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PETITIONER: JUGGILAL KAMLAPAT

       Vs.

RESPONDENT: PRATAPMAL RAMESHWAR

DATE OF JUDGMENT24/11/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) GUPTA, A.C. KAILASAM, P.S.

CITATION:  1978 AIR  389            1978 SCR  (2) 219  1978 SCC  (1)  69

ACT: Sale of Goods Act 1930--Sec. 2(4). 18 and 23. Meaning  of  document of title to goods--If  pucca  delivery order  passes the title--If custom can prevail over  law  or express contract. Evidence  Act 1872 Sec. 92 whether custom can be pleaded  to vary a written contract. Civil  Procedure Code 1908 Order VIII rule 2 and  3--Whether all grounds of defence must be raised--Effect of not raising all defence.

HEADNOTE: The   appellant-plaintiff  entered  into  a  contract   with respondents  to  sell diverse quantities of  B.  Twill.   By another  contract  the  appellant  agreed  to  sell  to  the respondents   certain  quantity  of  Hessian   goods.    All contracts  were  in the standard forms of  the  Indian  Jute Mills  Association.  All contracts contained  the  following clause for payment               "Payment  to be made in cash in  exchange  for               Delivery  Orders  on Sellers, or  for  Railway               Receipts or for Dock’s Receipts or for  Mate’s               Receipts (Which Dock’s or Mate’s Receipts  are               to  be handed by a Dock or Ship’$  Officer  to               the Seller’s representatives." The  appellant tendered to the respondents  "Pucca  Delivery Orders"  on  different mills.  These pucca  delivery  orders contained  a  stipulation that the mills were not  bound  to recognise  any  transferee  except the  original  buyer  and further  requires the transferee to give an  undertaking  to the  mills that he will take delivery of the goods in  terms of  the contract between the mills and the  original  buyer. The  appellant  was not the original buyer  of  these  pacca delivery  orders.   The respondents refused  to  accept  the pucca  delivery orders tendered by the appellant or pay  for the same.  The appellant, therefore, instituted the  present suit.  In para 19A of the plaint it was contended  that  the delivery  orders were valid by virtue of trade,  custom  and usage  of  the jute trade in Calcutta.  The  respondents  in their   written  statement  contended  that  the   documents described  as pucca delivery orders are not delivery  orders

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at  all,  and,  therefore, the tenders  were  invalid.   The respondents  also  denied the existence of trade  custom  or usage as alleged. The  learned  Trial Judge of the High Court  held  that  the pucca  delivery  orders  tendered by the  appellant  to  the respondents were not in conformity with the contacts between the  parties.  He also held that the custom was not  proved; that  the custom alleged was contrary to sections 18 and  23 of the Sale of Goods Act, 1930 and also to the terms of  the written contracts. In  an appeal filed by the appellant the Division  Bench  of the High Court confirmed the decision of the Single Judge. In an appeal by certificate Beg, CJ. (concurring with  Gupta J.) HELD  :  1.  The crux of the whole matter  was  whether  the plaintiff  had  carried  out  what  it  had  undertaken  and tendered  the  delivery notes in respect of  the  contracts. The  respondent did not bargain for delivery orders  contain ing  reservations  or  conditions  entitling  the  mills  or suppliers  to refuse delivery to the holder of the  delivery order,  unless the defendants complied with such  other  and additional terms or conditions as the suppliers imposed.  It is difficult to see how any alleged custom, could modify the requirement of law as 220 to  what  a  document  of title. is  or  what  a  particular contract is or what a particular delivery order means.   The plea of custom set up by the plaintiff was not available  in the face of express statutory provisions as well as specific terms of the contract between the parties.  Alleged  custom, amounting  to ignoring or contravening the express terms  of agreements  or the operation of statutory  provisions  would obviously  be invalid.  A custom could not be pleaded as  an answer  to the provisions of section 92 of the Evidence  Act which  bar  oral  evidence to contradict, vary  add  to,  or subtract  from the terms of an agreement.  Moreover, it  has been  found by both the learned Trial Judge as well  as  the Division  Bench  of  the High Court that there  is  no  such uniformity  of practice or usage about the forms  of  either contracts  or  delivery orders or their implications  as  to annex  obligations  contained.  in  a  particular  type   of delivery  order to transactions in general.  The  defendants had  to enter into direct separate contracts with the  mills before   he  could  demand  deliveries.   Such   conditional delivery  orders  are certainly not documents  of  title  as defined by section 2(4) of the Sale of Goods Act. [223C,  D- 226D.  E-G. 227A, B, D] Anglo-India  Jute  Mills Co. v. Omademull, 38  Cal.   I.L.R. 127,  Dutni Chand Rataria v. Bhuwalka Brothers Ltd.,  [1955] SCR 1071, Jute & Gunny Brokers Ltd. and Anr. v. The Union of India  & Anr., [1961] (3) SCR 820 and The  Morvi  Mercantile Bank  Ltd.,  & Anr. v. Union of India, [1965]  (3)  SCR  254 referred to. 2.   The  defendants cannot be compelled to pay damages  for alleged  breach of contract when the delivery order was  not what they contracted for. In view of the above conclusion it is not necessary to  deal with  the further question whether, the delivery orders,  if they   authorised   the  defendants   to   demand   delivery unconditionally,   would   still  not   constitute   a   due performance  of the contract between the parties  until  the goods had been ascertained. [227H, 228A.] GUPTA  J.  A delivery order is a document of  title  to  the goods according to section 2(4) of the Sale of Goods Act.  A delivery  order is an order by the owner of goods  directing

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the  person who holds them on his behalf to deliver them  to the person named in the order.  If the pucca delivery orders were documents of title the defendant should have been  able to  get  delivery  only  by  lodging  them  with  the  mills concerned  but  the  delivery orders  issued  by  the  mills contain  a  term  that  the mills  would  not  be  bound  to recognise  a transferee.  The transferees have  to  register their names with the mills as buyers and the mills insist on an application being made for that purpose.  Thus, the mills insist  on a new and separate contract that the holder of  a pucca delivery order accept the obligations of the  original buyer,   which  are  not  necessarily  identical  with   the obligations  of the buyers under the contracts concerned  in this  case.  The new contract insists on and includes  terms regarding  insurance  and  godown  charges  which  are   not mentioned  in the contracts between the parties.   Thus  the pucca delivery orders were not documents of the title  under the  Sale of Goods Act and were not in conformity with  what the parties had contracted for. [230 F. G. 231A.  F] 2.   The delivery orders did not relate to any specific  lot of  goods.   It is well established that title  cannot  pass until the goods are ascertained in view of section 18 of the Sale of Goods Act. [231F] Jute  and Gunny Brokers Ltd. and Anr. v. Union of India  and Ors, [1961] 3 SCR 820; followed. 3.   The forms of the Indian Jute Manufacturers  Association are  not uniform.  They differ in several particulars.   The High  Court has found that no such custom or usage has  been proved on evidence. [232C] Les  Affreteure  Raunis Societe Anonyme v.  Leopold  Walford (London) Ltd., 1919 AC 801 (807) referred to. Anglo-India  Jute Mills Co. v. Omademnull, ILR  38  Calcutta 127, distinguished. Gunny  Brokers  Ltd. v. Union of India, [1961]  3  SCR  820, referred to. 221 Duni  Chand  Rataria  v. Bhuwalka Brothers  Ltd.,  [1955]  1 S.C.R. 1071, distinguished. Bayyana Bhimayya v. The Government of Andhra Pradesh, [1961] 3  SCR  267  and State of Andhra Pradesh  v.  Kolla  Sreemaa Murthy, [1961] 1 SCR 184; distinguished. 4.   The contention of the plaintiff that the defendant riot having  raised  the plea in their  correspondence  with  the plaintiff that the delivery orders tendered were  defective, were  estopped  from  justifying their  repudiation  of  the contracts  on that ground is negatived.  The  plaintiff  did not plead the case of estoppel and was, therefore,  debarred from raising the contention.  Even otherwise the law permits a  defendant to justify the repudiation on any ground  which exists at the time of repudiation whether or not the  ground was stated in the correspondence. [233A. 234A-B] Nune  Sivayya  v.  Maddu  Ranganayakulu,  62  I.A.  89  (98) approved. KAILASAM J. (Dissenting). 1.   In   the  original  written  statement  the   defendant contended  that the bought and sold chits and contracts  are invalid and void as hit by the provision of West Bengal Jute Goods  Act, 1950.  Therefore, on the original pleadings  the question  as to whether the delivery order was according  to the  contract  was  not in dispute.  Four  years  after  the original plaint was filed the appellant sought amendment  of the  plaint.   By this amendment, the  appellant  reiterated that  the tenders made by the appellant of the  mills  pucca delivery  orders  were duly made in terms  of  the  contract between  the  parties An Additional  Written  Statement  was

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filed  by  the  defendant contending that  the  mills  pucca delivery orders were not delivery orders at all and, in  any event,  the  appellant  had no title to any  of  them.   The definition of document of title to goods under section  2(4) is an inclusive definition.  A document which is used in the ordinary  course  of business as proof of  possession  would satisfy the definition as also a document which would enable the possessor to receive the goods thereby represented.  The transfer of title is therefore, not relevant.  The  document of title to goods need not be confined to specific goods for it  may  relate  to  goods which  are  not  specified.   The property in the goods is not transferred to the buyer unless and until the goods are ascertained but the contention  that unless  by  the document the property in  the  goods  passes there  could  be no document of title  cannot  be  accepted. [237B-C, D, 239A, B. E, 243A] Anglo India Jute Mills Co. v. Omademull, I.L.R. 38 Cal. 127, referred to. Duni  Chand Rataria v. Bhuwalka Brothers Ltd., [1955] 1  SCR 1071 applied. Bayyana Bhimayya v. The Government of Andhra Pradesh, [1961] (3) SCR 267 referred to. Jute and Gunnv Brokers Ltd., and Anr. v. The Union of  India and Ors., [1961] (3) SCR 820, applied, State of Andhra Pradesh v. Kolla Sreerama Murthy, [1963] (1) SCR  184 and Butterworth v. Kingsway Motors Ltd.,  [1954]  2 All E.R. 694 referred to. 2.   The  plea  of the appellant that  the  delivery  orders tendered  in  respect of the contracts  are  proper  tenders would  have  to  be accepted since  the  possession  of  the documents entitles to receive the goods thereby represented. [243-B] Bhiniayya  v. The Government of Andhra Pradesh,  [1961]  (3) SCR 267 at 270 applied. 222 3.   The plea of the appellant is that the delivery order is in accordance with the contract and that the respondent knew that the delivery order was in accordance with the  contract and   that   he  wanted  to  avoid  the   contract   without justification as the prices had fallen. [244A-B] 4.   In   the  original  written  statement  there  was   no challenge  to  the  validity of the  delivery  orders.   The parties to the suit are bound by the procedure prescribed in the  Code  of  Civil Procedure.  Order VIII  of  the  C.P.C. provides  what  a written statement should  contain.   Order VIII  rule  2 requires that a defendant must  raise  by  his pleading  all  matters  which  show  +he  suit  not  to   be maintainable  or  that  the transaction is  either  void  or voidable in point of law and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise.   Rule 3 requires that it shall not be  sufficient for  a defendant in his written statement to deny  generally the grounds alleged by the plaintiff but the defendant  must deal  specifically with each allegation of fact of which  he does  not  admit the truth except damages.  The  failure  to question  the validity of the delivery order on  the  ground that  it  required registration with the mill  or  that  the possessor was bound to give an undertaking, would be failure to  comply  with  the  requirements  of  Order  VIII.    The pleadings  of  the original side of the High Court  must  be strictly construed. [245B, G-246A-B] Badat & Co. v. West India Trading Co., A.I.R. 1964 S.C.  538 followed. 5.   The respondent had ample opportunity to put forward his objections to the delivery order in the correspondence  that

