SATHISH NINAN, J.
The dismissal of a suit for damages is under challenge in this appeal.
2. Plaintiff company is engaged in the business of rubber latex processing. The defendant invited tenders for sale of "675 barrels of normal rubber latex processed during the month of December, 1990 at Ayiranalloor Estate". The plaintiff's bid was confirmed. Thereupon, Ext.B5 agreement was executed between the parties. Plaintiff paid price for 644 barrels. Out of the total quantity, the plaintiff lifted only 605 barrels. The allegation of the plaintiff is that the latex is of substandard quality and does not conform to the normal required standards. Accordingly the suit was filed for realisation of A.S. No.461 of 2001 -: 2 :- an amount of Rs.2,26,182/-. The defendant denied the allegation regarding the quality of the latex. The claim for damages was challenged.
3. As specified in the tender, the product sold was "normal rubber latex processed during the month of December, 1990". The allegation is that the latex supplied contained a high quantity of Volatile Fatty Acid (VFA) than normal standards. PW2 is an expert from the Rubber Board. He has deposed that since 2 to 3 months after the latex is procured the VFA content will start increasing. The latex on being collected will be added with 1.2% ammonia which will preserve the quality of the latex. He has added that such latex with ammonia added is referred to as 'normal latex'. According to him upto a period of six months, the latex would be in a usable condition though its quality would deteriorate. He has deposed that it is in the interests of the buyer that immediately after sale, the latex be removed for processing. Referring to Ext A11, which contain the VFA value of the latex A.S. No.461 of 2001 -: 3 :- sold to the plaintiff, he has deposed that the latex mentioned therein can be centrifuged and used. From the evidence available, it follows that the latex supplied is not of the quality as expected to by the plaintiff. However, it is not the case that the latex is totally unusable. The product that was sold is of December 1990. The tender was floated on 16.01.1991 and accepted on 07.02.1991. Exhibit B5 agreement was executed between the parties only on 06.03.1991. The delay in execution of the agreement is attributable to the plaintiff. PW1 has rather admitted the delay on their part in executing the agreement explaining that it was due to lack of funds. Even by that time 3 months had already expired since the latex was collected. The entire quantity of latex was to be lifted by the plaintiff on or before 10.03.1991. However, even as on May 1991, only 605 barrels were lifted by the plaintiff. It is in evidence that the plaintiff had been requesting the defendant for more time to lift the articles for various reasons A.S. No.461 of 2001 -: 4 :- not attributable to the defendant. Suffice to notice that there was inordinate delay in lifting the latex by the plaintiff. As is revealed from the evidence of PW2, time is an important factor insofar as the quality of latex is concerned. By passage of time the quality deteriorates. Here, clauses 5, 6 and 13 of Ext B5 agreement entered into between the parties is significant and is extracted:
"5. Transport of the produce will be the responsibility of the purchaser and the seller will not undertake any of the complaint about quantity of the latex once it is delivered to the purchaser by the seller. However, the loading of latex in the purchasers vehicle and unloading of empty barrels in the seller's estate will be done by the seller.
6. The latex sold should be taken delivery on or before 10.03.1991 failing which, ground rent at the rate of Rs.2/- (Rupees two only) per day per drum will be charged extra.
13. Wherever any time or period is provided in the agreement for the performance of any act or thing, time or period so provided shall be deemed to be essence of the contract."
As per Ext B5, the latex is to be lifted before 10.03.1991 and once it is delivered to the A.S. No.461 of 2001 -: 5 :- purchaser no complaint about the quality of the latex could be raised. Time is the essence of the contract. The plaintiff failed to lift the latex within the time stipulated.
4. Learned counsel appearing for the appellant/plaintiff referring to Section 59 of the Sale of Goods Act, 1930 (for short, "the Act") would contend that the sale was by description as 'natural rubber latex' and that there is breach of warranty by the defendant. According to him in terms of Section 59 of the Act the plaintiff is entitled for damages for breach of warranty. He would submit that the finding of the court below that the goods sold are specific goods is not correct. Section 2(14) of the Act defines specific goods. It means goods identified and agreed upon at the time contract of sale. Sale of goods by description usually refers to sale of unascertained goods. In the present case it is rather admitted that the 675 barrels for sale to the plaintiff were specifically identified and kept apart. PW3 has A.S. No.461 of 2001 -: 6 :- admitted that it is for the 675 barrels that were set apart that the tender was submitted. Therefore, it would be difficult to agree with the contention that it is a case of sale by description. However, it is seen that on the facts of the case even assuming that sale of goods was by description, that may not be of any consequence. Section 16 of the Act provides thus:
"16. Implied conditions as to quality or fitness.- Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:-
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose of which the goods are required, so as to show that the buyer relied on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose:
Provided that, in the case of a contract for the sale of specified article under its parent or other trade name, there is no implied conditions as to its fitness for any particular purpose.
