# ··?Y ) • JUGGILAL KAMLAPAT v. PRATAPMAL RAMESHWAR - **Citation:** [1978] 2 S.C.R. 219 - **Court:** Supreme Court of India - **Decided:** 1977-11-24 - **Bench:** M. H. Beg, A. C. GUPTA iAND P. S. KAILASAM, Jj.J - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/y-juggilal-kamlapat-v-pratapmal-rameshwar-7370 - **Pages:** 30 ## Headnote Sale of Goods Act 1930--Sec. 2(4). 18 and 23. Meaning of document of title to g?Ods-Tf pucca delivery order passes the title-If custoni can prevail over law or express contract. Evidence Act 1872 Sec. 92 whether custoni can be pleaded to vnry a. written contract. Civil Procedure Code 1908 Order VIII rule 2 and 3-Whether all grourid! of defence must be raised-Effect of not raising all defence. The appellant~plaintiff entered into a contract with respondents to sell diverse quantities of B. Twill. By another contract the appellant agreed to sell to the resPondents certain quantity of Hessian goods. All contracts '7.·ere in the standard forms of the Indian Jute Mills Association. All contracts contained the follow~ ing clause for payment : "Payment to be made in cash in exchange for Delivery Orders on Sellers, or for Railway Receipts or for Dock's Receipts or for Mate's Receipts (Which Dock's or Mate's Receipts are to be handed by a Dock or Ship's Officer to the Seller's representatives." The appellant tendered to the respond~ts "Pucca Delivery Orders" on dif~ ferent mills. These pucca deliverv orders contained a stipulation thaJ the mills A B c D were not bound to recognise any transferee except the original buyer and1 further E requires the transferee to give an undettaking to the mills tha1 he will take delivery of the goods in terms of the cootract ·.between the mills and the original buyer. The appellant was not the original buyer of these pacca delivery orderS. The respondents refused to accept the pucca delivery orders tendered by the appellant or pay for the same. Tue· appellant, therefore, instituted the present suit In para 19A of the plaint it was contended that the delivery orders were \'alid by virtue of trade, custom and usage of the jute trade in Calcutta. 1be respondents in their written statement contended that the documents described as puce.'\ delivery orders are not delivery orders at all, and, therefore, the tenders F were invalid. The respondents also denied the existence of ttade custom or usage as alleged. The learned Trial Judge of the High Court held that the pucca delivery orders tendered by the appellant to the resPondents were not in conformity with the contiracts between the parties. 'He also held that the custom wa5 not proved; that tohe custom alleged! was contrary to sections 18 and 23 of the Sale of Goods Act, 1930 a.nd also to the terms of the written contracts. Jn an appeal filed by ;he appellant the Division Bench of the High Comt confirmed the decision of the Single Judge. Jn an appeal by certificate Beg. CJ. (concurring with Gupta J.) HELD : 1. The crux of the whole matter was whether the plaintiff had carried out what it had undertaken and tendered1 the delivery notes in respect G of the contracts. The respondent did not bargain for delivery orders containH ing reservations or conditions entitling the mills or suppliers to refuse delivery to the holder of the delivery order, unless the defendants complied with such other and additional terms or conditions as the suppliers imposed. It is difficult to see how any alleged custom, could modifv the requirement of law as I A B c D E F G 220 SUPREME COURT REPORTS (1978) 2 S.C.R. to what ':1 document of titl~ is or what a particular contiract is or what a particul~r deh~ery order means. The plea of custom set up by the plaintiff was not available In the face of express statutory provisions as well as specific terms of the con•r~ct between the parties. Alleged custom, amounting to ignoring or contravening the express terms of agreements or the operation of statutory provisions would obviously be invalid. A custom could not be pleaded as an answer to the provisions of section 92 of the Evidence Act \Vhich bar oral evidence to contradict, vary add to, or substract from the terms of an agreement. Moreover, it has been found by both the learned Trial Judge as well as the Division Bench of the High Court that there is no such uniformity of practice or u ## Text _Characters 0–39,725 of 97,783. This is a partial read: ask again with offset=39725 for what follows._ , ··?Y ) • JUGGILAL KAMLAPAT v. PRATAPMAL RAMESHWAR November 24, 1977 219 [M. H. BEG, C.J., A. C. GUPTA iAND P. S. KAILASAM, JJ.J . Sale of Goods Act 1930--Sec. 2(4). 