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was  exchanged  between  the  parties  or  in  the   written statement  as originally filed.  On the pleadings itself  it appears  that the defence is without substance  and  belated and  put forward for the purpose of escaping the  liability. [246-D-E] 6.   The defendant not receiving the delivery orders and not raising  the plea. specifically is more in  accordance  with his  having  been satisfied with the delivery  orders  being according to contract and his refusal to accept the delivery orders was to avoid the loss due to fall in price.  The fact that  3  contracts,  relating  to  2  deliveries  have  been accepted  shows  that  the  respondent  was  following   the practice   prevalent   in  Calcutta  by   the   Jute   Mills Association. [246F, G.] 7.   Taking into account the fact that the appellant as well as the respondent were engaging themselves in the jute trade in Calcutta and were following generally the practice of the jute   mills  Association  and  had  entered  into   various contracts  and having business relationship, the  conclusion is  irresistible that the respondent was familiar  with  the delivery order with the conditions and accepted" it as being in use in the ordinary course of business.  It is  difficult to  accept  the  plea  that  the  delivery  order  was   not negotiable  or that it was not in terms of the contract  and that it would not have enabled him to take possession of the goods.   The delivery orders were according to the terms  of the  contract  and the respondent was aware  of  them..  The question  is  not one of estoppel but the  inference  to  be drawn from the conduct of the respondent.  The pleadings  as well  as  the conduct lead one to the  conclusion  that  the delivery  orders were in accordance with the contract  which the  respondent  accepted as mills  pucca  delivery  orders. [247H-248A-B, G] In  view  of the majority judgment the appeal  is  dismissed with costs.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2166  of 1968. From  the  Judgment  and  Decree  dated  26-4-1966  of   the Calcutta High Court in Appeal No. 263 of 1959. Y.   S.  Chitale, Leila Sethi (Mrs.), Praveen  Kumar,  Mukul Mudgal,. B.   P. Maheswari and Suresh Sethi for the Appellant. S. K. Gupta, S. M. Jain and B. K. Jain for the Respondent. The following opinions of the Court were delivered 223 BEG, C.J.-I have gone through the differing judgments of  MY learned brethren Gupta and Kailasam.  The difference arises, I  find,  primarily from divergent interpretations  of  what was, pleaded by the parties.  What Kailasam J. considers  as having  been admitted in the pleadings, by implication,  was assumed  by  Gupta  J.  to be the matter  put  in  issue  by pleadings of the two sides which had to be decided. After having considered the pleadings of the parties, I  am, unable to agree, with great respect, with my learned brother Kailasam  that  this case can be decided in  favour  of  the plaintiff on the pleadings of the parties.  It is true  that the defendant admits the contract under which goods were  to be  delivered  to the defendant under delivery notes  to  be supplied by the plaintiff for which payments were to be made by the defendant.  But, that did not mean that the defendant accepted  what  the  plaintiff alleges to  be  the  contract

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between the parties with all its alleged implications.   The crux  of  the  whole matter was whether  the  plaintiff  had carried  out  what it bad undertaken and  tendered  delivery notes  in  respect  of the contracts still left  for  us  to consider so as to comply with the conditions of the contract really admitted by the defendant.  In other words, there  is a  dispute  on what the parties understood the  contract  to provide or mean.  While the defendant accepts that there was a contract, he does not accept the plaintiff’s version about its  due compliance by the plaintiff and a breach of  it  by the  defendant.  If this had not been so there could  be  no dispute.   The whole dispute revolved round the  question  : Was  tender of delivery ,variance with the contract  between the parties ? The plaintiff realized fully that the difficulty in the  way ofan acceptance of its case was caused by the  additional conditions  sought to be attached to actual delivery by  the delivery orders tendered   by it.It,  therefore,   amended the plaint by adding as follows :               "19A.   The tenders made by the  plaintiff  of               the  Mills Pucca Delivery Orders as  mentioned               in paragraphs 9, 14 and 18 of the Plaint  were               duly  made in terms of the  Contracts  between               the parties.  In any event the Delivery Orders               tendered in respect of the Contracts mentioned               in  the                Plaint  were  and   are               proper tenders by virtue of trade customs  and               usage   of   the  Jute  Trade   in   Calcutta.               Particulars of such customs and/or usages  are               set out hereunder.               (i)   In the Calcutta Jute market there is  an               usage that upon the issue by the Mills to  the               buyers  of Deliery orders in respect  of  jute               goods  purchased, the purchasers are  regarded               as  the owners of the goods with the right  to               transfer these goods by endorsing the delivery               Orders  and  that  the  Delivery  Orders   are               regarded  as documents of title to  the  goods               covered by them.               (ii)At  no  time  till  actual  delivery  is               given, is there any appropriation of the goods               either  to the Contracts or  Delivery  Orders,               but notwithstanding the absence of               224               the  appropriation, the holders of  the  Mills               Delivery Orders (known in the market as  Pucca               Delivery Orders) are regarded by the trade  as               the owners of the relevant goods.               (iii)That   the  Pucca  Delivery  Orders   as               representing the goods, pass from hand to hand               by   endorsement   being   received   by   the               successive buyers against cash payment and are               used  in  the  ordinary  course  of   business               authorising the holder thereof to receive  the               goods which they represent irrespective of the               forms in which the Mills Pucca Delivery Orders               are couched._               (iv)That the tender of Mills Delivery Orders               on due date to the buyer, irrespective of  the               form in which they may be couched, in exchange               for  cash was and is a fair and  valid  tender               under   the   Standard   India   Jute    Mills               Association  Contract Forms, and were and  are               treated as such.               19B.  The defendant, was at all material times

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             fully  aware  of the aforesaid  trade  customs               and"  usages and dealt with the  plaintiff  on               the basis thereof." The,  defendant in his additional written statement set  out in extensor as follows :               "2.  With  regard  to  paragraph  19A  of  the               amended Plaint, the defendant denies that  the               alleged tenders or any of them or the  alleged               delivery orders or any of them were :in  terms               of   the   contracts  between   the   parties.               Further,  the documents described  therein  as               Mills’ Pucca Delivery Orders, are not Delivery               Orders at all.The plaintiff in any event had               no    title to any of them.The   documents               described as Delivery Orders on the face ofthem               relate  to goods deliverable  under  contracts               betweenthird parties mentioned in the  said               alleged DeliveryOrders. In any event, the               goods mentioned in the allegedDelivery Orders               are not goods of the description mentioned  in               the contracts between the parties   herein.               Further, thedefendant   called   for   the               tender of inspection orders in termsof               the   said   contracts,  but   the   plaintiff               wrongfully  and in breach of  contract  failed               and  neglected to tender any inspection  order               even   with  the  purported  tender   of   the               Documents  described  as  delivery  orders  or               otherwise.               The alleged tenders were each and all invalid.               3.With  further  reference  to  the   said               paragraph  19A, the defendant denies that  the               alleged tenders of alleged Delivery Orders  or               any  such alleged tender were or  are,  proper               tenders by virtue of any alleged trade  custom               or usage of the jute trade in Calcutta.  It is               denied that there is any trade, custom               225               or  usage as alleged.  The correctness of  the               alleged  particulars of the alleged custom  or               usage is disputed and denied.               4.The   allegations  contained   in   sub-               paragraph  (i)  of paragraph 19A  are  denied.               The  documents described as  alleged  delivery               orders  in  the  said paragraph  19A  are  not               transferable by endorsement.               5.Save  that there is no appropriation  of               the goods either to any particular contract or               to   any  delivery  order,   the   allegations               contained  in sub-paragraph (ii) of  the  said               paragraph 19A are denied.                6.The allegations contained in  sub-paragraph               (iii) of the said paragraph 19A are denied.                7.   The  defendant  denies  each  and  every               allegation containedin sub-paragraph (iv)  of               the said paragraph 19A.                8.   With regard to paragraph 19B of the said               amended plaint, it is denied that there was or               is  any  trade custom or usage as  alleged  or               that  the defendant was at any time  aware  of               any  such alleged custom or usage or that  the               defendant  dealt  with the  plaintiff  on  the               basis  of  any such alleged custom  or  usage.               The alleged usage or custom (the existence  of               which is denied) is in any event  inconsistent

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             with  the terms of the said written  contracts               between  the parties and as such  evidence  of               such alleged usage or custom is inadmissible." As a result of the explicit assertions by the plaintiff  and the  denials by the defendant, the real dispute between  the parties  clearly  emerged.   It was  :  Did  the  particular delivery  orders,  indorsed on behalf of  the  plaintiff  in favour of the defendant, amount to valid tenders as  contem- plated  by  the contract between the parties ?   Hence,  Mr. Justice Bachawat of the Calcutta High Court, who dealt  with the  case in its earlier stages, framed the following  among other issues               "3. (a) Did the plaintiff tender the  delivery               orders in respect of June portion of the goods               in   terms  of  the  contracts  mentioned   in               paragraphs  3  of  the plaint  as  alleged  in               paragraph  9 of the plaint ?  If so,  was  the               tender valid ?               (b)   Was   there  any  wrongful  failure   or               neglect by the defendant to accept and/or  pay               for the same ?               (c)   Did  the defendant fail and  neglect  to               pay  for  and take delivery of the  said  June               portion of the goods ?               4. (a)Did the defendant fail and  neglect               to  pay  for and take delivery  of  the  Pucca               Delivery  Orders for May & June 1952  portions               of the goods in respect of the               226               contracts  mentioned  in paragraph 13  of  the               plaint as alleged in paragraph 14 thereof ?                . . . . . . . . . . . . . . . . . . . . . . .                5. (a)Did  the plaintiff duly tender  the               delivery order in respect of June 1952 portion               of  the contract mentioned in paragraph 17  of               the plaint ?  If so, was the tender valid ?               (b)   Was   there  any  wrongful  failure   or               neglect by the defendant to accept and/or  pay               for the same ?               (c)   Did  the defendant fail and  neglect  to               pay  for  and take delivery of the  said  June               1952 portion of the goods ? The  Trial Judge at the final stage, Mr. Justice A.  N.  Ray (as  he  then  was),  of  the  Calcutta  High  Court,   then considered the whole of the law and evidence on these issues at  considerable length and held that the plaintiff did  not tender  the delivery orders in accordance with the terms  of the  contract between the parties.  ’the defendant ’did  not bargain  for  delivery  orders  containing  reservations  or conditions  entitling  the  mills  or  suppliers  to  refuse delivery  to  the holder of the delivery  order  unless  the defendant  complied with such other and additional terms  or conditions  as  the suppliers imposer his,according  to  the defendant, was "no delivery order". It was only an offer  to deliver   if  certain  conditions  are  fulfilled  and   new liabilities  undertaken.  The contract between  the  parties was   for  delivery  without  such  additional   terms   and liabilities.  This was the short and simple question decided upon documentary evidence before the Court. It  is difficult to see how any alleged custom could  modify the requirements of law as to what a "document of title"  is or  what  a  particular contract is  or  what  a  particular delivery order means. It could not help a legally  defective document  to  overcome  the basic legal defect  due  to  its terms.  It  could  not override the specific  terms  of  the

