Victor Murray Coutts-Trotter, C.J.
This case is really governed by the decision of the House of Lords in British & Beningtons Limited v. N.W. Cachar Tea Co., Ltd. (1923) A.C. 48 : 92 L.J.K.B. 62 : 128 L.T. 422 : 28 Com. Cas. 265. As I understand that case, it lays down that a seller is not to be defeated merely by its being shown that after repudiation by the buyer, he had not the goods to implement the contract actually in his physical possession. He can show that he could supply the goods contracted for either from the open market or from any other source and he would be entitled to maintain a suit for damages for wrongful repudiation.
2. In this case the contract was that the buyer should take the goods between the 20th and the 30th of April 1919. He did not’ do so and he set up & false defence that he sent two men to take delivery within the contract period. Those two men were called and gave evidence and the learned Judge refused to believe them. No Judged sitting as a Jury would have believed them because the seller wrote on 28th April 1919 reminding the buyer that the date of effluxion of the contract was drawing near and the buyer (plaintiff) did not answer that until as late as 6th May 1919 when he set up this lying story about the two men having gone for the rice and being sent empty away. Now a point bad been taken in this Court by Mr. Patanjali Sastri, which is certainly ingenious, and it is this, that on the evidence before the Court which we have in form of depositions it was never proved by the seller that the goods he had were goods which corresponded to the description of the goods to be sold, it being common knowledge of course that there are different brands and different qualities of rice, and indeed, different qualities were mentioned at the trial. Two witnesses were asked whether. they knew, what sort of rice it was that.-the defendant proved to the learned Judge that he had at Ellore, and they spoke of.; some rice in somebody’s godown and ,of some more that he could have got delivery of against cash from the. Bank. Of course the people who were asked those questions replied–there is no doubt that the Vakil knew that they would reply that they did not know. But unfortunately there is not a trace of that suggestion as to the quality not being right having been put to the defendant himself, the seller, who knew all about it. We are not to forget that the buyer’s case at the trial was that he was entitled to have damages because he had asked for delivery and had not got it. In my opinion, it would be quite wrong to act on a suggestion of this kind when it is clear that the defendant was never given a fair chance of explaining it at the trial.
3. The buyer’s appeal (A.S. No. 195 of 1923) will, therefore, be dismissed with costs.
4. With regard to the seller’s appeal (A.S. No. 141 of 1923) he says first that, having got a deposit and there having been a failure by the buyer to take delivery, he ought, to keep the deposit. His own original suggestion was that he should return the deposit less whatever he is entitled to by way of damages. I can content myself with saying that it is never the practice in mercantile contracts, to hold that whatever be the damage suffered or not suffered, the seller is to be entitled to keep the deposit. He is only entitled to such damages as the learned Judge sitting as a Jury has suggested, namely, 12 annas, a bag, and I do not think we ought to interfere in a matter which is eminently one for the Trial Judge.
5. With regard to interest, it sounds plausible to say, as Mr. Varadachariar has argued, that a person who is in default cannot possibly be heard to say that he is entitled to claim interest from the other side. The answer to it is the one that the learned Judge has given namely, that the seller should have made calculation of the damage he has actually suffered and tendered, the return of the balance to the buyer. No doubt it puts a man in a difficulty and if he goes ultimately into a Court of Law he weight have to justify his fixing the figure as best he could. But I take it that almost any tribunal would have an indulgent eye on the arithmetic of a man who adopted that straight-forward course. In the result the seller had the buyer’s money in his hands for a good many years to the amount of the excess between what the Judge has allowed by way of damages and the amount of the deposit which Was Rs. 4,001. I think here too the judgment, of the learned Judge must be upheld and this appeal also will be dismissed with costs.
6. I agree.