18 and 23. Meaning of document of title to g?Ods-Tf pucca delivery order passes the title-If custoni can prevail over law or express contract. Evidence Act 1872 Sec. 92 whether custoni can be pleaded to vnry a. written contract. Civil Procedure Code 1908 Order VIII rule 2 and 3-Whether all grourid! of defence must be raised-Effect of not raising all defence. The appellant~plaintiff entered into a contract with respondents to sell diverse quantities of B. Twill. By another contract the appellant agreed to sell to the resPondents certain quantity of Hessian goods. All contracts '7.·ere in the standard forms of the Indian Jute Mills Association. All contracts contained the follow~ ing clause for payment : "Payment to be made in cash in exchange for Delivery Orders on Sellers, or for Railway Receipts or for Dock's Receipts or for Mate's Receipts (Which Dock's or Mate's Receipts are to be handed by a Dock or Ship's Officer to the Seller's representatives." The appellant tendered to the respond~ts "Pucca Delivery Orders" on dif~ ferent mills. These pucca deliverv orders contained a stipulation thaJ the mills A B c D were not bound to recognise any transferee except the original buyer and1 further E requires the transferee to give an undettaking to the mills tha1 he will take delivery of the goods in terms of the cootract ·.between the mills and the original buyer. The appellant was not the original buyer of these pacca delivery orderS. The respondents refused to accept the pucca delivery orders tendered by the appellant or pay for the same. Tue· appellant, therefore, instituted the present suit In para 19A of the plaint it was contended that the delivery orders were \'alid by virtue of trade, custom and usage of the jute trade in Calcutta. 1be respondents in their written statement contended that the documents described as puce.'\ delivery orders are not delivery orders at all, and, therefore, the tenders F were invalid. The respondents also denied the existence of ttade custom or usage as alleged. The learned Trial Judge of the High Court held that the pucca delivery orders tendered by the appellant to the resPondents were not in conformity with the contiracts between the parties. 'He also held that the custom wa5 not proved; that tohe custom alleged! was contrary to sections 18 and 23 of the Sale of Goods Act, 1930 a.nd also to the terms of the written contracts. Jn an appeal filed by ;he appellant the Division Bench of the High Comt confirmed the decision of the Single Judge. Jn an appeal by certificate Beg. CJ. (concurring with Gupta J.) HELD : 1. The crux of the whole matter was whether the plaintiff had carried out what it had undertaken and tendered1 the delivery notes in respect G of the contracts. The respondent did not bargain for delivery orders containH ing reservations or conditions entitling the mills or suppliers to refuse delivery to the holder of the delivery order, unless the defendants complied with such other and additional terms or conditions as the suppliers imposed. It is difficult to see how any alleged custom, could modifv the requirement of law as I A B c D E F G 220 SUPREME COURT REPORTS (1978) 2 S.C.R. to what ':1 document of titl~ is or what a particular contiract is or what a particul~r deh~ery order means. The plea of custom set up by the plaintiff was not available In the face of express statutory provisions as well as specific terms of the con•r~ct between the parties. Alleged custom, amounting to ignoring or contravening the express terms of agreements or the operation of statutory provisions would obviously be invalid. A custom could not be pleaded as an answer to the provisions of section 92 of the Evidence Act \Vhich bar oral evidence to contradict, vary add to, or substract from the terms of an agreement. Moreover, it has been found by both the learned Trial Judge as well as the Division Bench of the High Court that there is no such uniformity of practice or usage about the forms of either contracts or delivery orders or their implicaitions as ro annex obligations contained in a particular type of delivery order to transactions in general. The defendants had to enter into direct separate contracts with the mills before he could demand deliveries. Such conditional delivery orders are certainly not documents of title as defined by section 2(4) of the Sale of Goods Act. f22JC. D-2260, E-G, 227A, B, DJ Anglo-lndia lute Mills Co. v. Omademu//, 38 Cal. I.L.R. 127, Duni Chand Rataria v. Bhuwalka Brothers Ltd., [1955] SCR 1071, Jute & Gunny Brokers Ltd. and Anr. v. The Union of lndia & Anr., [1961] (3) SCR 820 and The Morvi Mercantile Bank Lld., & Anr. v. Union of lndia, [1965] (3) SCR 254 erferred to .. 