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actual contract between the parties.  It could not  validate delivery, orders containing reservations derogating from the legal  requirements  of a document of title.   The  plea  of custom  set  up  by  the  plaintiff,  in  desperation,   was obviously not available in the face of the express statutory provisions  as  well as the specific terms of  the  contract between  the  parties.   An  alleged  custom,  amounting  to ignoring or contravening the express terms of agreements  or the  operation of statutory provisions would, obviously,  be invalid.  Surely, a custom could not be pleaded as an answer to  the provisions of section 92 of the Evidence  Act  which bar  oral evidence to contradict, vary, add to  or  subtract from the terms of an agreement, although proviso (5) of sec- tion  92 allows "any usage or custom by which incidents  not expressly  mentioned in any contract are usually annexed  to contracts of that description" to be proved.  Annexing usage or  custom  to  the express terms of the  contract  is  very different   from  demolishing  the  original   contract   by substituting new terms which enable a party to a contract to get   over  its  obligations  under  the  contract   itself, Moreover, it has 227 been  found,  by  the learned trial Judge  as  well  as  the Division Bench of the Calcutta High Court, that there is  no such  uniformity  of practice or usage about  the  forms  of either contracts or delivery orders or their implications as to  annex  obligations  contained in a  particular  type  of delivery  order  to  transactions in  general  according  to various forms of contracts for purchase of jute. It has been clearly found by Ray J., and the Division Bench, consisting  of Sinha CJ. and Sen J., that the contracts  now before  us  (we are not concerned with other  contracts  for which  decrees  may or may not have been  granted)  are  for "delivery  orders" which are documents of title and not  for orders  with conditions annexed to them which  prevent  them from  so operating.  On the express terms of these  delivery orders  , the suppliers of jute were not bound to  recognise the  rights of the holder by mere endorsement of the  order. It is only after the holder had applied for registration and undertaken payment of storage charges, and acknowledged  the Hen  of the supplying mills an the goods,  that  the  holder could acquire the right to delivery. In other words, he  had to enter into direct separate contracts with themills before   he,  could  demand  deliveries.  Such   conditional deliveryorders    are certainly not documents of title  as defined by section 2(4)of  the  Sale of Goods  Act,  which lays down:               "(4)  "document of title to goods" includes  a               bill   of  lading,   dock-warrant,   warehouse               keeper’s       certificate,       wharfingers,               certificate, railway receipt, warrant or order               for  the  delivery  of  goods  and  any  other               document  used  in  the  ordinary  course   of               business as proof of the possession or control               of  goods,  or authorising  or  purporting  to               authorise,   either  by  endorsement   or   by               delivery,  the  possessor of the  document  to               transfer    or    receive    goods     thereby               represented." We  have  examined  a  number  of  cases  cited  before  us, including Anglo-India lute Mills Co. v. Omademull, (1)  Duni Chand  Kataria  v. Bhuwalka Brothers Ltd.,(2) lute  &  Gunny Brokers Ltd. & Anr. v. The Union of India & Anr.,(3) and The Morvi  Mercantile Bank Ltd. & Anr. v. Union of India.(4)  We were  not  referred to any case which has laid down  that  a

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document purporting to be a delivery order hedged round with conditions  showing that the supplier of goods had  reserved the  option  to  deliver or not to  deliver  unless  further conditions  are complied with could possibly be a  "document of  tide"  as contemplated by section 2(4) of  the  Silo  of Goods  Act get out above. it could not authorise or  purport to  authorise  the holder of the document  to  transfer  the good&  mentioned in it until another agreement. took  place. The  holder  might  put  up an equitable  claim  if  he  had actually paid some money.  But, he could not be compelled to pay  damages  for  an alleged breach of  contract  when  the delivery order was not what (1)  38 Cal.  I.L.R. 127. (2)  [1955] SCR 1071. (3)  [1961] 3 S.C.R. 820. (4)  [1965] 3 SCR 254. 228 he  had contracted for.  It is a simple case in  which  what the defendant contracts for has not been received by him  on patent  facts pleaded and established.  Therefore  with  due respect I disagree with Kailasam J.   and concur with the view of my learned brother Gupta. 1  do not think it is necessary, on the  conclusion  reached above  by me, to deal with the further question whether  the delivery  orders,  if they had authorised the  defendant  to demand delivery unconditionally, would still not  constitute a due performance of the contract between the parties  until goods  had been ascertained and title actually passed.   If, according to the contract, payment was only to be made  when property  in  goods had passed, Section 18 of  the  Sale  of Goods Act would have also constituted a good defence.   But, as I have said, I need not go into this further question  as it  is  enough, for the purposes of the case before  us,  to conclude,  as I do, in agreement with the learned Judges  of the  Calcutta High Court and my learned brother Gupta,  that the  so-called delivery orders did not fulfill the terms  of the contractbetween the parties. The result is that this appeal must be dismissed with costs. GUPTA,  J.-This appeal on certificate of fitness granted  by the Calcutta High Court is at the instance of the  plaintiff in a suitfor  recovery of damages for breach  of  contract. The appeal turns onthe  question whether certain  documents described  as  ’pucca delivery orders’ are  really  delivery orders as known in law. The  question arises on the following facts.  The  plaintiff and the defendant are both firms registered under the Indian Partnership  Act, dealing in the sale and purchase  of  jute goods.   By  four different contracts entered  into  by  and between  the plaintiff and the defendant, the latter  agreed to  buy  from the plaintiff diverse quantities  of  B  twill deliverable in the months of April, May and June, 1952.   By another  contract,  the  defendant agreed to  buy  from  the plaintiff  a  certain  quantity  of’  hessian  goods,   also deliverable in April, May and June, 1952.  The appeal before us  concerns only the June quota of B twill and the May  and June   installments   of  hessian.   The   April   and   May installments  of B twill and the April quota of  hessian  do not form the subject-matter of this appeal. It  is  not  disputed that all the  contracts  were  in  the standard forms of the Indian Jute Mills Association.  In all these  contracts there is a clause for payment which  is  in the following terms : .lm15                              "Payment to be made in cash  in               exchange  for Delivery Orders on  Sellers,  or

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             for Railway Receipts or for Dock’s Receipts or               for  Mate’s  Receipts (which Dock’s  or  Mates               Receipts are to be handed by a Dock or  Ship’s               officer to the Seller’s representatives)." In  respect  of the June, quota of B twill and the  May  and June installments of hessian, the plaintiff tendered to  the defendant  ’pucca  delivery  orders’  on  mills  like   Fort Gloster,  Fort  William or Auckland generally  described  as ’European  Mills’.  These pucca delivery orders  which  were issued by European Mills passed through several hands 229 before they came into appellants possession.  They contain a stipulation  that the Mills were not bound to recognise  any transferee,except   the  original  buyer  and  require   the transferees  to give an undertaking to the Mills  that  they would  take delivery of the goods in terms of  the  contract between the Mills and the original buyer.  The appellant, as already  stated, was not the original buyer of  these  pucca delivery  orders.  The respondent having refused  to  accept the  pucca delivery orders tendered by the appellant or  pay for the same, the appellant instituted the suit out of which the appeal arises. It  is alleged in the plaint that the tenders made  were  in terms  of  the contracts between the parties  and  that  the defendant committed a breach of the contract by refusing  to accept them.  In paragraph 19A of the plaint it is  claimed- that the tender of such delivery orders was valid by  virtue of  trade  custom and usage of the Jute trade  in  Calcutta. Particulars of such custom or usage as set out in the plaint are as follows :-               "(i)  In the Calcutta Jute market there  is  a               usage that upon the issue by the Mills to  the               buyers  of Delivery orders in respect of  jute               goods  purchased, the purchasers are  regarded               as  the owners of the goods with the right  to               transfer these goods by endorsing the Delivery               Orders  and  that  the  Delivery  Orders   are               regarded  as documents of title to  the  goods               covered by them.               (ii)At no time till actual delivery is  given,               is  there  ’any  appropriation  of  the  goods               either  to the Contracts or  Delivery  Orders,               but notwithstanding the absence of this appro-               priation,  the holders of the  Mills  Delivery               Orders (known in the market as Pucca  Delivery               Orders)  are  regarded  by the  trade  as  the               owners of the relevant goods.               (iii)That   the  Pucca  Delivery   Orders   as               representing the goods, pass from hand to hand               by   endorsement   being   received   by   the               successive buyers against cash payment and are               used  in  the  ordinary  course  of   business               authorising the holder thereof to receive  the               goods which they represent irrespective of the               forms in which the Mills Pucca Delivery Orders               are couched.               (iv)That  the tender of Mills Delivery  Orders               on due ’date to the buyer, irrespective of the               form in which they may be couched, in exchange               for  cash was and is a fair and  valid  tender               under   the   Standard   India   Jute    Mills               Association  Contract Forms, and were and  are               treated as such." In  the  written statement the defendant  asserts  that  the documents  described  as  pucca  delivery  orders  "are  not

