Untwalia, J.

(1) This second appeal came up before us for hearing on a reference by a learned Single Judge of this Court. The defendants are the appellants. The suit filed by the plaintiff-respondent was for recovery of Rs. 1,800 on account of damages for breach of a contract of sale of 180 bags of pure Tora. Both the Courts below have decreed the suit of the plaintiff.

(2) The plaintiff is a private limited company carrying on business at Forbes-ganj in the district of Purnea. Defendants 2 and 3 are said to carry on business in the town of Gorakhpur in the name and style of defendant No. 1. According to the plaintiffs case, the defendants, by their telegram dated the 22nd March. 1961, offered to the plaintiff at Forbesganj to purchase for it Pai Tora at the rate of Rs. 26.50 paise per maund and linseed at Rs. 25.00 per maund, and sought its approval and acceptance of the offer. The plaintiff accepted the offer made by the defendants and communicated the same to them by its letter dated the 23rd March, 1961, whereby the defendants were directed to purchase for the plaintiff one wagon of pure Tora at Rs. 28.00 per maund and to despatch the same to Forbesganj. The defendants purchased 180 bags of Pure Tora at Rs. 28.00 per maund and informed the plaintiff by their telegram dated the 28th March, 1961. The goods, however, were not despatched after the purchase, even up to the 10th April, 1961. The plaintiff, by its letter dated the 11th April, 1961, wrote to the defendants to enquire from them as to why the commodity could not be despatched, and requested them to despatch 180 bags to Forbesganj without any further delay. Even then, the defendants did not despatch. On the 2nd May, 1961, the plaintiff wrote again complaining about the delay in the despatch but the goods were not despatched. The market of Tora went on rising and it went up to Rs. 32.50 paise per maund in the Forbesganj market. It is not stated in any part of the plaint as to at what point of time was this market rate. According to the plaintiffs case. 180 bags of Tora would be equal to 405 maunds; as each bag contains 2 maunds 10 seers. The difference between the contract price and the market price thus came to Rs. 1,822.50 at the rate of Rs. 4.50 paise per maund. Giving a remission of Rs. 22.50 paise, the total claim in the suit was Rs. 1800.00.

(3) The defence set up by the appellants was that, as per instructions of the plaintiff, defendant No. 1 had purchased the Tora and sent a sample of the purchased goods to it; but the plaintiff company informed that the Tora contained 50% of Pai and expressed its inability to accept the goods. Thus, the transaction failed. The plaintiff insisted on despatch of the Tora. The defendants asked the plaintiff to send its men to take delivery of the goods which had been purchased by them for the plaintiff as per sample. The plaintiff never sent any man to take delivery. The breach of the contract, therefore, was on the part of the plaintiff company, and not on the part of the defendants. The defendants also contended and took the plea that the Court at Araria had no jurisdiction to try the suit as the contract was completed at Gorakh-pur, the delivery was to be made at Gorakhpur, and no part of the cause of action arose within the jurisdiction of the Araria Court.

(4) Both the Courts below have found that, since the goods were to be delivered at Forbesganj, the Araria Court had jurisdiction to try the suit. They have further found that there was a concluded contract between the parties and the contract was for purchase of pure Tora at Rs. 28.00 per maund, the defendants had committed breach of the contract, and the plaintiff was entitled to the damages claimed, as the prevalent market rate of Tora in June, 1961 was Rs. 32.50 paise per maund.