2. The defendants cannot be compelled to pay damages for alleged breach of contract when the delivery order was not what they contracted for. In view of the above conclusion it is not necessary to deal with the further question whetiher, the. delivery orders, if they authorised the defendants to demand delivery unconditionally, would still not CO'llstitute a due performance of the contract between the parties until the goods had been ascertained. [227H, 228A. Rl GUPTA J. A delivery order is a document of ti~le to the goolls according to section 2(4) of the Sale of Goods Act. A delivery order is an order by the owner of goods directing the person who holds them on his behalf to deliver them to the person named in the order. If the pucca delivery orders were documents of ti~le the defendant should have been able to get delivery only by lodging them with the' mills concerned but the delivery orders issued by the mills contain a term that the mills would not be bound to recognise a transferee. The transferees ha.ve to register their names \Vith the miils as buyers and the mills insist OIJl an application being made for that purpose. Thus, the mills insist on a new and separate contract that the holder of a pucca delivery order accept the obligations of the original buyer, which are not necessarily identical with the obligations of the buyers under the contracts concerned in this case. The new contract insists on and includes terms regarding insurance and godown charges which are not mentioned in the contracts between the parties'. Thus the pucca delivery orders were not documents of the. title under the Sale of Goods Act and were not in conformity with what the parties had contracted for. [230 F. G. 231A. Fl - ' 2. The delivery orders did not relate to any specific lot of goods. It is well established that tiitle cannot pass until the goods are oocertained in view of ~- section 18 of the Sale of Goods Act. [231F] Jute and Gunny Brokers Ltd. and Anr. v. Union of Tndia and Ors., [19611 3 SCR 820; followed. 3. The forn:is of the Indian Jute Manufacturers Association are not uniform. They differ in several particulars. The High Court has found that no such custom or usage has been proved on evidence. [232C] Les Affre.!eure Raunis Societe Anonyme v. Leopold Walford (London) Ltd., 1919 AC 801 (807) referred to. ,. H Ang[0 ./ndia Jute Mills Co. v. Omadenuill, ILR 38 Calcutta 127, distinguish· ed. Gunny Brokers Ltd. v. Union of India, [1961] 3 SCR 820, referred to. • , , J JUGGILAL v. PRATAPMAL 221 Duni Chand Rataria .v. Bhuwalka Brothers Ltd., [1955] 1 S.C.R. 1071, dis- •tinguished. Bayyana Bhimayya v. The Government of Andhra Pradesh, [1961] 3 SCR 267 and State of Andhra Pradesh v. Ko/la Sreera1na Murthy, [1961] 1 SCR 184; dts· tinguished . A 4. The contention of 'he plaintiff that the defendant not having raised the. B plea in their correspondence with the plaintiff that the delivery orders tendered ·were defective, were estopped from justifyilfig their repudiation of the contracts on that ground is negatived. The plaintiff did not plead the case of estoppel and ·was, therefore, debarred from raising the contention. Even otherwise the law permits a defendant to justify the repudiation on :w.y ground which exists at the time of repudiation whether or not the ground was stated in the correspondence. [233A. 234A-Bl Nune Sivayya v. Maddu Ranganayakulu, 62 I.A. 89 (98) approved. KAH.ASAM J. (Dissenting), c 1. In the original written statement the defendant contended that the bought . and sold chits a1ad cootracts are invalid and void as hit by the provision of West Bengal Jute Goods Act, 195(}, Therefore, on the original pleadings the question as to whether the delivery order was according to the contract was not in D dispute. Four years after the original plaint was filed the appellan• sought amendment of the plaint. By this amendment, the aippellant reiterated that the tenders made by the appellant of the mills pucca delivery orders were duly made in terms of the contract between the parties An Additional Written Statement was filed by the defendant contending that the mills pucca delivery orders were not delivery orders at aill and, in any event, the appellant had no ·title to any of them. The definition of document of ~tie to gopds under section 2( 4) is an inclusive definition. A document which is used in the ordinary course of business as proof of possession would satisfy the definition as also E a document which would enable the possessor to receive the goods thereby represented. The lransfer of title is therefore, not relevant. The document of title to goods need not be confined to specific goods for it may relate to goods which are not specified. The property in the goods is not transferred to the 'buyer unless and until the goods are ascerta.ined but the contention that t1nless 'by the document the pr0perty in the goods passes there could be no docume!lt of title cannot be accepted. [237B-C. D, 239A, B. E, 243A] Anglo India lute Mills Co. v. Omademull, I.LR. 38 Cal. 127, referred to. Duni Chand Ratana v. Bhuwalka Brothers Ltd., [1955] 1 SCR 1071 applied. . Bayyana Bhimayya v. The Government of Andlzra Pradesh [1961] (3) SCR . 