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delivery  orders at all" and therefore all the tenders  were invalid.  The existence of any such trade custom or usage as alleged  is  also  denied.  It is further  stated  that  the alleged  usage or custom would in any event be  inconsistent with the terms of the written contracts between the parties. 230 The learned Judge of the High Court who heard the suit  held that  the  tenders  of pucca delivery  orders  made  by  the plaintiff  were not inconformity with the contracts  between the parties.  He further found that on the evidence  adduced the  custom pleaded was not proved, that the custom  alleged was contrary to sections 18 and 23 of the Sale of Goods Act, 1930,  and also to the terms of the written contracts.   The learned  Judges composing the Division Bench that heard  the appeal  from  his Judgment, by two separate  but  concurring Judgments affirmed the decision of the single Judge.  It has been  mentioned already that the scope of the appeal  before us is not co-extensive,with the reliefs claimed in the  suit but  narrower.  We have not therefore referred to the  other issues in the suit or the other things recorded  by the High Court which are not relevant for the present purpose. Were the pucca delivery orders tendered by the plaintiff  in conformity  with what the parties contracted for ?  If  not, the  defendant  committed no breach by  refusing  to  accept them. These pucca delivery orders, as already mentioned, had been  issued  by  the  mills.  The  payment  clause  in  the contracts  provides  for payment in  exchange  for  delivery orders  on sellers.  Here, the sellers were  the  plaintiff- and not the mills.  A contention rejected by the High Court- and repeated in this Court is that where the contracts speak of  "delivery orders on sellers", ’the reference is  to  the original sellers, namely, the mills.  In a contract for sale of goods, the word seller must obviously refer to the  party selling under the contract unless there is anything ’in  the context  suggesting  otherwise.   There is  nothing  in  the clause  requiring one to read the word sellers to  mean  the original  sellers and not the sellers under  the  contracts, and  this is one of the reasons why the High Court held,  in our  opinion ’rightly, that the pucca delivery orders  which were  offered  were  not in compliance  with  the  contracts between  the parties.  More important is the  question,  did these  pucca delivery orders enable the defendant to  obtain delivery  of  the  goods  from the mills  in  terms  of  the contracts  ?   A  delivery  order is  a  document  of  title according to the definition of "document of title to  goods" in section 2(4) of the Sale of Goods Act, 1930.  A  delivery order  is an his behalf to deliver them to the person  named in the order.If  the pucca delivery orders were  documents of title, the defendantshould   have  been  able  to   get delivery only by lodging them with themills     concerned. But these delivery orders issued by the mills contain a term that the mills would not be bound to recognise a transferee. It  appears  from  the evidence  that  transferees  have  to resister their names with the mills as buyers, and for  this purpose the mills insist on an application being made in the following form (Ext.  DDD)                     "Dear Sirs,                     In   requesting  you to register us   as               the Holders   of the      above       Delivery               Order(s)  we  agree that  all  contract  terms               covering  it are to be applicable and to  have               been   signed  by  us  that  we   accept   all               obligations of  the original Buyers."                231 Thus  the mills insist on a new and separate contract,  with

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the   holder  of  a  pucca  delivery  order  accepting   the obligations of the original buyer which are not  necessarily identical  with  the  obligations of  the  buyer  under  the contracts concerned in this case. The,new contract  insisted on  includes  terms regarding insurance and  godown  charges which  are  not  mentioned  in  the  contracts  between  the parties. As an illustration, the High Court has referred  to one such delivery order (Ext. 1) issued by the Fort  Gloster Jute Mill which contains      these terms :               "(i)  That the company shall not be  bound  to               recognise any transfer thereof.               (ii)  That  the goods are held  covered  under               the company’s Insurance policies against  risk               of  fire while at the Mill until 1st  October,               1952, after which date a charge of eight annas               per  bale  per  month will be  levied  by  the               company for this purpose until removal.                (iii)  That  on and after  the  1st  October,               1952, the company will charge a godown rent of               eight annas per bale per month for the purpose               until removal.               (iv) That the company has a lien on the  goods               for the  above charges." It  thus appears that the pucca delivery orders did not,  as theHigh  Court has found, entitle the defendant to  obtain delivery fromthe  mills in terms of the contracts  between the  parties to the suit’.The term ’delivery order’  in  its natural sense would not include delivery orders of the  kind tendered  by the plaintiff, and there is nothing to  suggest that  the parties while agreeing on payment in exchange  for ’delivery orders’ used the term in any other sense, It  must therefore  be held that the pucca delivery orders  were  not documents of title under the Sale of Goods Act and were  not in conformity with what the parties had contracted for. There  is yet another reason why the pucca  delivery  orders cannot  be  taken  as documents of  title.   These  delivery orders  did not relate to any specific lot of goods.  It  is well established that title cannot pass until the goods  are ascertained in view of section 18 of the Sale of Goods  Act, 1930. (see Jute, and Gunny Brokers Ltd. and another v. Union of  India  and  others.(1)  It  was  argued  that  requisite quantities of goods were lying in the mills’ godown when the pucca  delivery  orders  were issued  which  was  sufficient ascertainment within the meaning of section 18.  It  appears from the Judgment of the learned single Judge as also of the Division Bench of the High Court that no responsible officer of the mills came forward to prove this.  But even  assuming that themills’  godowns  had sufficient  quantities  of  B twill and hessian when thepucca  delivery  orders   were issued, the requirement is not satisfied. Here        the contracts  were  for  the sale  of  unascertained  goods  by description.       Section  23  of the  Sale  of  Goods  Act provides (1)[1961] 3 S.C.R. 820. 232 that  in such cases, if goods of that description and  in  a deliverable  state are unconditionally appropriated  to  the contract by the seller with the express or implied assent of the  buyer, the property in the goods passes to  the  buyer. The  assent  may  be  given  either  before  or  after   the appropriation is made.  But here the plaintiff, who was  the seller, did not have the necessary control over the goods to be  able to appropriate them to the contracts even with  the consent of the buyer. It  was  next claimed that such pucca  delivery  orders  are

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tendered  and accepted following the trade custom and  usage in the Calcutta jute market.  It was suggested that the fact that the contracts were in the standard forms of the  Indian Jute  Manufacturers’  Association was an indication  of  the existing custom.  The forms are however not uniform.  It has been  found  by the High Court that they differ  in  several particulars. The learned single Judge who disposed of  the suit and the DivisionBench  that heard the  appeal  have found that no such custom or usagehas  been proved  on  the evidence.   I find no reason to  reconsider this finding  of fact. It has been argued that several decisions of this Court  and one  of the Calcutta High Court accept the existence of  the custom alleged in the plaint.  The learned single Judge  who decided the suit pointed out referring to the observation of Lord Birkenhead in Les Affreteurs Reunis Societe Anonyme  v. Leopold Walford (London) Limited(1) that a custom proved  in one  case should not be utilised to found facts in  another. I  do not think that any of the decisions relied on  by  the appellant in support of this contention finds that it is the custom  of jute trade in Calcutta to accept  pucca  delivery orders  of  the kind we are concerned with in this  case  as document  of title.  In the Calcutta case, Anglo-India  Jute Mills Co. v. Omademull(2), three pucca delivery orders  were issued  by the defendant company in favour of Janki  Dass  & Company’s  principals  or order.  Janki Dass &  Company  en- dorsed   the  delivery  orders  to  the   plaintiffs.    The plaintiffs  on making enquiries at the mills  were  informed that  the delivery orders were ,,all right".   The  delivery orders were in these terms :               "Please deliver to Messrs.  Janki Dass & Co.’s               Principals  or  order 50  Bls.  1,00,000  yds.               Hess Cloth 40 in 7 1/2 oz., 9 by 9 each  2,000               yds.  (One Hundred thousand yards only)  Ready               Shipment Rs. 113." The  cheque handed to the defendant company by Janki  Das  & Company  in payment of the goods comprised in  the  delivery orders  was  dishonored.  The  defendant  company  thereupon refused  to  give delivery of the goods  to  the  plaintiffs under the delivery orders.  The plaintiffs brought an action against  the defendant company for delivery of the goods  or their  value  or  damages  for  conversion.   The  defendant company urged that the delivery orders were not documents of title  and  property in the goods did not pass.   They  also denied  that these delivery orders were taken as  equivalent to  documents of title by any trade usage in Calcutta.   The Calcutta High Court held that (1)  [1919] A.C. 801 (807) (2)  I.L.R. 38 Calcutta 127. 233 the  defendant company having represented that the  delivery orders  would confer a good title and having put it  in  the power of M/s.  Janki Dass & Company to endorse the  delivery orders and having represented to the plaintiffs that it  was "till right", were estopped from denying that they had  been paid  for the goods to which the delivery orders related  or that  they  had  appropriated  the  goods  of  the  required quantity  and  description to the delivery orders  and  that they  held these goods for the plaintiffs.  It is  difficult to  see how this case helps the appellant.  The form of  the delivery orders was quite different from the ones  concerned in  the  case  before us and the case  was  decided  on  the principle  of estoppel arising in the circumstances  of  the case.  The Calcutta case was explained by this Court in Jute and Gunny Brokers Limited v. Union of India.(1) Rejecting an

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identical  argument  that  in spite of the  absence  of  any appropriation  of  the  goods  to the  contract  or  to  the delivery orders, by the usage of the jute trade in  Calcutta the  holders of such pucca delivery orders are  regarded  as the  owners  of  the goods  specified  therein,  this  Court pointed out that the Calcutta case merely laid down the rule of estoppel as between the mill and the holder of the  pucca delivery  order and that this did not mean "that in law  the title  passed to the bolder of the pucca delivery  order  as soon  as it was issued even-though it is not  disputed  that there  was no ascertainment of goods at that time  and  that the ascertainment only takes place when the goods are appro- priated  to the pucca delivery orders at the time of  actual delivery".  In  Jute and Gunny Brokers’  case  (Supra)  this Court  held  that where the contract concerned in  any  such delivery  order is a contract for the sale-of  unascertained goods, in view of section 18 of the Sale of Goods Act, 1930, title  cannot  pass  to  the  buyer  until  the  goods   are ascertained by appropriation.  Jute and Gunny Brokers’  case (supra)  is  really  an authority  against  the  appellant’s contention. Another case cited in this connection is Duni Chand  Kataria v.  BhuKalka  Brothers Limited.(2). The main  question  that arose for determination in that case related to the  meaning of the expression "actual delivery of possession" in section 2(1) (b) (i) of the West Bengal Jute Goods Future Ordinance, 1949 and it was held that the expression included within its scope  symbolical  as  well  as  constructive  delivery   of possession.  Another question which was raised, whether  the delivery  orders  concerned  in that case  could  be  called documents of title within the meaning of section 2(4) of the Sale of Goods Act, was left open.  Thus, this case also does not help the appellant. Bayyana Bhiniayya v. The  Government of  Andhra Pradesh(3) and State of Andhra Pradesh  v.  Kolla Sreerama Murthy,(4) are the other two decisions on which the appellant  relied.  Neither of these cases is on  the  point under  consideration.   Both  these  cases  deal  with   the liability  for payment of sales tax and are on the  question whether  the transaction is completed by giving  and  taking delivery of pucca delivery orders.  If pucca delivery orders are accepted and paid for, and the (1)  [1961] 3 S.C.R. 820. (2)  [1955] 1 S.C.R. 1071. (3)  [1961] 3 S.C.R. 267. (4)  [1963] 1 S.C.R. 184. 234 contract is fulfilled by delivery of goods, no such question as  involved in the case before us can arise.   Further,  in neither  of  these two decisions any such  trade  custom  as alleged   here  has  been  pleaded.   Neither  decision   is therefore relevant for the present purpose. It- was also contended that the defendant not having  raised the plea in their correspondence with the plaintiff that the delivery  orders tendered were defective, was estopped  from justifying  their  repudiation  of  the  contracts  on  that ground.   As  the  High Court has pointed out.  no  case  of estoppel was pleaded by the plaintiff and therefore,, it was the  plaintiff  who  should be precluded  from  raising  the question  of  estoppel.  Apart from that,  the  law  permits defendant  to  justify the repudiation on any  ground  which existed  at the time of the repudiation whether or  not  the ground  was stated in the correspondence. (see Nune  Sivayya v. Maddu Ranganayakulu(1). In the result the appeal fails and is dismissed with costs. KAIIASAM,  J.  This appeal is preferred by the plaintiff  on