(5) Several points have been urged In support of the appeal by learned counsel for the appellants. I shall state them and briefly indicate that there is no substance in any of the points urged on behalf of the appellants, except in one which point is fatal to the cause of the plaintiff. The points are:-- (i) that the Araria Court had no jurisdiction to try the suit; (ii) that at no point of time any contract was concluded between the parties as the sample sent by the defendants was rejected by the plaintiff; (iii) that arbitrarily the Courts have taken the contents of 180 bags to be 405 maunds, and (iv) that the breach, if any, had occurred long before June, 1961, and, there being neither any pleading nor any proof of the prevailing market rate of Tora at or about the date of the breach, the plaintiff is not entitled to any damages. There is substance in the contention put forward on behalf of the appellants that the Araria Court had no jurisdiction to try the suit. The telegram sent by the defendants on the 22nd March, 1961 (Ext. 5) was a mere communication of the prevailing rate of Pai Tora at Gorakhpur and an invitation to offer, not an offer itself. The letter (Ext. 1) dated the 23rd March, 1961, sent by the plaintiff to the defendants in response to the invitation to offer contained in Ext. 5 was the offer of the plaintiff. The plaintiff offered to purchase pure Tora at Rs. 28.00 per maund; the quantity being 180 bags, which is the capacity of a wagon. The defendants accepted this offer by their telegram (Ex. 5/a) dated the 28th March 1961, which merely said -- "Received letter, Bought 180 bags Tora 28/- Linseed 24/-" The price of linseed was also quoted, but that is immaterial for our purpose. The fact to be emphasised is that this was an unconditional acceptance of the plaintiffs offer to purchase 180 bags of Tora at Rs. 28.00 per maund. There was no statement that the purchase was as per sample which was being sent. The contract, therefore, was completed at Gorakhpur when the telegram of accept ance was despatched from that place on the 28th March, 1961. The plaintiffs case is that the defendants were to despatch the goods by rail to Forbesganj. That being so, under Section 39 of the Sale of Goods Act, the delivery at the request of the buyer to the common carrier was tantamount to delivery to the buyer at Gorakhpur. The Courts below seem to have fallen into an error in thinking that the defendants had undertaken to deliver the goods at Forbesganj in the eye of law. Viewed in that light, one may say that no part of the cause of action arose within the jurisdiction of the Araria Court. I may further add that, although it is not the plaintiffs case in the plaint that the communication of the breach of the contract, if any, was received by the plaintiff at Forbesganj within the jurisdiction of the Araria Court, it is also one of the settled principles of law, so far as this court is concerned, that the place where the communication of the breach of the contract or cancellation of the contract is received is a place where in such a suit a part of the cause of action can be said to have arisen. I need not, however, pursue this matter any further as the point of jurisdiction can be finished with reference to the provision of law contained in Section 21 of the Code of Civil Procedure. Although the point was taken at the earliest stage, no prejudice could be shown to have been caused to the appellants by the trial of the suit by the Araria Court. In that view of the matter, this point is not fit to succeed in the second appellate court.

(6) The concurrent finding of the Courts below that there was a concluded contract between the parties is correct in view of the discussion which I have made in regard to the point of jurisdiction. There does not seem to be any error of law in this regard in the judgments of the Courts below.

(7) The fact that the contents of 180 bags of Tora were 405 maunds does not seem to have been disputed in the Courts below. On the case of the plaintiff, the finding recorded upon its basis is correct. There is no error of law in this regard either.

(8) The point of importance which is fatal to the claim of the plaintiff-respondent is the fourth and the last one. The plaint is very much defective in this regard. According to the case made out in the plaint, the goods were to be despatched immediately after the purchase, as the plaintiff had to send the reminder for their despatch, when the goods did not arrive at Forbesganj till the 10th April, 1961, Nowhere in the plaint it is stated as to how, according to the plaintiff, this time of despatch, or in other words, the time of delivery of the goods was extended. The unilaterally repeated demand on the part of the plaintiff could not extend the time for delivery until the defendants, either expressly or impliedly. had agreed to extend it. On the case made out in the plaint, there is nothing to indicate that the defendants had agreed to extend the time, expressly or impliedly. As stated above, rather the plaint is silent on the point as to when actually the breach occurred and on what date the prevailing rate of the contracted quality of Tora was Rs. 32.50 paise per maund.

