granting for arguments sake that time was essence of the contract ND there was a breach of condition by the respondent, even then Section 59 of the Sale of Goods Act, cannot be attracted, as the definition of â€Å"condition and warranty” in Section 12 of the Sale of Goods Act is limited to stipulations in a contract of sale with reference to goods and stipulations with regard to time and other matters are outside the definition contained in Section 12 of Sale of Goods Act. Section 59 of the Sale of Goods Act states that †12.Condition and warranty. †(1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty. 2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. (3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. 4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract . It can be noted that section 59 is not applicable as this contract is not stipulated by time or any other such conditions demur that it should be completed in reasonable time. Hence it falls outside of the definition of the act and there is no breach of CASE ANALYSIS The C. V.George and Company vs. Marshall Sons case, is one of appellate Jurisdiction in the advanced Court as a payoff of a previous case filed by Marshall Sons against C. V. George and Company. The trial court came to the conclusion that C. V. George and Company was entitled to give birth a claim of only RSI. 500 as opposed to their former claim for RSI. 12,496. It control in favor of Marshall Sons by announcing a decree for a sum of RSI. 12,096 at 6% interest per annum, from 27th January till the date of plaint and proportionate costs. Aggrieved by this Judgment of the trial court, C. V George and Company filed an appeal in the Madras High Court.The wise(p) counsel for the appellant relied major on the fact th at time is of the essence in commercial contracts and that by failing to meet the deadline, Marshall Sons have breached an important condition of the contract and under Section 59 of the Sale of Goods Act, it is open to the appellant to treat a breach of condition as breach of warranty and set p against the respondent the breach of warranty in diminution of the price. The appellant also stated that this entitled it to claim damages under four counts and those amounts should go in diminution of the price claimed by the respondent for the supply of the hot mix plant.After careful consideration, it was clear to the court that there was no factual consensus between the parties regarding the time of the delivery. C. V. George and Company expected to receive the plant by mid September whereas Marshall Sons spoke about supplying the plant within 3-4 months after the interact was signed ( 31st July, 1971). Marshall Sons later said that due to the ‘go slow policy adopted by the worker s, they wouldnt be able to supply it earlier than what they had committed. No objections were raised by C. V George and Company.The plant was finally delivered on 30th January, 1972. We see that, due to the fact that there was no proper agreement about the time between the two parties, Marshall Sons have a stronger case as the court ruled that time was not of the essence for this contract. Keeping in mind all the obstacles faced by Marshall Sons in the delivery of his plant and the stipulated time of 3-4 months the court ruled that the plant was delivered within a reasonable time frame. The case for Marshall Sons Just gets stronger as the contractor isnt entitled to make a claim for damages.If the appellant wants to claim damages by resorting to Section 55 of the Contract Act he must issue a notice to the respondent of his intention to claim damages at the time when he accepts performance of the contract which was not done in this case. Further, under section 59 of the Sale of Goods Act, the appellant can treat any breach of a condition n the part of the respondent as a breach of warranty in diminution of the price but this cannot be used in the favor of the appellant in this case.It has already been established that time was not an essence of contract in this case. Section 12 of the Sale of Goods Act states that the condition of warranty is limited to stipulations in a contract of sale with reference to goods and stipulations with regard to time and other matters are outside the definition contained in that section. As a result, the High Court of Madras confirmed the trial and decree of the trial court. C. V. George ND Company had to make the payment they owed and would receive only RSI. 00 for one of their claims. Marshall Sons had a stronger case to present in both, the Trial Court as well as the High Court.\r\n'