Mulki Narayana Kammathi and Others vs Kolathingal Kuni Moyi and Others

Reilly, J.—The plaintiffs allege that they sold 25,000 cocoanuts to defendants at Rs. 41 a thousand, that the defendants agreed to remove

the cocoanuts from plaintiffs'' warehouse within 4 days, that the defendants did not remove them and therefore plaintiffs after notice to defendants

sold the cocoanuts by auction at Rs. 35 a thousand. Plaintiffs sued defendants for the amount of the loss on the re-sale. Defendants denied the sale

to them, but the Subordinate Judge made a decree for plaintiffs as sued for. Defendants 2, 3 and 4 pray for revision.

It is urged before me that there was no completed contract between the parties but only negotiations for the sale of the cocoanuts and that, even

if defendants agreed to buy 25,000 cocoanuts at Rs. 41 a thousand from plaintiffs, those cocoanuts were never ascertained and appropriated to

the sale from among the cocoanuts in plaintiffs'' warehouse. But on examining the record, I find that there is evidence, not only that defendant 4, on

behalf of defendants, agreed to buy 25,000 cocoanuts at Rs. 41, but also that he inspected the cocoanuts at plaintiffs'' warehouse, where they

were stored in one lot and agreed to take that lot. The Subordinate Judge was entitled to find on that evidence, that the sale was complete.

The only other point urged for defendants is that plaintiffs had no right to resell the cocoanuts. The argument is that they could do that u/s 107 of

the Contract Act, only if they had a lien on the eoooanuts and that in this ease they bad no lien, as it does not appear that any definite time was

fixed for payment. For this defendant''s vakil relies on Section 96 of the Contract Act. Under that section, if the sale was on credit and no time was

fixed for delivery, then plaintiffs would have had no lien and defendants would have been entitled to immediate delivery. But in this case, the time

for taking delivery passed and defendants repudiated the contract. If the sale was on credit, as appears to have been the case, defendants would

have had the right to immediate delivery, against which plaintiffs could not have set up any lien. But as defendants failed to take delivery within the

time fixed and repudiated the contract, they cannot take advantage of the provisions of Section 96, which give the buyer a right to delivery without

payment in certain circumstances. The general provision of Section 95 of the Act giving the seller a lien on sold goods remaining in his possession

has effect, unless some exception applies. In the present case, the Subordinate Judge was right in finding that plaintiffs were entitled to resell the

cocoanuts and recover the loss from defendants.

The petition is dismissed with costs of respondents 1 and 2.