(9) On the basis of the defendants case, and especially Ext. 4/a, which is the latters reply dated the 9th June, 1961, sent on behalf of the defendants to the plaintiffs pleaders notice dated the 29th May, 1961 (Ext. 4), it was submitted on behalf of the plaintiff-respondent that the defendants had agreed to deliver the goods at least by the 29th May, 1961, if not later. I am not prepared to accept this argument. The correspondence, as noticed in the judgments of the Courts below, as also Ext. 4/a clearly shows that the difference between the parties arose in the very beginning in April. 1961. According to the plaintiff, the defendants had agreed to purchase and despatch pure Tora for it, while, according to the defendants, they had agreed to purchase and despatch Tora as per sample sent by them, which, as is the finding of the Courts below, was not a sample of pure Tora. The breach, therefore, on the part of the defendants had occurred in April, 1961. At no point of time thereafter, either expressly or tacitly or impliedly, the defendants had agreed to despatch pure Tora as per contract. Their so-called readiness and willingness to despatch the Tora was a qualified fresh offer to despatch the Tora as per sample sent by them, which was not the contract between the parties. The parties were never consensus ad idem in regard to such an alleged contract, and they were never agreed to the despatch or to the extension of time for the despatch in regard to the contracted quality of the Tora. In that view of the matter, I am definitely of the opinion that the breach of the contract occurred and the defendants were responsible for that breach in April, 1961, to be more accurate, near about the middle of April, 1961. The claim of the plaintiff for damages based upon the difference between the contract price and the market price prevailing in June, 1961 was unsustainable. There being no claim or evidence in regard to the prevailing market rate in or about the middle of April, 1961, the suit, as framed, must fail. In this connection reference may be made to the following decisions in Erroll Mackay v. Kameshwar Singh, AIR 1932 PC 196 [LQ/PC/1932/44] , Dominion of India v. Bhikhraj Jaipuria, AIR 1957 Pat 586 [LQ/PatHC/1957/85] , Bhikraj Jaipuria v. Union of India, AIR 1962 SC 113 [LQ/SC/1961/262] and Murlidhar Chiranjilal v. Harischandra Dwarkadas, AIR 1962 SC 366 [LQ/SC/1961/148] . 9A. Reliance was placed on behalf of the plaintiff-respondent upon the decision of this Court in Firm Rampratap Mahadeo Prasad v. Sasansa Sugar Works Ltd., AIR 1964 Pat 250 [LQ/PatHC/1962/127] and a decision of the Supreme Court in P.S.N.S. Ambalavana Chettiar and Co. Ltd. v. Express Newspapers Ltd., Bombay, AIR 1968 SC 741 [LQ/SC/1967/326] . In my opinion, none of these two cases helps the contention of the plaintiff-respondent. In the Patna case, the question was that if during the time when the goods ought to have been delivered and when they were not delivered, the buyer had re-purchased the goods in the market whether that re-purchase rate could be taken as the market rate for ascertaining the quantum of damages under Section 73 of the Contract Act. Their Lordships held, it could be so. If I may say so with respect, there is no scope for doubting the proposition of law which was laid down in that case. The point to be noticed with reference to that case also is that the market rate, which, on the facts of that case, was taken to be the re-purchase rate, was the rate which was prevalent when the goods ought to have been delivered, but were not delivered; that is to say, on the date of the breach of the contract on the part of the seller. The Supreme Court case relied on behalf of the respondent is rather against it on principle. In the Supreme Court case, Bachawat, J., speaking for the Court, has said at page 744 -

"(13). The respondent is entitled to claim as damages the difference between the contract price and the market price on the date of the breach. Where no time is fixed under the contract of sale for acceptance of the goods, the measure of damages is prima facie the difference between the contract price and the market price on the date of the refusal by the buyer to accept the goods, see Illustration (c) to Section 73 of the Indian Contract Act. In the present case, no time was fixed in the contract for acceptance of the goods. On March 29, 1952, the appellants refused to accept the goods. The respondent is entitled to the difference between the contract price and the market price on March 29. 1952."

In the instant case, even according to the plaintiff, the goods were to be despatched immediately after the purchase. This is, therefore, not a case where it can be said that there was no time fixed under the contract for despatch or acceptance of the goods. Secondly, even assuming that there was no time fixed in the sense of a particular specified date, the refusal on the part of the defendants was clear in April, 1961, when they insisted to despatch the goods as per sample sent by them, and not pure Tora, as they had intimated to have purchased for the plaintiff by their telegram dated the 28th March, 1961 (Ext. 5/a). In either view of the matter, the date of breach, which was March 29, 1952, on the facts of the case before the Supreme Court, was near about the middle of April, 1961 in the instant case.

(10) For the reasons given above, I allow the appeal, set aside the judgments and the decrees of the courts below and dismiss the plaintiffs suit. Since I have affirmed the findings of the Courts below that there was a concluded contract and that the defendants were responsible for the breach of the contract, on the facts and in the circumstances of the case, I would direct the parties to bear their own costs throughout.