(2) Where goods are bought by description from a A.S. No.461 of 2001 -: 7 :- seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be merchantable quality:
Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.
(3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade:
(4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with."
In terms of Section 16(1) unless the buyer makes known to the seller the specific purpose for which goods are being purchased, there is no implied warranty as to the quality of the goods for his particular purpose. In the case at hand there is no contention that the specific purpose for which the latex was purchased by the plaintiff was made known to the defendant. Therefore, the plaintiff cannot rest its claim upon 'implied warranty'. In terms of 16(2) when goods are bought by description there is an implied condition that the goods shall be of merchantable quality. In the instant case there is A.S. No.461 of 2001 -: 8 :- no case for the plaintiff that the goods purchased are not of merchantable quality. The contention is only that additional expenditure was to be incurred for centrifuging and making it suitable for their requirements. Merchantable quality only means, commercially saleable. Merely because the goods are not suitable for some particular purpose it does not mean that goods are not of merchantable quality.
5. Here the proviso to sub-section (2) of Section 16 is of much significance. As per the proviso, if the buyer has examined the goods, there shall be no implied condition regarding the defects which such examination would reveal. Admittedly, the goods were available for examination to the plaintiff before submitting tender. The plaintiff had admittedly taken samples. It is also admitted that it was always open for the plaintiff to test regarding the quality of the goods including Ammonia and the VFA content. Plaintiff having failed to do so is not entitled to contend that the A.S. No.461 of 2001 -: 9 :- goods purchased is of low quality. Here it would be relevant to refer to certain extracts from Commentaries of Sir Frederick Pollock & Sir Dinshaw Fardunji Mulla on Sale of Goods Act, 1930 (9th Edn., pages 154, 156, 157 & 164):
"Sale of a quantity of vegetable glue in casks. The buyer came to examine the glue, but contended himself with looking at the outside of the casks. The glue was unmerchantable by reason of a defect which the buyer would have discovered if he had examined the glue properly. The buyer was without remedy."
.................................................................................................
"Similarly where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty at Common Law."
..................................................................................................
"At Common Law, therefore, when the goods were in existence at the time of the contract, and the buyer had the opportunity of inspecting them, whether the contract was for specific or for unascertained goods, for instance a part of a larger parcel, or for specific goods the actual condition of which was as capable of being ascertained by the buyer, as by the seller, or were a known article, specifically described by the buyer, the buyer was presumed to be acting on his own judgment, and could not afterwards hold the seller responsible if the article turned out to be unfit for the purpose for which it A.S. No.461 of 2001 -: 10 :- was required or not to be of merchantable quality, nor did it affect the case if the buyer did not avail himself of the opportunity to examine the goods, or if the goods had some latent defect, which is generally understood to mean a defect such that no practicable examination made with competent skill and care would discover it."
...................................................................................................
"If however, the buyer having the opportunity of inspection is content to examine the goods specifically,he will not be entitled to complain of defects which he would have discovered if his examination had been more thorough."
Therefore, if the article was in existence at the time of the contract and the buyer had the opportunity of inspecting and verifying the condition or quality of the goods, having failed to do so, the seller cannot be held responsible if the article or the goods were not of the quality required for the purpose of the buyer. If the buyer did not avail the opportunity to properly examine the goods, he cannot cast the fault on the seller. Since admittedly the plaintiff who had an opportunity to look into the quality of the goods and submit his tender did it only superficially or rather failed to ascertain if the goods were of the A.S. No.461 of 2001 -: 11 :- required quality, cannot thereafter turn round and complain that the goods were unfit for his purposes. As noted supra, it is not the plaintiff's case that the goods are unmerchantable. There was inordinate delay on the part of the plaintiff to lift the goods under the contract and going by the evidence of the expert passage of time would enhance the VFA content. In view of the above, we are in agreement with the findings entered into by the court below.
Accordingly, the Appeal Suit is dismissed. No costs.
Sd/-
V. CHITAMBARESH, JUDGE.
Sd/-
SATHISH NINAN, JUDGE.
vsv /true copy/ P.S. to Judge A.S. No.461 of 2001 -: 12 :-