Sale by description prevails over "as is where is" terms where goods do not match the advertised description.

In a sale by description, goods must correspond with the contract description, and an "as is where is and whatever there is" clause does not cure misdescription. The Kerala HC noted that copper ingots were advertised, but copper alloy ingots were delivered, making the goods commercially distinct. It also held that latent defects not discoverable by ordinary inspection are not protected by caveat emptor or the auction terms. The sale was therefore set aside, and refund of the amount paid towards the sale consideration was allowed.

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Issues: (i) whether the auction sale of the goods could be sustained on the basis of the "as is where is and whatever there is" condition despite the goods not corresponding to the description in the sale notice; (ii) whether the buyer was bound to accept the goods when the defect was latent and not discoverable by ordinary inspection.

Issue (i): whether the auction sale of the goods could be sustained on the basis of the "as is where is and whatever there is" condition despite the goods not corresponding to the description in the sale notice.

Analysis: The governing principle is that an "as is where is" clause and caveat emptor do not override the basic requirement that goods sold by description must answer that description. The sale notice described the goods as copper ingots, but what was found was copper alloy ingots, which are commercially distinct. The clause could not be used to validate a sale where the very identity of the goods supplied did not correspond with the advertised description.

Conclusion: The auction sale could not be sustained on the strength of the "as is where is and whatever there is" condition.

Issue (ii): whether the buyer was bound to accept the goods when the defect was latent and not discoverable by ordinary inspection.

Analysis: Under the Sale of Goods Act, a sale by description carries an implied condition that the goods correspond with the description, and the proviso to the rule on merchantable quality does not protect a seller where defects are latent and could not have been revealed by the buyer's examination. The Court treated the defect as one that was not discoverable on ordinary inspection and held that the buyer could not be compelled to accept defective goods merely because the auction terms contained an "as is where is" clause.

Conclusion: The buyer was not bound to accept the goods, and the refusal to refund could not be sustained.

Final Conclusion: The sale was set aside and the applicant was entitled to refund of the amount paid towards the sale consideration.

Ratio Decidendi: In a sale by description, an "as is where is and whatever there is" clause does not cure a misdescription or a latent defect that prevents the goods from corresponding to the contract description, and the buyer is entitled to relief where such defect could not be discovered by ordinary examination.

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