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certificate,  of fitness granted by the Calcutta High  Court under article II 33 (1) (c) of the, Constitution against the judgment of the Bench of that High Court. The appellant filed a suit No. 3282 of 1952 in the  ordinary Civil  Jurisdiction  of  the Calcutta  High  Court  for  the recovery  of  a  sum  of  Rs.  2.52,968//11/-  against   the respondent  with  interest thereon at 6 per cent  per  annum until  realisation  or in the alternative  an  inquiry  into damages and decree for the amount as may be found upon  such inquiry. The  suit was against the respondent for breach  of  several contracts mentioned in Paragraph 20 of the plaint.  The suit was heard by a learned Judge of the Calcutta High Court  and by  a  judgment delivered on 24th April, 1959,  the  learned Judge passed a decree for sum of Rs. 67,275/- with  interest at  the  rate of 6% per annum and dismissed  the  suit  with regard to the rest of the appellant’s claim.  The  appellant preferred  an appeal to a Bench of the Calcutta  High  Court and  the  Bench dismissed the appeal confirming  the  decree passed by the trial Judge.  This appeal is preferred by  the plaintiff against the decree by special leave. The  appellant  is the owner of Jute  Mills  and  habitually ships and deals in the sale and purchase of jute goods. The  respondent  agreed to buy from the  appellant  and  the appellant  purported  to  sell  to  the  respondent  various quantities  of B Twill.  There were three contracts  entered into  on 22.11.1951, 1.12.1951 and 10.12. 1951 for  delivery of  certain  quantities of bags at specified,  rates  during April,  May  and June, 1952.  Under the  three  contracts  3 items  of  goods were deliverable by the  appellant  to  the respondent  in  April. 1952.  Regarding  these  three  items deliverable in April, 1952, the respondent agreed to sell to the  appellant  and  the appellant agreed to  buy  from  the respondent diverse quantities of B Twill in 235 settlement  of  the  goods deliverable  in  April,  1952  in respect of the three contracts.  As there was a fall. in the price  of  the  bags of Twills on the  basis  of  settlement contracts the appellant became entitled to Rs 50,175 and the respondent duly paid to the appellant the said sum.  So  far as  the delivery under the three contracts due in April  was concerned it was thus settled by payment by the  respondent. Regarding the goods deliverable under the three contracts in May, 1952 the respondent agreed to sell to the appellant and the  appellant agreed to buy from the respondent  the  goods deliverable  under  the  three contracts.  As  there  was  a further fall in the price of Twills the appellant  submitted 3  bills regarding the three transactions due in May  for  a sum  of Rs. 67,275 but the respondent neglected to  pay  the sum of Rs. 67,275. Regarding the goods deliverable in June, 1952 the  appellant tendered delivery orders in respect of the June delivery but the  respondent failed and neglected to accept the  delivery orders  and  to pay for the same.  The appellant  after  due notice  sold the goods at the respondent’s risk and  thereby suffered a loss of Rs. 91,109/7/-. Under  the fourth contract exchanged between  the  appellant and  the respondent dated 10th January, 1952 the  respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent three lakhs yards of hessian delivery in  equal  installments in April), May and June,  1952.   In respect  of  the  goods deliverable under  the  contract  in April, 1952 the appellant delivered the delivery orders  and the  respondent paid for and took delivery of the goods  but regarding   heiessian  deliverable  in  May  and  June   the

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respondent failed to pay and take delivery of pucca delivery orders.   The  goods  were resold after due  notice  to  the respondent  and  the  appellant  suffered  a  loss  of   Rs. 57,381/4/-.  By another contract dated 19th April, 1952, ex- changed  between  the  appellant  and  the  respondent   the respondent  agreed to buy from the appellant  and  appellant agreed  to  sell to the respondent certain quantities  of  B Twills at certain rates in June, 1952.  Though the appellant delivered  pucca  Delivery Orders in respect  of  the  goods deliverable  in  June,  1952,  the  respondent  failed   and neglected to accept and to pay for the goods or the Delivery Orders.   The  appellant sold the goods at the risk  of  the respondent at a loss of Rs. 37,203. The  defence  to  the  suit as  disclosed  in  the,  written statement  is that the respondent has since discovered  that the  said Bought and Sold Notes and contracts were  and  are invalid  and are void for the reasons stated in the  written statement. The ground on which the Bought and Sold Notes and  contracts are  stated  to be invalid and void is that under  the  west bengal Act V of 1950 (West Bengal Jute Goods Act) which  was promulgated on 15th March, 1950, and the notification issued thereunder. the making of contracts for sale and purchase of jute  goods  on a forward basis by or with  any  person  not being a person who habitually dealt in the sale or  purchase of  jute goods involving the actual delivery  of  possession thereof  was  prohibited.   As  the  respondent  had   since discovered that 236 the  contracts came within the mischief of the said Act  and the  notification  the  contracts were and  are  void.   The respondent  admitted  that  he paid a sum  of  Rs.  50,175/- regarding   the   three  contracts  in  respect   of   goods deliverable in April, 1952 but stated that the same was paid before the contracts were discovered to be void.  The  other allegations  made in the plaint were generally denied.   The facts  and/  or validity of the alleged  tender  and/or  the alleged resale and/or the alleged notice were denied.   With reference  to allegation in paragraph 14 of the plaint  that the   appellant  delivered  the  delivery  orders  and   the respondent paid for and took delivery of the delivery orders it  was averred in the written statement that  the  delivery orders  delivered by the appellant were paid for  and  taken delivery  of by the respondent before the relevant  contract was discovered to be void.  The claim in the plaint and  the respondent’s liability was generally denied. According  to the pleadings of the parties it is  seen  that the  plaint allegations are that the contracts were  entered into  in the standard I.J.M.A. forms which were  annexed  to the  plaint.   It was further alleged  ’that  regarding  the delivery  of goods in April, 1952, in respect of  the  three contracts the respondent entered into a settlement  contract and  paid  the  appellant a sum of Rs.  57,175  as  per  the contract.   Regarding goods deliverable in May,  1952  under the  three  contracts though the bills  were  submitted  the respondent failed and neglected to pay the same.   Regarding the  goods  deliverable under the three contracts  in  June, 1952, it is alleged that the appellant duly and in terms  of the contract tendered the delivery orders in respect of  the said  goods for June delivery but the respondent  wrongfully failed  and  neglected to accept and to pay  for  the  same. Regarding the hessian contracts for the goods deliverable in April, 1952, it is alleged that the appellant duly delivered delivery  orders  and  the  respondent  paid  for  and  took delivery of the same but failed and neglected to pay for and

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take delivery of the goods deliverable in May and June 1952. In  respect of the hessian deliverable in June, 1952, it  is alleged in the plaint that the appellant tendered the  pucca delivery orders but the respondent failed’ and neglected  to accept  and pay for the said goods or delivery  orders.   It may  be noted that the specific allegation in the plaint  is that  regarding  April delivery of Twills  under  the  three contracts  the  claim  was  satisfied  by  the  respondents. Regarding  the three contracts for goods deliverable in  May it is alleged in the plaint that the appellant submitted the bills  but respondent did not honour it.  In Paragraph 9  of the  plaint it is stated regarding the goods deliverable  in June,  1952  that "The plaintiff duly and in  terms  of  the contract tendered the Delivery Orders in respect of the said goods  in  respect  of  June  Delivery  but  the   plaintiff wrongfully failed and neglected to accept and/or to pay  for the  same."The  allegation  specifically  is  that  delivery orders were tendered interms of the contract.  So also  in the case of hessian contracts it isalleged in Paragraph 14  of  the  plaint that the appellant  duly  delivered  the delivery  orders  and  the  respondent  paid  for  and  took delivery  of the same.  Regarding the goods  deliverable  in June  1952 also in Paragraph 18 of the plaint it is  alleged that the appellant tendered pucca delivery orders in respect of goods deliverable in June, 1952 but the respondent failed and neglected to pay and accept for the 237 said goods.  The reply to the specific allegations  referred to  in  the  various paragraphs of the plaint  is  that  the delivery  orders in the case of goods deliverable  in  April were  paid  for and taken delivery of before,  the  relevant contract  was discovered to be void.  The allegation by  the defence according to the written statement is that the  res- pondent discovered the Bought and Sold notes and  contracts, to  be invalid and void under the West Bengal Act V of  1950 in  that it related to a forward contract  prohibited  under law.   The’  allegations  in the plaint  that  the  delivery orders  were issued according to the contract  were  nowhere denied.  The only defence was that the delivery orders  were received and paid for in the case of April contracts  before realising  that the contracts were void.  On the’  pleadings therefore, the question as to whether the delivery order was according to the contract was not in dispute.  Neither  were the  allegations  that the contracts were  in  the  standard I.J.M.A. Contract Forms were denied. Four years after the original plaint was filed the appellant sought  an  amendment  of the  plaint  for  introduction  of paragraphs  19-A  and  this amendment  the  appellant  while reiterating that the tendersmade  by the appellant of  the Mills Pucca Delivery Orders as mentioned in paragraphs 9, 14 and  18  of  the  plaint were duly  made  in  terms  of  the contracts  between  the parties, further  pleaded  that  the delivery   orders  tendered  in  respect  of  the   contract mentioned  in  the  plaint were and are  proper  tenders  by virtue  of  trade  customs and usage of the  Jute  Trade  in Calcutta.  The particulars of the customs and usage were set out  in four sub-paragraphs of Paragraph 19A of the  plaint. In  Paragraph 19B the appellant alleged that the  respondent was at all material times fully aware of the aforesaid Trade customs and usages and dealt with the appellant on the basis thereof.   An additional written statement was filed by  the respondent  on 9th December, 1957, in which he  denied  that the  alleged tenders or any of them or the alleged  delivery orders or any of them were in terms of the contracts between the  parties.   It  was  contended  that  the  Mills’  Pucca

