Law:

Section:

(a) Civil Procedure Code (V of 1908), S. 100-Second appeal-Particular interpretation of a clause of a contract---­Court not barred by finding arrived at by lower appellate Court. (b) Sale of Goods Act (III of 1930), S. 11-When time is essence of the contract. A condition, according to section 12 of the Sale of Goods Act, is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. A stipulation which is collateral to the main purpose is merely a warranty the breach of which gives rise to a claim for damages but not to a right to treat the contract as repudiated. On the 30th March 1950, the Co-operative Multipurpose Society, Gojra, agreed to supply a thousand bags of cotton seed to Sayyed Mahmud Hussain Shah at the rate of Rs. 9-12-0 per bag, receiving Rs. 500 as advance. The bags were to be removed by the vendee up to the 31st May, 1950, against cash payment as and when they were removed. On the 10th April, 1950, when the vendee went to take delivery of some bags, the manager of the society cancelled the contract on the ground that the vendee had failed to make advance payment of a further sum of Rs. 500 which had to be paid by him within a week of the transaction. Held, that the time of payment was not of the essence of the contract in this case and that consequently the plaintiff's failure to pay the further advance did not constitute a repudiation of the contract. If the intention was to remove the' goods from time to time up to the 31st May, 1950 and the contract came into force on the 30th March, the plaintiff had a right of removal from the 30th March, onwards, and since he could have removed the entire goods within a week, payment of a further sum of Rs. 500 as advance money within a week could not have operated as a condition precedent. Martindale v. Smith (1841) 1 Q B 389 ; The Mersey Steel and Iron Co. v. Naylor, Benzon & Co. 9 App. Cas 434 ; Payzu Limited v. Saunders (1919) 2 K B 581 ref. (c) Damages--Contract to deliver goods within a certain time-Vendor refusing to deliver on a prior day when prices are low and vendee not rescinding-Price rising between day of…

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