267 referred to. ' Jute and Gunny Brokers Ltd .. and Anr. v. [1961] (3) SCR 820, applied. The Union of India and Ors., 1 Stat~ of Andh,ra Pradesh v. Kalla Sreerama Murthy, [1963] (I) SCR 184 d :J11neraorth v. Ku1gslvay Motors Ltd., [19541 2 All E.R. 694 referred to. an F G . 2. The plea of the appellant th&t the delivery orders toodered in f .'~e contracts are proJ?er tenders ~ould have to be accepted since the ~=~:i~n · f the documents entitles to receive the goods thereby represented. [243-B] H Bhimayya V. The Government of Andhra Pradesh, [1961] (3) SCR 267 at -270 applied, 222 SUPREME COURT REPORTS [1978) 2 S.C.R" A 3. The plea of the appellant is that the delivery order is in accord.ance witb1 B c the contract and that the respondent knew that the delivery order was in accordance with the contract and that he wanted to avoid the contract without justification as the prices had fallen. [244A·B[ 4. In the original written statement there was no challenge to the validity of the delivery orders. The parties to the suit are bound by the procedure prescribed in the Code of Civil Procedure. Order VIII of the C.P.C. provides what a '\Vritten statement should contain. Order VIII rule 2 requires that a defendam1. must raise by his pleading all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence as, if not raised, would be likely to iake the opposite party by surprise. Rule 3 requires that it shall not be sufficient for ea defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. The failure to question the validity of the' delivery order on the ground that it required registration with the mill or that the possessor was bound to give an undertaking, would be failure to comply with the requirements of Order VIII. The pleadings of lhe original side of the High Court must be strictly construed. [245B, G-246A"B] Badal & ·co. v. West llldia Trading Co., A.LR 1964 S.C. 538 followed. 5. Th~ respondent had ample opportunity to put forward his objections to the deJive:ry order in the correspcndence that was exchanged between the partiesor in· the written statemen• as originally filed. On the pleadings itself it appears D that the defence is without substance and belated and put forward for the purpose of escaping the liability. [246"D"E] 6. The defendant not receiving the delivery orders and not raising the plea specifically is more in accordance with his having been satisfied with the deli· very orders being according to contract and his refusal to accept the delivery orders was to avoid the loss due to fall in price. The fact that 3 contracts relating to 2 deliveries have been accepted shows that the respondent was following the practice prevalent in Calcutta by the Juti: Mills Association. [246F, E Gl 7. Taking into account the fact that the appellant as well as the respondent were engaging themselves in the jute Jrade in Calcutta and were following generally the practice of the jute mills Association and had entered into various contracts and haiving business relationship, the conclusion. is irresistible that the respondent! was familiar with the delivery order with the conditions and accepted it as being in use in the ordinary course of business. It is difficult to accept the plea that the delivery order was not negotiable or that it was not in terms F of the conMact and that it wouldl not ha.ve enabled him to take possession of the goods. The delivery orders were according to the terms of the contract and the respondent was aware of them. The question is not one of estoppel bu• the inference to be· drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted as mills pucca delivery mders. [247H"248A"B, GJ G H Jn view of the majority judgmcn• the appeal is dismissed with costs. CIVH. APPELLATE JURISDICTION : Civil Appeal No. 2166 of 1968. From the Judgment and Decree dated 26-4-1966 of the Calcutta High Court in Appea~ No. 263 of 1959. Y. S. Chitale, Leila Sethi (Mrs.), Praveen Kumar, Mukul Mudgal,. B. P. Maheswari and Suresh Sethi for the Appellant. S. K. Gupta, S. M. Jain and B. K. Jain for the Respondent. Thi> following opinions of the Court were delivered • ,. " • • f " ~- J ~ JUGGILAL Y. PRATAPMAL (Beg, C.J.) 223 BEG, C.J .