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Delivery  Orders were not delivery orders at all and in  any event  the  appellant bad no title to any of them.   It  was also  contended  that the delivery orders related  to  goods deliverable  under contract between third parties  mentioned in the delivery orders and in any event the goods  mentioned in  the  delivery orders are not goods  of  the  description mentioned in the contracts-between the parties and that when the respondent called for the tender of inspection orders in terms  of  the contracts. the appellant  wrongfully  and  in breach  of  contract  failed and  neglected  to  tender  any inspection  order.  The custom pleaded was also denied.   It was  also  contended  that  the  delivery  orders  were  not transferable   by  endorsement  and  that  there   were   no appropriations  of  the goods relating to  any  contract  or delivery order.  The respondent also denied that the customs or usage ever existed and in any event the customs or  usage is inconsistent with the terms of the written contracts  and that  it  was not right to allege that  the  respondent  was aware  of! any such customs and dealt with the appellant  on that basis. On  the amended plaint and the additional written  statement the  suit  took a new turn and the outcome of the  suit  was considered important 238 for  the jute trade in Calcutta.  On the  amended  pleadings various issues were framed and the litigation has dragged on for  nearly,  25  years.   The matter  was  fought  out  and elaborate  arguments were addressed before the  trial  court and  a  Bench  of  the Calcutta High  Court  and  before  us regarding various questions of facts and law. So far as the original defence to the suit that the contacts were  hit at by the West Bengal Act V of, 1950 is  concerned it was found against the respondent by both the courts below and was not raised before us, The suit as well as the appeal proceeded on the basis of the amended pleadings.  The  trial court framed 7 issues as set out at page 262 of the  printed Paper Book and answered them at page 304.  It found that the contracts  were  not illegal in contravention  of  the  West Bengal Jute Goods Act.  It also found that the tenders  made by  the appellant were not valid and as such the  respondent was  not liable.  Regarding the custom or usage in  Calcutta the trial court found that there was no such custom  proved. It  also  recorded  that  the  appellant  had  no  title  to documents  described as Mills Pucca Delivery Orders.   These findings were confirmed by the appellate court. The Courts below negatived the custom or usage set up by the appellant.  The question mainly is whether the tender of the delivery orders by the appellant is valid. The trail court as well as the appellate court had gone into the question as to whether delivery orders were documents of title  and goods.The trial Judge hold that a delivery  order is not a document of titlenor  that the  delivery  order represented the goods. It was further held that the property in unascertained goods cannot pass and that in any event  as according  to  the delivery order the Mill is not  bound  to recognise  the transfer and as the Mill insisted on  written undertaking  from  the delivery order holder,  the  delivery order is not a document of title,The    appellate    court agreed   with  the  conclusions  of  the  trial  Judge   The correctness  of  the conclusions arrived at  by  the  Courts below has to be considered. The  question whether the delivery orders are  documents  of title  and  whether  there  can be  documents  of  title  in relation  to  unascertained goods loomed  large  before  the courts  below.  The view taken was that the delivery  orders

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are  not  documents  of title and that  there  could  be  no document of title in relation to unascertained goods. The "document of title to goods" is defined in section  2(4) of the Sale of Goods Act, 1930, as follows :-               "2. (4) "document of title to goods"  includes               a  bill  of leading,  dock-warrant,  warehouse               keeper’s       certificate,       wharfingers’               certificate, railway receipt, warrant or order               for  the  delivery  of  goods  and  any  other               document  used  in  the  ordinary  course   of               business as proof of the possession or control               of  goods,  or authorising  or  purporting  to               authorise,   either  by  endorsement   or   by               delivery,  the possessor of the  document.  to               transfer    or    receive    goods     thereby               represented;"               239 It  is an inclusive definition and after enumerating a  bill of  lading,  dock-warrant, warehouse  keeper’s  certificate, wharfingers’  certificate, railway receipt, it  proceeds  to include  in the definition warrant or order for delivery  of goods and any other document used in the ordinary course  of business  as  proof  of possession or control  of  goods  or authorising or purporting to authorise either by endorsement or by delivery the possessor of the document to transfer  or receive  goods thereby represented.  The second part of  the definition  would  include any other document  used  in  the ordinary  course  of  business as  proof  of  possession  or control of goods.  It would further include an authorisation either by endorsement or by delivery which would enable  the possessor  of  the document to transfer  ’Or  receive  goods thereby represented.  The definition is silent as to passing of title.  It would include an order for delivery of  goods. A document which is used in the ordinary course of  business as proof of possession would satisfy the definition as  also a  document which would enable the possessor to receive  the goods thereby represented.  The transfer of title is  there- fore  hot relevant.  It may be noted that while  "goods"  is defined  meaning  every kind of movable  property  "specific goods"  is  defined as meaning goods identified  and  agreed upon at the time a contract of sale is made.  A document  of title to goods need not be confined to specific goods for it may relate to goods which are not specified.  Section 18  of the  Sale  of  Goods  Act provides that  where  there  is  a contract for the sale of unascertained goods, no property in the  goods is transferred to the buyer unless and until  the goods  are ascertained.  This section states the  effect  of the  contract  and as to when exactly the  property  in  the goods  is transferred the buyer.  The property in the  goods no  doubt is not transferred to the buyer unless ’and  until the goods are ascertained but the contention that unless  by the.  document the property in the goods passes there  could be  no document of title cannot be accepted, Chapter III  of the  Sale  of Goods Act relates to transfer of  property  as between  seller and buyer but that would not help in  deter- mining whether a particular document is a document of  title to  goods or not.  An order for the delivery of goods  comes under  the definition document of title to goods.-  It  does not  require  an order for delivery of specific  goods.   So also  a document used in the ordinary course of business  as proof of possession or control of goods and not  necessarily specific  goods would come under the definition.  Equally  a document  authorising  the  possessor  of  the  document  to transfer  or  receive goods thereby represented  will  be  a document of title to goods.

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The  nature  of a delivery order of the  Indian  lute  Miffs Association  has been dealt with by decisions of courts  and may  be  referred  to.  In Anglo-India  lute  Mills  Co.  v. Omademull(1)  the- court was dealing with a  delivery  order and  a  common  form of contract used  by  the  Indian  Jute Manufacturers  Association.   Clause 3 of  the  contract  is similar  to the clause in the present contract and  runs  as follows :-               " Payments to be  made in cash in exchange  of               delivery  order  on  sellers  or  for  Railway               Receipts.  or for Dock Receipts or  for  Mates               Receipts (which Mates Receipts are to be  ban-               ded   by  Ships’  Officer  to   the   Sellers’               representative)"               (1) I.L.R. 38 Cal. 127. 240 The  Court  found that it was established in  evidence  that delivery  orders  of the nature of the one in  suit,  passed from  hand  to hand by endorsement and were sold  and  dealt with in the market; that according to the invariable  course of  dealing in the Calcutta jute trade delivery orders  were only  issued  on cash payment, and were dealt  with  in  the market  as absolutely representing the goods to  which  they related and free from any lien of the seller.  In  Duni Chand Rataria v. Bhuwalka Brothers Ltd.,(1)  while considering  the  provisions of the West Bengal  Jute  Goods Future Ordinance, 1949, this Court referred to the terms and conditions  of  the standard form of the Indian  Jute  Mills Association  contracts.   Clause  (3)  of  the  contract  is similar to clause 3 of the present contract and provided for payment to be made in cash in exchange for delivery  orders. The  Court  found that in respect of the  goods  deliverable under  the contracts the mills would, in the case  of  goods sent  by  them alongside the vessel in accordance  with  the shippers’  instructions in that behalf, obtain  tile  mate’s receipts  in  respect of the same and such  mate’s  receipts would  be  delivered  by the mills to  their  immediate  buy buyers  who  in  their  turn would pass  them  on  to  their respective buyers in the chain of contracts resting with the ultimate  shipper.   If the mills held the  goods  in  their godown  they  would issue delivery orders on the  due  date, which delivery orders would be dealt with in the same manner as  the  mate’s  receipts aforesaid.   Both  these  sets  of documents  would represent the goods and would be passed  on from seller to buyer against payment of cash.  It  proceeded to  observe  that as a matter of fact on  the  evidence  the trial  Judge  held that in the Calcutta  jute  trade  mills’ delivery  orders are ordinarily issued by the mills  against cash  payment and pass from hand to hand by endorsement  and are used in the ordinary course of business authorising  the endorser to receive the goods which they represent and  that they   are  dealt  with  in  the,  market  as   representing presentingthe goods and being passed on from seller  to buyer against payment ofcash and the delivery orders issued by the mills   against cash payment are passed on from  hand to  hand  by endorsement being received  by  the  successive buyers  against  cash payment and are used in  the  ordinary course  of business authorising the endorse, to receive  the goods  which  they  represent.  The  Court  found  that  the manufacturer of jute goods does not come normally in  direct contract with the shipper and it is only through a chain  of contracting parties that the shipper obtains the goods  from the  manufacturer and if only actual delivery of  possession as contrasted with symbolical or constructive delivery  were contemplated  it would be impossible to carry on  the  busi-

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ness.   In  conclusion  this Court held  that  the  delivery orders  represented  the goods and the sellers  handed  over these documents to the buyers against cash payment, and  the buyers  obtained  these documents in token  of  delivery  of possession  of  the  goods.   They  in  turn  passed   these documents  from  hand  to hand until they  rested  with  the ultimate  buyer  who  took physical or  manual  delivery  of possession  of those goods.  In the view that  the  delivery orders represented the goods this Court did not go into  the question whether the delivery orders would (1)[1955] 1 S.C.R. 1071. 241 be  documents  of title under section 2(4) of  the  Sale  of Goods  Act.  The trial court distinguished this case on  the ground ’chat it was not questioned before the Supreme  Court that  a Mills pucca delivery order was a document  of  title and  in  any event there is no decision  that  the  delivery order  is a document of title.  The ground on which  Supreme Court’s  decision  was held to be not applicable  cannot  be supported  for  this  Court has  definitely  held  that  the delivery  order represents the goods.  The  appellate  court held  the  decision  of the Supreme  Court  as  inapplicable because  there  was no evidence as to what were  the  actual terms  of  the contract or as to the  terms  and  conditions which were to be fulfilled by the intermediate buyer at  the time when the actual delivery of the goods was sought to  be taken  from  the  mills.  The reference  to  the  terms  and conditions  which were to be fulfilled by  the  intermediate buyer refers to the requirement that the buyer should  apply for  registration ,and to give an undertaking that he  would be bound by the terms of the contract between the mills  and the  original  buyer  and  that the  mills  would  not  give delivery of the goods under delivery orders unless his  name was so registered.The  reference to the  conditions  would ,be dealt with later. In  Bayyana Bhimyya v. The Government of Andhra  Pradesh,(1) the question related to the liability to pay sales-tax.  The appellant ,entered into contract with the Mills agreeing  to purchase gunnies at a certain rate for future delivery.  The appellant also entered into agreements with the NM by  which the  Mills agreed to deliver the goods to third  parties  if requested  by the appellants.  Before the date  of  delivery the appellants entered into agreement with third parties and handed over to them the delivery orders which were known  as kutcha delivery orders.  The Mills used to deliver the goods against kutcha delivery orders.  The tax authorities treated the  transactions  between  the  appellants  and  the  third parties as a fresh sale and sought to levy sales-tax  again, which the appellants contested.  This Court held that so far as  the  third parties are concerned they did  purchase  the goods  by payment of extra price, and the transaction  must, in  law  and in fact, be considered a fresh  transaction  of sale  between the appellants and the third parties.  It  was held  that  the delivery order was a document  of  title  to goods  under section 2 (4) of the Sale of Goods Act and  the possessor of such document has the right not only to receive the goods but also to transfer it to another by  endorsement or delivery.  There being two separate transactions of sale, tax  was  payable at both the points.  The  kutcha  delivery order  was held to be a delivery order as the  possessor  of such a document has the right not only to receive the  goods but  also  to  transfer  it to  another  by  endorsement  or delivery. The question whether the goods were ascertained or not was not considered in the case. In Jute and Gunny Brokers Ltd. and Another v. The Union of

