JUDGMENT
1. It will be convenient first to deal with Appeal No. 334. The plaintiffs and appellants before us were the sellers and they had entered into a contract to deliver to the buyers 60 bales of yarn of various counts. They delivered 2ti bales before 15th November, 1918, when the controversy between the parties arose. The offer is to be found in a letter of the 271h July, Ex. A, accepted by an answer of the 5th August, Ex., II. The terms of the contract are very simple. The bales were to be delivered by the sellers as soon as they got them from the mills which manufactured them and what is called tavanai credit extended to the buyer. That is explained in this way. The mill month runs from the 21st of one month to the 20th of the next, and the period of credit is to the end of the calendar month following that in which the mill month expired; that is to say, for goods delivered by the mill from the 21st September to the 20th October payment will be due on the 30th of the following November. On the 15th of November the sellers wrote announcing that 9 bales had arrived at the mills and were in stock there and the letter says “If you, therefore, pay us Rs. 2,660 being the balance due for the October tavanai and Rs. 21,120 being the balance due for the November tavanai, Rs. 23,780 in all, we shall also pay the amount to the mills, take out the bales and deliver them to you,” We see no answer to the contention that that was a. bad tender, because it did not offer to deliver the goods which were due for delivery unless a condition was complied with which was not in accordance with the original contract. It is clear, therefore, that there never was at this date any valid tender of the 9 bales. With regard to the remaining 23 they were never tendered at all but the sellers’ contention is that they were entitled to cancel the balance of the contract in the events which happened and that they did so by their letter of the 22nd January 1919, Ex. B. It is quite true that in Ex. II we find the position that if payments were not duly made in accordance with the contract, there was a provision for cancellation of all the outstanding part of the contract at the sellers’ option. Assuming that Ex. B. is not merely a threat to cancel but does actually purport to effect a cancellation which the sellers were entitled to bring about as matters then stood, the demand was to pay first a sum of Rs. 23,780 as to which we will assume for this purpose the money was due but it was coupled with the further demand that 9 bales should be paid for which up to date, as we have found, there had been no valid tender. In these circumstances we agree with the learned Judge that the sellers were never in a position to claim damages for non-acceptance of any one of these 32 bales.
2. The other appeal, No. 219 of 1922 relates to the price of the 28 bales which the buyers have had and not paid for. They seek to evade payment by invoking the provisions of Order II, Rule 2 of the C.P.C. What happened was that the sellers brought two suits, one in respect of the 28 bales, as goods sold and delivered and the other in respect of the balance of 32 for damages for non-acceptance. A Full Bench of the Calcutta High Court, Duncan Brothers & Co. v. Jeceimull Greedharee Lal 19 C. 372 : 9 Ind. Dec. (N.S.) 692 giving effect to a prior expression of opinion by Wilson, J has held that, though the two causes of action may be legally different, if the goods are all deliverable under one contract you cannot validly split them into two and bring separate suits in respect of them. Assuming this to be correct, the words of Order II Rule 2(2) are “Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”
3. It is said that the doctrine of the Calcutta High Court can be applied to this case by invoking the authority of the decision in Murti v. Bhola Ram 16 A. 165 : A.W.N. (1894) 65 : 8 Ind. Dec. (N.S.) 106 (F.B.). In this case the facts appear to he that the suits were presented together on the same day and an officer of the Court numbered them respectively as 72 and 73, 72 being the suit for damages for non-delivery of the 32 bales and 73 the suit for the price of the 28 bales sold and delivered. The Allahabad case is invoked as laying down the proposition that the numbering affixed by the Court shall prima facie be conclusive as to the order of time in which the suits were respectively instituted. We are not prepared to assent to that doctrine but would rather hold that the plaintiffs here can confine themselves to Suit No. 72 and have Suit No. 73 dismissed under Order II, Rule 2. It may very well happen that of two suits presented simultaneously one was held for some technical cause for a week or ten days and then would be numbered several -numbers behind the one which was admitted without question. Even if it be that the numbering is prima facie evidence of the respective dates of admission, it does not seem to us that it determines that the suit bearing the later number was “afterwards” launched within the meaning of the rule which, in our opinion, contemplates a later proceeding in the real sense. In any case we prefer to follow the ruling in Appasami v. Ramasami 9 M. 279 : 10 Ind. Jur. 219 : 3 Ind. Dec. (N.S.) 591 which clearly contemplates that in a case like the present the plaintiff may elect as to which of two suits instituted by him together on the same day shall be held to be barred by the operation of Order II, Rule 2. This being so, we think the sellers here are entitled to ask that the doctrine if applied should be applied to the suit for damages in respect of the non-acceptance of 32 bales so as to leave their remedy unaffected as to the 28 bales sold and delivered. The result is that both appeals fail and are dismissed with costs.
