1. The parties in this case are two firms of groundnut merchants, plaintiffs doing business in Guntur and defendants in Ongole. On 1st January J931 they entered into a contract by which plaintiffs were to purchase from defendants 318 bags of groundnuts at Rs. 6-12-0 per bag to be delivered on the 25th January. It is common ground that the time for delivery was subsequently extended to 20th February. Delivery however was not to be made to the plaintiffs themselves, but to one of four exporting companies referred to in the contract, and plaintiffs had to send to the defendants at least six days before the due date what is known as a transfer form.' On this transfer form would be intimated the name of the firm to which the groundnuts were to be delivered.
2. The case of the plaintiffs is that they sent on the 12th February a registered letter to the defendants in which they intimated that delivery was to be made to Strauss & Co. at Guntur, and that that letter was refused by the defendants. On the same day the plaintiffs say that they wrote to Strauss & Co. to inform them that the defendants would make the delivery, and to request them to take delivery and make payment to the defendants. Delivery was not made by the defendants and the plaintiffs sued them for damages. Their suit was dismissed and they have accordingly filed this C. E. P. On the issue of fact the judgment of the learned Subordinate Judge can hardly be called satisfactory. Both the registered letter and the letter to Strauss & Co. were produced. There can be no doubt whatever that the former was despatched on the date mentioned by the plaintiffs and was correctly addressed. It bears the endorsement 'refused' in English, but no one has initialed the endorsement. The Subordinate Judge holds that as no postman has been examined there is no proof that the letter was refused. The second letter was produced by a member of the establishment of Strauss & Co., but as it boars no seal or stamp of the company or any initials in token of receipt the Subordinate Judge holds that there is nothing to show that it was sent to the company. Now this appreciation of evidence might perhaps be appropriate in a criminal prosecution where every point must be proved against an accused beyond reasonable doubt, but it is hardly adequate in the present suit.
3. The Subordinate Judge does not venture to press his findings to their logical conclusion. If the second letter were not sent it must have been fabricated for the purposes of this suit; if the first were not refused there must have been some collusion between the plaintiffs and the postal authorities in Ongole, or some quite extraordinary neglect of duty on the part of some postman. I can see nothing whatever in the case to suggest either fabrication, collusion, or neglect of duty. The registered letter was undoubtedly sent on 12th February; defendant 2 in his evidence adrmts that he was at home on the day when it would normally have been delivered; he also admits that if he had made delivery according to the contract rate he would' have suffered a loss; and in April 1931,. when plaintiffs sent another registered letter claiming damages, that letter also was returned as refused. My impression after having the case argued is strongly in favour of the plaintiffs on the question of fact, and I have dealt with this question at some length in order to clear the plaintiffs of the charge of dishonest dealing, which would appear to be implicit in the learned Subordinate Judge's-judgment.
4. On the question of law, however, the learned Subordinate has held that by not sending a 'transfer form' to the defendants the plaintiffs have broken the contract, and it seems to me that this decision is right and must be upheld. It has been argued strenuously on behalf of the plaintiffs that they have done nothing to the real detriment of the defendants, and that their departure from the letter of the contract is no breach of any essential term of it. The sole purpose, it is said, of the transfer form is to intimate to the defendants the name of the particular firm to whom delivery is to be made, and to guarantee payment by that firm, and this intimation and this guarantee are sufficiently contained in the two letters already referred to. There is much to be said for this view of the situation. I can think of no commercial advantage to be gained by the course which the plaintiffs took, and it seems to me that if the defendants had taken the registered letter and gone to Strauss & Co. with the groundnuts the mere absence of a formal document like a transfer form would not have prevented Strauss & Co. in the circumstances of this case, from paying for the groundnuts.
5. But even granting everything that may be said in favour of the plaintiffs on the merits of this case, they are still faced with a decision of a Bench of this Court which, according to the learned Subordinate Judge, must be followed. The decision is Adam Haji Peera Mahamad Ishacjh v. Sakavath Hussian Akbari 1923 Mad 103, and on examining that decision carefully I am of opinion that it deals with a situation precisely similar to the one in the case before me, and is therefore binding on me. The contract in that case was for the delivery of 1,300 bags of sugar in Madras. The sugar was to be shipped from Singapore and the purchaser was to receive a ' delivery telegram' endorsed to him by a vendor. This ' delivery telegram' was intended to announce the actual despatch of the goods from Singapore, but the telegram which was in this case received by the vendor referred to the despatch of more sugar than the quantity referred to in the contract. As the telegram when endorsed and delivered was intended to be used as a document of title to the goods mentioned in it (this being a war-time expedient to provide for the uncertainty experienced in the receipt of bills-of-lading) that particular telegram could not be endorsed to the purchasr. The vendor accordingly lodged the telegram with the steamer agents and arranged for them to tender a delivery order to the purchaser for the amount of his sugar. The purchaser refused to receive it. It was held that if be had received it there would have been no difficulty in his getting the goods on the strength of it; but that when the goods arrived he did not in fact want them.
6. Nevertheless the term of the contract was that he should be given a delivery telegram, and it was held that as he was not given any such telegram, even though the vendor had adopted what is called in the judgment 'an ordinary business solution of the difficulty' there had been a breach of the contract in a most material term. It will now be seen that the two cases are precisely similar. In Adam Haji Peera Mahamad Ishach v. Sakavath Hussain Akbari 1923 Mad 103 the purchaser was to receive a telegram as a document of title, and refused to receive a delivery order which would in the circumstances of the case have had the same validity and effect; in the present case the seller was to receive a transfer form and refused to receive a registered communication which in conjunction with the letter sent to Strauss & Co., would have had the same validity and effect. The decision in Adam Haji Peera Mahamad Ishach v. Sakavath Hussain Akbari 1923 Mad 103 must therefore govern my decision here and the Civil Revision Petition must be dismissed with costs.