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India  and  Others(2) this Court approved the  view  of  the Calcutta  High  Court  in  Anglo-India  Jute  Mills  Co.  v. Omademull(3) that the (1)  [1961](3) S.C.R. 267. (2)  [1961] (3) S.C.R. 820. 242 delivery  orders are regarded by the trade as owners of  the goods  specified therein and the pucca delivery orders  pass from hand to hand by endorsement and are sold and dealt with in the market as absolutely representing the goods to  which they relate.  On that basis the Court proceeded to  consider the question whether the property in the, good-, represented by  the pucca delivery orders can be said to have passed  to the  holder of the pucca delivery orders when  they  receive them  and answered the question that the title did not  pass when  there was no ascertainment of goods and only when  the ascertainment   of   goods  takes  place   the   goods   are appropriated  to  the pucca delivery orders at the  time  of actual  delivery.   It  is  clear  therefore  that  while  a delivery  order  would be a document of title to  goods  the property  in  the  goods  will  not  pass  in  the  cast  of unascertained  goods- till ascertainment takes  place.   But that would not affect the question of the document of  title to  goods being transferred and delivered and confer on  the possessor of the document a right to transfer or receive the goods thereby represented. In the Slate of Andhra Pradesh v. Kolla Sreerama  Murthy,(1) the question that arose was whether a person who instead  of taking  delivery  himself endorsed the delivery  orders  and these pass through sever hands before the ultimate holder of the  delivery order presented it  to the Mills and  obtained delivery  of the gunnies from them was liable to pay  sales- tax.   This  ’Court held that as the goods which  were  sub- ject  matter  of the purchase were not appropriated  to  the contract  there  was  no completed sale  since  no  property passed but only an agreement of sale.  But applying the rule in  Butterforth v. Kingsway Motors Ltd.,(2) that though  the purported  sellers  in a long chain of  transaction  had  no title to it at the times when the purported sales took place but  when  the last buyer made payment and acquired  a  good title and the title so acquired went to feed the  previously defective  titles  of the subsequent buyers and  ensured  to their benefit.  This decision was rendered when  considering the  question whether there was sale at every stage  and  it was  held that if there was no delivery of the goods to  the last  holder  of the delivery, order the  entire  fabric  on which  the  case rested would disappear.  But  the  question that  arises  for  consideration before us  is  whether  the delivery order would be construed as a document of title  of goods   which  could  be  transferred  on  endorsement   and delivered  and  the fact that whether there was  a  sale  at every stage or not would not affect the question. The High Court on appeal held at page 351 of the Paper  Book that in view of the restrictions in the terms and conditions regarding  the delivery orders, the buyer cannot be said  to be  in the ordinary course of business put in possession  or control  of  the  goods as they  are  unascertained  and  as control  over the goods can only be had on  registration  of the  buyer’s  name on giving his  undertaking.   It  further observed  that the possessor of the document cannot  receive the  goods as under section 18 of the Act title cannot  pass in  unascertained  goods.  The view of the High  Court  that there could be no document (2)  [1954] 2 All E.R. 694. 243

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of  title  regarding unascertained goods is erroneous  on  a construction of the definition of "document of title".   The document of title to goods need not be confined to  specific goods and as long as the possessor ofthe  document  could receive the goods the requirement is completed. The  passing of the title after ascertainment of goods is not relevant in determining  whether the document is a document of title  to goods. The other reason for holding that the buyer  under the  delivery order is not entitled to possession as he  had to  register his name and give an undertaking will be  dealt with in due course. In  this  view the plea of the appellant that  the  delivery orders  tendered  in  respect of the  contracts  are  proper tenders  would have to be accepted if the possessor  of  the documents  is  entitled  to transfer or  receive  the  goods thereby  represented.   In this connection it may  be  noted from  Anglo-India  Jute  Mills Co.  v.  Omadenull,  (1)  the practice  in  the  jute  trade by  the  Indian  Jute  Mills’ Association  has been recognised.  The practice  of  issuing delivery  orders in pursuance of clause similar to clause  3 in  the  contract has also been  recognised.   The  delivery orders  that passed on from person to person by  endorsement and  delivery were construed as documents  representing  the goods  by this Court in, (1955) 1 S.C.R. 1071  (supra).   It was  also recognised in Bayyana Bhimayya v, Govt. of  Andhra Pradesh  (2) that deliver y orders are documents  of  title. The  delivery  order  if it satisfies  the  requirements  of section  2(4)  either  by the document being  an  order  for delivery of goods or used in the ordinary course of business as  proof of possession or control of goods, or  authorising or  purporting  to authorise, either by  endorsement  or  by delivery,  the  possessor  of the document  to  transfer  or receive goods thereby represented, it would become "document of title to goods".  That the delivery order is used in  the ordinary  course  of  business as proof  of  possession  and transferable   by  endorsement  or  by  delivery  has   been recognised  by  Courts.   The  only  question  therefore  is whether  the requirement of section 2(4) has been  fulfilled in  that  the  delivery  orders  which  were  given  to  the respondent would have enabled the possessor of the documents to  transfer or receive the goods thereby represented.   The respondent’s main attack against the delivery orders is that the  possessor of the documents could not receive the  goods unless  he fulfilled the conditions, namely that  he  should register  with  the Mills, and sign an  undertaking  to  the Mills  agreeing  to be bound by the terms  of  the  contract between the original buyer and the seller.  The Mill is  not bound  to recognise the buyer.  The trial court as  wall  as the  appellate court found that these  conditions  negatived the  plea  of  the appellant that the delivery  order  is  a document of title to goods which would enable the  possessor to  take  delivery of the goods.  It is  clear  that  before obtaining   possession  the  conditions  will  have  to   be satisfied and therefore it is not an unconditional order for delivery and therefore will not satisfy the requirements  of a  delivery order.  It may also be noted that the  appellant has  not  succeeded in establishing any custom or  usage  or practice  in the jute trade that delivery orders  with  such conditions are being accepted.  Neither have the decision of courts recognised any such practice. (2)  [1961] (3) S.C.R. 267 at 270. 3-1114 SCI/77 244 These objections appear to be insurmountable and the  courts below took the view that the appellant cannot succeed as the

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delivery  order  is not unconditional and therefore  not  in accordance with the contract.  On a careful consideration of the,  records  and hearing the arguments of the  counsel  it appears,  that one important aspect was not duly  considered by the Courts below.  The plea of the appellant is that  the delivery  order is in accordance with the contract and  that the   respondent  knew  that  the  delivery  order  was   in accordance with the contract and that he wanted to avoid the contract as the prices had fallen without any justification. The  contents of the plaint have been set out at  length  at the  beginning  of the judgment.  It may be noted  that  the appellant and the respondent entered into several contracts. The  first 3 contracts were entered into on  22nd  November, 1st  December  and 10th December, 1951. Under  each  of  the contracts goods were to be delivered in April, May and June. The rates specified are Rs. 206/. per 100 bags according  to the  first contract, Rs. 210/4/- per 100 bags and Rs.  216/- per 100 bags respectively.  At the commencement of the first period  of  delivery in April, 1952, it was found  that  the rate  had fallen to Rs. 1551- per 100 bags.  The  margin  in the  three  deliveries due in April under  the  3  contracts resulted  in a loss of about Rs. 50,175 to  the  respondent. That this contract was under Indian Jute Mills’  Association was  not  disputed and accepting its full  implications  the respondent  paid  the  amount  under  settlement  contracts. Regarding  the delivery due in the month of May under the  3 contracts there was a Sold and Bought note exchanged between the  parties  whereby the respondent agreed to sell  to  the appellant   and  the  appellant  agreed  to  buy  from   the respondent  90,000  bags of B Twills at Rs. 136/- per  1  00 bags.  It may be noted that the price had come down  further from  Rs. 1551- in April to Rs. 136/- in May.  There was  no protest  and  for  the  month of May  also  the  goods  were delivered by the appellant to the respondent and back by the respondent to the appellant.  Due to the fall in prices  the appellant claimed Rs. 67,275/- and a decree had been  passed so far as that claim was concerned by the trial Court  which has  become  final.  While the contract was accepted  and  a settlement contract was affected on the basis of delivery of goods by the appellant as regards April and May the  dispute is  as  regards the goods deliverable in June  under  the  3 contracts.   Regarding  all  the 3  contracts  the  first  2 deliveries due in April and May have not been disputed.  For the  delivery of goods under the 3 contracts in June,  1952. it is alleged in the plaint in Paragraph 9 as follows               "The plaintiff further states that in  respect               of the Contracts     mentioned in paragraph  3               above  the defendant failed and  neglected  to               pay for and/or to take delivery of thegoods               which  were  deliverable under  the  aforesaid               contractsin  June 1952.  The plaintiff  duly               and  in  terms of the  contract  tendered  the               Delivery  Orders in respect of the said  goods               in respect of June Delivery but the  plaintiff               wrongfully  failed  and  neglected  to  accept               and/or to pay for the same." This is the crux of the appellant’s case. The answer to this case is found in Paragraph 6 of the written statement  which is as follows 245               "The   defendant   denies   each   and   every               allegation contained in paragraphs 9, 1 0  and               1  8 of the plaint as if the same is  set  out               seriatim  and specifically denied.  The  facts               and/or  validity of the alleged tender  and/or

