JUDGMENT
Kapur, J.
1. This is an appeal brought by the Union of India against an appellate decree of Additional District Judge S. L. Madhok reversing the decree of the trial Court and thus ordering rendition of accounts as between a seller and a purchaser of goods.
2. On 30-1-1947 the plaintiff Munna Lal agreed to purchase ‘cable wires’ for a sum of Rs. 7,60,000/-. According to the conditions of sale the goods were to be sold under the clause as is and where is’. On 25-2-1947 the plaintiff objected to the issue of sale orders which were made by the defendant’s officers as the goods they said were not in good order.
On 28-2-1947 the plaintiff refused to take the goods as being unsaleable. After the contract had been entered into on 31-1-1947 the plaintiff paid a sum of Rs. 30,000/- by way of security for due performance of the contract. On 16-8-1947 the plaintiff asked for refund of the security money. After giving notice under Section 80 of the Civil P. C. the plaintiff brought a suit for rendition of accounts alleging ‘inter alia’ that he had requested the Government Department for refund of the security money which had been refused on the ground that the plaintiff was bound to take delivery of the goods.
He also alleged that he had been informed that if the goods were not taken delivery of they would be resold at the risk of the plaintiff. One of the issues which arose in the case was whether a suit for rendition of accounts is maintainable. The trial Court held that it is not maintainable and the first appellate Court has held that it is.
3. I called upon Mr. Grover for the plaintiff-respondent to support the judgment of the appellate Court and he relies on Section 54(2) of the Indian Sale of Goods Act, but I find nothing in that section to support the prayer of the plaintiff for a suit for accounts. He then referred to the commentary in Mulla’s book on the Indian Safe of Goods Act page 230 which deals with improper resale by the seller, but as I read it all that It means is that if there is a profit in the case of ant improper resale the buyer is entitled to get it from the seller and in every other case the right of the buyer and the seller is one for damages. Mr. Grover also referred to — “Jamal v. Moola Dawood Sons and Co.’, AIR 1915 PC 48 (A), but that again in my opinion has no application to the facts of the present case. Nor does it support the proposition which is placed before me that a suit for accounts does lie between a seller and a buyer of goods.
4. As a matter of fact in the present case the finding of the trial Court was that the breach was by the plaintiff but there is no finding by the-appellate Court on this point. When the defendant pleaded Section 34 of the Indian Arbitration Actfor the stay of proceedings the plaintiff denied that there was a valid agreement of sale and purchase between the parties.
5. In these circumstances I find no support
for the proposition that such a suit as has been.
brought was competent. I would therefore allow
this appeal, set aside the decree of the appellate
Court and restore that of the trial Court The
appellant will have his costs in this Court and in
the Courts below.