-I have gone through the differing judgments of my A learned brethren Gupta and Kailasam. The difference arises, I find, primarily from divergent interpretations of what was pleaded by the parties. What Kailasam J. considers as having been admitted in tl1e pleadings, by implication, was assumed by Gupta J. to be the matter put in issue by pleadings of the two sides which had to be decided . After having considered the pleadings of the parties, I am unable B to agree, with great respect, with my learned brother Kailasam that this case can be decided in favour of the plaintiff on the pleadings of the parties. It is true that the defendant admits the contract under which goods were to be delivered to the defendant under delivery notes to be supplied by the plaintiff for which payments were to be made by the defendant. But, that did not mean that the defendant accepted what the plaintiff alleges to be the contract between the parties with all its alleged implications. The crux of the whole matter was whether the plaintiff had carried out what it had undertaken and tendered c ddivery notes in respect of the contracts still left for us to consider so as to comply with the conditions of the contract really admitted by the defendant. Jn other words, there is a dispute on what the pa11ies understood the contract to provide or mean. While the defendant accepts that there was a contract, he does not accept the plaintiff's version D about its dne compliance by the plaintiff and a breach of it by the defendant. If this had not been so there could be no dispute. The whole dispute revolved round the question : Was tender of delivery orders containing certain additional conditions according to or at variance with the contract between the parties ? The plaintiff realized fully that the difficulty in the way of an E acceptance of its case was caused by the additional conditions sought to be attached to actual delivery by the delivery orders tendered by it. It, therefore, amended the plaint by adding as follows : "19A. The tenders made by the plaintiff of the Mills Pucca Delivery Orders as mentioned in paragraphs 9 14 and 18 of the Plaint were duly made in terms of the Cont~acts betF ween ~e parties. In any event the Delivery Orders tendered m respect of the Contracts mentioned in the Plaint were and are proper tenders by virtue of trade customs and usage of the Jute Trade in Calcutta. Particulars of such customs and/or usages are set out hereunder. (i) In the Ca!cutta Jute mai:ket there is an usage that upon t~e ISsue by the. Mills to the buyers of Deliery G orders m respect of 1ute goods purchased, the purchas".rs are regarded as the owners of the goods with the nght to transfer these goods by endorsing the delivery Orders and that the Delivery Orders are regarded as documents of title to the Qoods covered by them. ' (ii) At no time till actual delivery is given, is there any H appropriation of the goods either to the Contracts or Delivery Orders, but notwithstanding the absence of A B c D E F G H 224 SUPREME COURT REPORTS (1978] 2 S.C.R. the appropriation, the holders of the Mills Delivery Orders (known in the market as Pucca Delivery Orders) are regarded by the trade as the owners of the relevant goods. (iii) That the Pucca Delivery Orders as representing the goods, pass from hand to hand by endorsement being received by the successive buyers against cash payment and are used in the ordinary course of business authorising the holder thereof to receive the goods which they represent irrespective of the forms in which the Mills Pucca Delivery Orders are couched. (iv) That the tender of Mills Delivery Orders on due date to the buyer, irrespective of the form in which they may be couched, in exchange for cash was and is a fair and valid tender under the Standard India Jute Mills Association Contract Forms, and were and are treated as such. 19B. The defendant, was at all material times fully aware of the aforesaid trade customs and usages and dealt with the plaintiff on the basis thereof." The defemlant in his additional written statement set out in extenso as follows : "2. With regard to paragraph 19A of the amended Plaint, the defendant denies that the alleged tenders or any of them or the alleged delivery orders or any of them were in terms of the contracts between the parties. Further, the docnme'lts described therein as Mills' Pucca Delivery Orders, are not Delivery Orders at all. The plaintiff in any event had no title to any of them. The documents described as Delivery Orders on the face of them relate to goods deliverable under contracts between third parties mentioned in the said alleged Delivery Order$. In any event, the goods mentioned in the alleged Delivery Orders are not goods of the description mentioned in the contracts between the parties herein. Further, the defendant called for the tender of inspection orders in terms of the said contracts, bnt the plaintiff wrongfully and in breach of contract failed and neglected to tender any inspection order even with the purported tender of the Documents described as delivery orders or otherw.ise. The alleged tenders were each and all invalid. 