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The alleged tenders were each and all invalid.
3.With further reference to the said paragraph 19A, the defendant denies that the alleged tenders of alleged Delivery Orders or any such alleged tender were or are, proper tenders by virtue of any alleged trade custom or usage of the jute trade in Calcutta. It is denied that there is any trade, custom or usage as alleged. The correctness of the alleged particulars of the alleged custom or usage is disputed and denied.
It is alleged in the plaint that the tenders made were in terms of the contracts between the parties and that the defendant committed a breach of the contract by refusing to accept them. In paragraph 19A of the plaint it is claimed- that the tender of such delivery orders was valid by virtue of trade custom and usage of the Jute trade in Calcutta. Particulars of such custom or usage as set out in the plaint are as follows :-
"(i) In the Calcutta Jute market there is a usage that upon the issue by the Mills to the buyers of Delivery orders in respect of jute goods purchased, the purchasers are regarded as the owners of the goods with the right to transfer these goods by endorsing the Delivery Orders and that the Delivery Orders are regarded as documents of title to the goods covered by them.
"Please deliver to Messrs. Janki Dass & Co.'s Principals or order 50 Bls. 1,00,000 yds. Hess Cloth 40 in 7 1/2 oz., 9 by 9 each 2,000 yds. (One Hundred thousand yards only) Ready Shipment Rs. 113."

The cheque handed to the defendant company by Janki Das & Company in payment of the goods comprised in the delivery orders was dishonored. The defendant company thereupon refused to give delivery of the goods to the plaintiffs under the delivery orders. The plaintiffs brought an action against the defendant company for delivery of the goods or their value or damages for conversion. The defendant company urged that the delivery orders were not documents of title and property in the goods did not pass. They also denied that these delivery orders were taken as equivalent to documents of title by any trade usage in Calcutta. The Calcutta High Court held that (1) [1919] A.C. 801 (807) (2) I.L.R. 38 Calcutta 127.

Four years after the original plaint was filed the appellant sought an amendment of the plaint for introduction of paragraphs 19-A and this amendment the appellant while reiterating that the tendersmade by the appellant of the Mills Pucca Delivery Orders as mentioned in paragraphs 9, 14 and 18 of the plaint were duly made in terms of the contracts between the parties, further pleaded that the delivery orders tendered in respect of the contract mentioned in the plaint were and are proper tenders by virtue of trade customs and usage of the Jute Trade in Calcutta. The particulars of the customs and usage were set out in four sub-paragraphs of Paragraph 19A of the plaint. In Paragraph 19B the appellant alleged that the respondent was at all material times fully aware of the aforesaid Trade customs and usages and dealt with the appellant on the basis thereof. An additional written statement was filed by the respondent on 9th December, 1957, in which he denied 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. It was contended that the Mills' Pucca Delivery Orders were not delivery orders at all and in any event the appellant bad no title to any of them. It was also contended that the delivery orders related to goods deliverable under contract between third parties mentioned in the delivery orders and in any event the goods mentioned in the delivery orders are not goods of the description mentioned in the contracts-between the parties and that when the respondent called for the tender of inspection orders in terms of the contracts. the appellant wrongfully and in breach of contract failed and neglected to tender any inspection order. The custom pleaded was also denied. It was also contended that the delivery orders were not transferable by endorsement and that there were no appropriations of the goods relating to any contract or delivery order. The respondent also denied that the customs or usage ever existed and in any event the customs or usage is inconsistent with the terms of the written contracts and that it was not right to allege that the respondent was aware of! any such customs and dealt with the appellant on that basis.