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             the  alleged resale and or the alleged  notice               are denied." In  the written statement that was filed on  22nd November, 1952,  the plea was that the respondent discovered that  the Bought and Sold notes and contracts were and are invalid and void as they were in contravention of the provisions of  the West  Bengal Act V of 1950.  While there is a  challenge  to Bought  and Sold notes and contracts as being void there  is no  challenge  as to the validity of  the  delivery  orders. While  the allegation in Paragraph 9 is specifically  denied it  does  not  say whether there was or there  was  not  any tender  of delivery orders and whether the  delivery  orders were  in accordance with the contract or not.  Much less  is there any reference to the delivery order requiring that  it should be registered with the Mill or that an undertaking to abide  by the conditions was insisted upon in  the  delivery order.   In the amended plaint Paragraph 19A was  introduced wherein the appellant reiterating that Mills’ pucca delivery orders  were  made  in terms of the  contracts  between  the parties  proceeded to state that in any event  the  delivery orders  were proper tenders by virtue of trade  customs  and usage  of  the Jute Trade in Calcutta.   In  the  additional written  statement  filed  on 9th  December,  1957,  further particulars  in  reply to Paragraph 19A of  the  plaint  are given in Paragraph 2- It is stated that the delivery  orders are not in terms of the contracts and that the appellant had no  title to them.  It is further stated that  the  delivery orders on the face of them relate to goods deliverable under co  acts  between  third  parties,  mentioned  in  the  said delivery  orders, that the goods are not of the  description as  mentioned in the contracts and that when the  respondent called  for  the  tender  of  inspection  orders appellant neglected to tender any.  In Paragraph 4 it was stated  that the  delivery orders were not transferable  by  endorsement. Though  the opportunity provided by the amended  plaint  was availed  of  for challenging the validity  of  the  delivery order  which was not done in the original written  statement the  challenge to the delivery order is not based on any  of the  grounds  which  ultimately found  acceptance  with  the courts  below,  namely  that  the  delivery  order  required registration  with the Mills and required the  possessor  of the  document to give an undertaking that he would abide  by the conditions and that the Mill was not bound to  recognise the transfer. The burden is no doubt on the appellant to prove his casebut the  parties  to  the  suit  are  bound  by  the   procedure prescribed inthe  Code  of Civil Procedure. Order VIII  of the Civil ProcedureCode  requires what a written  statement should contain. Order VII,Rule 2.   requires  that   the defendant must raise by his pleading all matters which  show the suit not to be maintainable, or that the-transaction  is either  void  or  voidable in point of  law,  and  all  such grounds  of  defence as, if not raised, would be  likely  to take  the opposite party by surprise.  Rule 3 requires  that it  shall not be sufficient for a defendant in  his  written statement  to  deny  generally the grounds  alleged  by  the plaintiff.  but  the defendant must deal  specifically  with each allegation of 246 fact  of which he does not admit the truth, except  damages. Though  the respondent did not question the validity of  the delivery  order at the first instance he was it  liberty  to question  it when he filed the additional written  statement and  to  raise A grounds of defence to the validity  of  the delivery order.  The failure to question the validity of the

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delivery  order on the ground that it required  registration with  the  Mill or that the possessor was bound to  give  an undertaking would be failure to comply with the requirements of Order VIII.  The pleadings were before the Original  Side of  the Calcutta High Court and the courts  have  recognised that  the pleadings of the Original Side of the  High  Court must be strictly construed. in Badat and Co., v. East  India Trading   Co.,(1)   this  Court   observed   regarding   the requirements  of  the written statement  under  Order  VIII, Rules 4 and 5, as follows               "  These three rules from an  integrated  code               dealing  with the manner in which  allegations               of fact in the plaint should be traversed  and               the  legal consequences flowing from its  non-               compliance.   The written-statement must  deal               specifically  with each allegation of fact  in               the  plaint  and when a defendant  denies  any               such  fact, he must not do so  evasively,  but               answer the point of substance.  If his  denial               of  a  fact is not specific but  evasive,  the               said  fact shall be taken to be admitted.   In               such  an  event, the. admission  itself  being               proof, no other proof is necessary." The  respondent  had ample opportunity to  put  forward  his objections to the delivery order in the correspondence  that was  exchanged  between  the  parties  or  in  the   written statement  as  originally  filed.   The  additional  written statement  of course, gave another opportunity but  even  in this respondent has failed to put forward the grounds  which he  is  in law required to do.  On the pleadings  itself  it appears.  that the defence is without substance and  belated and  put forward for the purpose of escaping the  liability. The  three delivery orders regarding B Twill deliverable  in June   on  the  first  three  contracts,  and   of   hessian deliverable in June and regarding the last contract by which B  Twill  was deliverable in June, the  respondent  did  not receive the delivery orders.  He did not wait to see whether the  delivery orders were according to the contract or  not. Though  the respondent is entitled to raise  all  objections open  to  him  under law that the delivery  orders  are  not according to contract, his not receiving the delivery orders and not raising the plea specifically is more in  accordance with  his  having been satisfied with  the  delivery  orders being  according to contract and his refusal to  accept  the delivery orders was to avoid the loss due to fall in  price. This  conclusion  is  strengthened by his  conduct.   The  3 contracts  specified  in  Paragraph 3  of  the  plaint  were entered into in November and December, 1951, for delivery of goods  in April, May and June, 1952.  The 3  contracts  were accepted and proceeded with regarding April and May delivery in  that the validity of the contracts, the delivery by  the appellant  and the delivery back by the respondent  are  all admitted and the appellant was awarded a decree accordingly. The  dispute as already pointed out is, regarding  the  June delivery and (1)  A.I.R. 1964 S..C. 538. 247 the  plea that the delivery orders in respect of  the  goods relating to June delivery were in terms of the contract  was not  specifically  denied. There were  several  transactions between the appellant and therespondent   which   will   be referred to presently and the contractswere entered into in the  standard  I.J.M.A.  Contract forms.  The  fact  that  3 contracts relating to two deliveries have been accepted show that the respondent was following the practice prevalent  in

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Calcuttaby respondent agreed to buy from the appellant and the  appellant  agreed to sell to  the  respondent  3,00,000 yards  of hessian at Rs. 74/- per 100 yards  deliverable  in equal installments in April, May and June.  It is alleged in Paragraph  14 of the plaint that he had duly  delivered  the deliveryorders  and  the  respondent  paid  for  and  took delivery of the same.    But   the   respondent   wrongfully failed and neglected to pay and takedelivery  of   pucca Mills Delivery Orders relating to goods deliverablein May and June, 1952. In the written statement the  respondent stated  that the delivery orders delivered by the  appellant were paid for and taken delivery of by the respondent before the  relevant contract was discovered to be void.         In the  written statement the respondent did not deny that  the appellant  duly  delivered  the  delivery  orders  and   the respondent  paid  for  and took delivery  of  the  same  but pleaded that he paid and took delivery before he  discovered that the relevant contract was void.  It is significant that the attack was on the contract on the ground that it  became void because of the West Bengal    Act V of 1950.  There  is no  challenge against the delivery order. The contention  of the appellant that the delivery   orders relatingto     the present  suit  were  the usual delivery  orders  which  were prevalent  in the Jute Trade in Calcutta  appears  probable. No  specific plea that the delivery orders relating  to  the suit were different from the deliveryorders   which   the respondent accepted regarding the April delivery wasraised nor  was  it contended that the delivery  orders  which  lie accepteddid   not  contain  the   restrictions   requiring registration   and  giving  of  an  undertaking.    In   the additional written statement there is no specific  reference to Paragraph 14 of the plaint. Another contract was entered into between the appellant  and the  respondent on 19th April, 1952, whereby the  respondent agreed to buy from the appellant and the appellant agreed to sell to the respondent 90,000 bags of B Twills at Rs.  155/- per 100 bags deliverable in June, 1952.  The contract was in the  Standard I.J.M.A. Contract Forms.  In Paragraph  18  of the plaint it is alleged that on the due date the  plaintiff duly  tendered the pucca Delivery Orders in respect  of  the goods  deliverable in June, 1952, and the respondent  failed and  neglected to accept and pay for the  goods.   Regarding this  contract  the defence in the written statement  is  in Paragraph  6  where  it is stated  that  "the  facts  and/or validity  of  the alleged tender and/or the  alleged  resale and/or  the  alleged  notice  are  denied".   There  is   no reference  about the transactions in the additional  written statement. ’raking into account the fact that the appellant as well  as the respondent were engaging themselves in the Jute Trade in Calcutta  and were following generally the practice  of  the Jute   Mills  Association  and  had  entered  into   various contracts and having business relationship, 248 the conclusion seems to be irresistible that the  respondent was familiar with the delivery order with its conditions and accepted  it  as  being in use in  the  ordinary  course  of business.   It  is  difficult to accept the  plea  that  the delivery order was not negotiable or that it was not in  the terms of the contract and that it would not have enabled him to take possession of the goods as he had to fulfill certain other conditions as getting himself registered with the Mill and   giving  an  undertaking  as  required.    From   these circumstances  it  is clear that the  delivery  orders  were according  to the terms of the contract and  the  respondent

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himself  was  aware  of them.  The plea  that  the  delivery orders are not in accordance with the contract and that  the conditions imposed amount to a new agreement are all belated pleas put forward to avoid the liability. This aspect of the case was not brought to the notice of the trial  Judge  and the appellate court.   The  learned  trial Judge  held  that the appellant had not raised any  plea  of estoppel  and  therefore cannot rely on the failure  of  the respondent to point out the defects in the delivery observed as follows :                "The plaintiff’s contention was that under the               contract   the  tender  of  delivery   orders,               namely,  Mill  Pucca Delivery  Orders,  was  a               valid tender according to the contract and in,               any event was proper tender by virtue of trade               customs and understood andaccepted  Mills               pucca delivery orders as delivery ordersand               that  the defendant had accepted mill’s  pucca               delivery   orders  and  paid  therefore   with               respect   to  certain  deliveries  under   the               contracts in question.  It was also  contended               on behalf of the plaintiff that in some of the               correspondence  the defendant alleged that  as               the  plaintiff failed to tender  mill’s  pucca               delivery  orders, the contract  was  cancelled               and,    therefore,    there   was    in    the               correspondence never any contention on  behalf               of  the defendant that mill’s  pucca  delivery               orders  were  not proper tender.  No  case  of               estoppel  was pleaded and I am,  therefore  of               opinion  that the plaintiff cannot  raise  any               such plea of estoppel." The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent.  The pleadings  as well  as  the conduct lead one to the  conclusion  that  the delivery  orders were in accordance with the contract  which the respondent accepted, as Mills’ pucca delivery orders. In  the  result apart from the questions of law  which  have been  discussed in full by all the courts the  appellant  is entitled  to  succeed  on  the simple  ground  that  he  has established that in the cases in dispute the delivery orders were in accordance with the contracts.  The is allowed  with costs.                            ORDER In  view of the majority judgment, the appeal  is  dismissed with costs.  P.H.P. 249