3. With further reference to the said paragraph 19 A, the ·defendant denies that the aMeged tenders of alleged Delivery Orders or any such alleged tender were or are proper tenders by virtue of any alle&ed tr';'de custom o~ usage of the jute trade in Calcutta. It 1s demed that there is any trade custom JUGG!LAL v. PRATAPMAL (Beg, C.J.) 225 or usage as alleged. The correctness of the alleged particulars of the alleged custom or usage is disputed and denied. 4. The allegations contained in sub-paragraph (i) of A paragraph 19A are denied. The documents described as alleged delivery orders in the said paragraph 19A are eot transferable by endorsement. . . B 5. Save that there is no appropriation of the goods either to any particnlar contract or to any delivery order, the allegations contained in sub-paragraph (ii) of the said paragraph 19 A are denied. 6. The allegations contained in sub-paragraph (iii) of the c said paragraph 19A are denied. 7. The defendant denies each and every allegation contained in sub-paragraph (iv) of the said paragraph l9A. 8. With regard to paragraph !9B of the said amended plahit, it is denied that there was or is any trade custom '.)r usage as alleged or .that the defendant was at any time aware of any such alleged custom or usage or that the Jefendant dealt with the plaintiff on the basis of any such alleged custom or usage. The alleged usage or custom (the existence of which is denied) is in any event inconsistent with the terms of the said written contracts between the parties and as such evidence of such alleged usage or custom is inadmissible." As a result of the explicit assertions by the plaintiff and the denials D E • by the defendant, the real dispute between the parties clearly emerged. It was : Did the particular delivery orders, indorsed on behalf of the plaintiff in favour of the defendant, amount to valid tenders as contemplated by the contract between the parties ? Hence, Mr. Justice Bachawat of the Calcutta High Court, who dealt with the case ;n its J earlier stages, framed the following among other issues : F "3.(a) Did the plaintiff tender the delivery orders in respect of June portion of the goods in terms of the contracts mentioned in paragraphs 3 of the plaint as alleged in paragraph 9 of the plaint '? If so, was the fonder valid ? (b) Was there any wrongful failure or neglect by the defendant to accept and/ or pay for the same ? ( c) Did the defendant fail and neglect to pay for and take delivery of the said June portion of the goods ? • * • • • 4. (a) Did the defendant fail and neglect to pay for and take delivery of the Pucca Delivery Orders for May & June 1952 portions of the goods in respect of the G H A B c D E F G II SUPREME COURT REPORTS [1978] 2 S.C.R. contracts mentioned in paragraph 13 of the plaint as alleged in paragraph 14 thereof ? 5. (a) Did the plaintiff duly tender the delivery order in respect of June I 952 portion of the contract mentioned in paragraph 17 of the plaint 7 If so, was the tender valid ? (b) Was there any wrongful failure or neglect by the defendant to accept and/or pay for the same ? ( c) Did the defendant fail and neglect to pay for and take delivery of the said June 1952 portion of the goods? " ................................... The Trial Judge at the final stage, Mr. Jnstice A. N. Ray (as he then was), of the Calcutta High Court, then considered the whole of the law and evidence on these issues at considerable length and held that the plaintiff did not tender the delivery orders in accordance with the terms of the contract between the parties. The defendant did not bargain for delivery orders containing reservations or conditions entitling the mills or·suppliers to refuse delivery to the holder of the delivery order unless the defendant complied with such other and additional terms or conditions as the suppliers impose. This, according to the defendant, was "no delivery order''. It was only an offer to deliver if certain conditions are fulfilled and new liabilities undertaken. The contract between the parties was for delivery without such additional terms and liabilities. This was the short and simple question decided upon documentary evidence before the Court. It is difficult to see how any alleged custom could modify the requirements of law as to what a "document of tit:e" is or what a particular contract is or what a particular delivery order means. It could not help a legally defective document to overcome the basic legal defect due to its terms. It could not override the specific terms of the actual contract between the parties. It could not validato delivery orders containing reservations