Case: China Cotton Exporters Vs. Beharilal Ramcharan Cottonmills Ltd

default on the part of the supplier or to a circumstance beyond his control.13. Turning now to the facts of the case we find that the defendant had made two contracts with its Italian suppliers - one contract for 200,000 lbs. of cotton for August, 1950, shipment which it is said was later extended to September, 1950; another contract of August 4, 1950, for 300,000 lbs. for November/December, 1950. The defendant had also a contract with the plaintiff company of July 22, 1950, for sale of 40,000 lbs. August shipment- later converted to November/December shipment. In October, 1950, 50,000 lbs. out of the first contract with the Italian supplies arrived; out of this 40,000 was delivered to the plaintiff company in satisfaction of the earlier contract and 10,000 was delivered in satisfaction of this second contract - the contract now in suit. Under the contract for 300,000 lbs. the buyer (the defendant) received 70,000 lbs. of goods. Of this nothing was given to the plaintiff company and so, 40,000 lbs. remained undelivered. The question is had the defendant a contract under which it could, provided the contract was not broken, obtain the goods in time to honour its agreement to sell October/November shipment of goods.14. The learned Attorney-General complains that the courts below totally left out of consideration the sellers (the appellants) earlier contract with Italian suppliers and says that that, at least, was an adequate contract. There would be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.15. We come next to the sellers November/December shipment contract with its Italian suppliers. The courts below have pointed out that under such a contract, the Italian suppliers were entitled to delay shipment till the last day of December. If that be the position the seller would not, on the last day by which the goods under its contract ought to have been supplied viz., December 15, 1950, after adding 15 days under Cl. 7, have any contract under which it would have been entitled to receive goods in sufficient time. The learned Attorney-General has, however, contended that under the contract which the defendant had with its Italian suppliers, the Italian suppliers would be bound to spread the supply over the period, November/December and thus bound to ship 40,000 lbs. at least well before the December, 15.16. The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract. In Bilasiram Thakursidas v. Ezekiel Abraham, ILR 43 Cal 305 : (AIR 1917 Cal 721) (FB) from which the learned counsel sought assistance the term of shipment in the contract was "shipments to be made by steamers during July-December, 1914 - shipment in any month by one or more steamers." This was clearly an instalment contract and on the construction of that contract the court held that the buyer had the right to demand delivery of goods by separate shipments spread over the months from July to December. In Phoenix Mills Ltd. v. Madhavdas Rupchand and Co., 24 Bom LR 142 the question arose whether the plaintiff-sellers had committed a breach by not giving delivery where the terms of delivery were :- "200 bales No. 20s and 20 1/2s Ring October-November, 1913, and 50 bales No. 6 1/2 s Mule yarn as manufactured." It was further mentioned in the contract that the buyers agreed to take delivery of the bales from time to time as they are ready. It was in view of these terms that Mr. Justice Macleod held that "the court can only consider the parties to have intended, when they signed that contract, that delivery should be asked for and given during October-November of two hundred bales, delivery being asked for the reasonable quantities at a time during the period of delivery."17. These decisions are in line with the English law in this matter as stated by Benjamin on Sale, 8th Edition, at p. 724 thus :-"Where the amount of instalments is not specified, the prima facie rule would seem to be that the deliveries should be rateably distributed over the contract period."18. The learned author goes on to say that "if it can be gathered from the terms of the contract or the circumstances that rateable deliveries were not intended, it then becomes a question for the jury whether the tender of or demand for, delivery is a reasonable one."19. Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. We find thus that whatever may have been said earlier in the printed portion of the contract the parties took care, after specifying "October/November, 1950" as the date of shipment to make a definite condition in the remark column, on the important question whether the shipment date was being guaranteed or not and if so, to whatas we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word "therefore" its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment October/November, 1950, wasdo not consider this explanation of the use of "therefore" acceptable. If the parties intended that quite apart from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention - an intention contrary to the usual intention in commercial contracts of treating time as the essence of the contract - would be to say : "This contract is subject to import licence and the shipment date is not guaranteed.As we have already mentioned, the remarks column was filled in manuscript and consequently even if the terms in print by themselves might have justified a conclusion that the parties intended that the shipment date was not guaranteed, the intention expressed in the manuscript should prevail. We are not satisfied however that the terms in print would justify any such conclusion.The provisions of Cls. 7 and 9 do not affect the question.10. We are, therefore, of opinion that the courts below were right in thinking that the shipment time was guaranteed, and time was of the essence of theis not disputed that if there was any such adequate contract the defendant will not be liable for damages. It is equally clear that if there was no such contract, the defendant cannot escapethink that this proposition is not sound. Before the seller could be heard to say that the non-supply was due to default on the part of his suppliers or some other cause beyond his control the seller is bound to show that he himself did all in his power to ensure timely supply. He could do so by showing that he had made a contract under which he was entitled to obtain the supplies in good time. If under his contract with his own suppliers he was not so entitled but there was merely a chance of his getting the supplies in time to enable him to honour his contract the non-supply would clearly be due to his own default in not making a contract which would have so entitled him and not to a default on the part of the supplier or to a circumstance beyond hiswould be force in this argument if at the time the breach took place, that is, the last date under which shipment could be made under the contract in suit, the defendant would have been entitled to obtain goods, under that earlier contract. But that is not the position. In any case the earlier contract was cancelled at the end of September ; so that at the time of the breach the seller was not entitled to receive any goods under that contract.The great difficulty in the way of this argument is that the defendants contract with its Italian suppliers has not been produced and we do not know the terms of that contract.Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants Italian supplier was examined he said nothing which would even tend to show that the contract between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney-General that the defendants Italian suppliers would be bound to spread the supply over the period October/November, 1950.20. There is thus no escape from the conclusion that the defendant has failed to establish its case that it had an adequate contract with its Italian suppliers, which if not broken, would put it in possession of 40,000 lbs. of cotton fibre before December 15, 1950.The defendant firm cannot therefore escape the liability for the damages for breach of the contract, by the failure to supply those goods.