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Civil Revision No. 317 of 1986, decided on 2nd November, 1986.

‑‑‑S. 59‑‑Civil Procedure Code (V of 1908), 5.115‑‑Contract‑ Damages‑‑Breach of warranty‑‑Diminution of price‑‑Petitioner not raising defence of diminution of price in written statement nor any such foundation was laid in evidence before Court and in fact such a defence was never raised by him before Courts below‑‑Petitioner, held, could not be permitted to raise an absolutely new defence at revisional stage.

Ahmad Corporation v. International Food Grain & Oil‑Seed PLD 1973 Kar. 361 ref.

S.A. Sarwana for Petitioner.

This Civil Revision Application under section 115, C.P.C. is filed by the defendant /applicant against the two concurrent judgments of the Courts below.

The respondent instituted a suit for recovery of a sum of Rs.24,328 against the applicant which included Rs.20,826 being the amount allegedly illegally withheld by the applicant out of the bill payable to respondent in connection with the contract of supply of 10 Tubs and a sum of Rs.3,400 by way of additional transportation charges. The appellant resisted the above suit and pleaded that the tubs supplied by the respondent were not in accordance with the specification of the contract and as such they rightly withheld the sum of Rs.20,826 out of the bill which was payable to respondent. The applicant further took the defence that as the tubs supplied by the respondent were defective, they had to incur a sum of Rs.3,149.33 to put them in working order but in spite of this expenditure by the applicant the tubs could not be used because of the defective quality and as such the applicant suffered a loss of Rs.305,152 on account of purchase of balance quantity of tubs from the market which the respondent was liable to pay to the applicant. It was accordingly contended that the applicant was not liable to pay anything to respondent. The Courts below on the basis of the evidence produced by the parties reached the conclusion that supply of the tubs by the respondent was accepted by the applicant and in any case the applicant's own technical witness had recommended acceptance of these tubs inspite of discovery of alleged defects in the tubs. With regard to the warranty executed by respondent in respect of the tubs supplied to applicant, the courts below held that it only provided for reimbursement of the expenses incurred by applicant for repairs and replacement of any part of the tubs and as no such claim arose after the supply of tubs the applicants were not justified to withhold the sum of Rs.20,826 payable to respondent against the supply of 10 tubs. The suit of respondent was accordingly decreed for Rs.20,826 only and the claim for additional transportation charges was rejected as the respondent did not press the same at the trial.

Mr. S . A . Sarwana, the learned counsel for the applicant raised only one contention in this revision. It is contended by the learned counsel that as the tubs supplied by the respondent were not in accordance with the specification of the contract it amounted to a breach of warranty on the part of respondent with regard to the goods supplied and as such the applicant could either sue the respondent for damages for breach of warranty or could also set up against the respondent the breach of warranty in diminution or extinction of the price under section 59 of the Sales of Goods Act. It is accordingly urged by the learned counsel that the sum of Rs.20,826 withheld by the applicant was appropriated towards diminution of the price of tubs for breach of warranty with regard to the quality of these tubs furnished by the respondent. On these premises it is argued by the learned counsel that the courts below failed to take into account this aspect of the case while decreeing the suit of respondent. To support his contention the learned counsel relied on the case of Ahmad Corporation vs. International Food Grain & Oil Seed P L D 1973 Kar. 361. No doubt the case cited by the learned counsel laid down that a claim for diminution of price by a uyer based on the breach of warranty could be raised as a defence in the suit without filing a counter claim but a careful reading of the observation of the Court at pages 376‑377 paragraph 25, will show that such defence by the buyer in a suit by the seller for recovery of the price of goods should be specific and the extent of diminution of price claimed on account of breach of warranty must be clearly spelt out. The above observations of the Court may be usefully reproduced here:‑

"The question that then arises is as to what are the rights of the buyer in relation to an action brought by the seller for recovery of price. As section 59 of Sale of Goods Act lays down, a buyer can file a suit against the seller for damages on account of inferiority of the material supplied but, it is also provided that the buyer may not exercise such a right and may choose to wait till such time that the seller files a suit for recovery of the price and in that case he may be able to successfully plead that the seller is not entitled to the price which is fixed in the contract under section 9(1) of the Sale of Goods Act but only to a diminished price. Since the Sales of Goods Act in our country is based on the Sale of Goods Act of England, it would be profitable to consider some English cases on this point. It appears that before the decision in the case of Mondel v. Steel the law that prevailed in England was that where a chattel was bought for an agreed price, the plaintiff was allowed to recover the stipulated sum, leaving the defendants to a cross‑action for breach of warranty. But after the decision in Mondel v. Steel and Basten v. Butter a. different practice began to prevail and has since been followed: and the defendant is now permitted to show that the chattel by reason of non‑compliance with warranty was diminished in value, the rule, therefore, is that it is competent for the defendant simply to defend himself by showing how much less the subject matter of the action was worth by reason of breach of contract; and to that extent he was capable of obtaining an abatement of price on that account. The same principle was also recognized and acted upon in the case of Messrs Younus and Razzaq v. Abdullah and on account of breach of warranty as to merchantable quality of the goods, the price awarded to the plaintiff was reduced."

In the case before me the applicant neither raised the defence of diminution of price in the written statement nor any such foundation was laid in the evidence before the Court. In fact such a defence was never raised by the applicants before the courts below. In these circumstances, the applicant cannot be permitted to raise an absolutely new defence at the revisional stage. No other point is raised. There is no merit in this Revision Application which is dismissed summarily.

M.Y.H./P‑13/K Application dismissed.

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