derogating from the legal requirements of a document of title. The plea of custom set up by the plaintiff, in desperation, was obviously not available in the face of the express statutory provisions as well as the specific terms of the contract between the parties. An alleged custom, amounting to ignoring or contravening the express terms of agreements or the operation of statutory provisions would, obviously, be invalid. Surely, a custom could not be pleaded as an answer to the provisions of section 92 of the Evidence Act which bar oral evidence to contradict, vary, add to or subtract from the terms of an agreement, although proviso (5) of section 92 a.Jlows "any usage or custom by which incidents not expressly montioned in a'ny contract are usually annexed to contracts of that description" to be proved. Annexing usage or custom to the express terms of the contract is very different from demolishing the original contract by substituting new terms which enable a party to a contract to get over its obligations under the contract itself. Moreover, it has • r JUGGILAL V. PRATAPMAL (Beg, C.J.) 227 been found, by the learned trial Judge as well as the Division Bench A of the Calcutta High Court, that there is no such uniformity of practice or usage about the forms of either contracts or delivery orders or their implications as to annex obligations contained in a particular type of delivery order to transactions in general according to various forms of contracts for purchase of jute. It has been cleariy found by Ray J., and the Division Bench, consisB ting of Sinlta CJ. and Sen J., that the contracts now before us (we are not concerned with other contracts for which decrees may or may not have been granted) are for "delivery orders" which are documents of title and not for orders with conditions annexed to them which prevent them from so operating. On the express terms of these delivery orders, the suppliers of jute were not bound to recognise the rights of the holder by mere endorsement of the order. It is only after the c holder had applied for registration and undertaken payment of storage r,harges, and acknowledged the lien of the supplying mills on the goods, for payment of storage and other charges such as insurance of the goods, that the holder could acquire the right to delivery. In other words, he had to enter into direct separate contracts with the mills before he could demand deliwries. Such conditional delivery orders are certainly not documents of title as defined by section 2(4) of the D Sale of Goods Act, which lays down : " ( 4) "document of title to goods" includes a bill of lading, dock-warrant, warehouse keeper's certificate, wharfingers' certificate, railway receipt, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, oc authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented." We have examined a number of cases cited before us, including : Anglo-fl!dia Jute Mills Co. v. Omademull, (') Duni Chand Kataria v. Bhuwalka Brothers Ltd.,( 2 ) lute & Gunny Brokers Ltd. & Anr. v. The Union of lndia & Anr.,(•) and The Morvi Mercantile Bank Ltd. & Anr. v .. Union of bulia.(•) We were not referred to any case which has laid down that a document purporting to be a delivery order hedged round with conditions showing that the supplier of goods had reserved the option to deliver or not to deliver unless further conditions are complied with could possibly be a "document of title" as contempffited by section 2(4) of the Sale of Goods Act set out above. It could not authorise or purport to authorise the holder. of the document to transfer the goods mentioned in it until another agreement took place. The holder might put up an equitable claim if he had actually paid some money. Bnt, he could not be compelled to pay dama~es far an alleged breach of contract when the delivery order was not what (l) 38 C&I. I.LR. 127. (2) [1955] SCR 1071. (3) [1961] l S.C.R. 820. (4) [1965] 3 SCR 25~. 2-1114SCI/77 E G H A B c D E F G H 228 SUPREME COURT REPORTS (1978] 2 li.C.R. he had contracted for. It is a simple case in which what the defendant contracts for has not been received by him on patent facts pleaded and established. Therefore with due respect, I disagree with Kailasam J. and coucur with the view of my learned brother Gupta. l do not think it is necessary, on the conclusion reached above by me, to deal with the further question whether the delivery orders, if they had authorised the defendant to demand delivery unconditionally, would still not constitute a due performance of the contract between the parties until goods had been ascertained and title actually pasied. If, according to the contract, payment was only to be made when property-in goods had passed, Section 18 of the Sale of Goo