Decided on March 30,1962



- (1.) THESE appeals arand from the decrees in O. S. Nos. 231 of 1951 and 92 of 1952 respectively of the District Court of Anjikaimal. R, Natarajan, the appellant in both the cases, has the plaintiff in O. S. No. 231 and the defendant in O. S. No. 92. The respondent in both the appeals is Para-suram Perumal, a partner of a firm carrying on business at Bombay. The parties will be referred to as appellant and respondent in this judgment.
(2.) THE transaction which gave rise to the two suits was a contract for sale of 1000 bags of sugar to be sold by the respondent to the appellant. The appellant had paid Rs. 10,000/- as advance towards the price. Each party alleged that the other had committed breach. The appellant sued for recovery of the sum of Rs. 10,000/paid by him while the respondent's suit was for recovery of damages, the amount claimed being the difference between the contract price and the price fetched by sale of the sugar after the appellant refused to take delivery of the same. The court below held that the appellant had committed breach and assessed the damages sustained by the respondent at Rs. 23,396-6-0. Accordingly a decree was given to the respondent for recovery of Rs. 13,396-6-0 after adjusting Rs. 10,000/- against the sum of Rs. 23,396-8-0. In view of the adjustment of Rs. 10,000/- as stated above, no decree was given in O. S. No. 231 of 1951. The appellant has therefore filed these appeals. The respondent has tiled a memorandum of cross objections in A. S. No. 241 of 1957 claiming Rs. 4,321-2-9, in addition to what was decreed. The two appeals were heard together.
(3.) THE main question for decision is who committed the breach of the contract. It is necessary at this stage to state the terms of the contract, Ex. A, dated 24-101951 which was in these terms: "contract between Parasram Perumal and Co, Merchants and commission Agents, No. 1047114, Freera Road, Bombay 9, (hereinafter called the Sellers) on the one part and Messrs. Rajan and Co. , New bazar, Alleppey (hereinafter called the Buyers) on the other part, whereby the Sellers have agreed to sell and the buyers have agreed to buy the following goods as per terms and conditions set out hereunder;-Goods. . . . Vuyyur Factory Sugar of E. 27 Grade Quantity. . . . . 1000 bags (one thousand bags) of 224-lbs net each Despatch. . . . 600 bags to be despatched to Cochin Harbour Terminus 400 bags despatch instructions to be intimated to the sellers by the buyers within 31st Oct. 1951. Goods to be despatched within 21 days from the date of Registration for wagon supplies with the Railways, thereafter further extension or cancellation at buyers' option. Packing. . . Standard packing Price. . . Rs. 1647- (Rupees one hundred and sixty four only) per bag of 224-lbs nett F. O. R. Bezwada including Sales Tax. Payment. . . Railway receipts to be sent through Bank at Cochin deducting the advance of Rs. 10/- per bag in each wagon. Remarks. . , A sum of Rs. 10000/- (Rupees)Ten thousand only) by Bank draft on Bombay representing advance at Rs. 10/- per bag to be paid to the sellers. " The appellant's case in the plaint in O. S. No. 231 was that the respondent informed him by telegram dated 5th and 8th November that sugar had been despatched, that the goods arrived at Cochin Harbour Terminus Station, on or about the 12th, that the respondent wanted to sell the sugar to outsiders as the market was strong at that time but were unable to do so before the price went down and that the appellant sent a telegram to the respondent on the 16th cancelling the contract, to which they replied that they could not agree to the cancellation. The respondent's representative at Mattancherry sent a telegram to the appellant on the 16th stating that he was drawing on the plaintiff through the Canara Bank limited for the price of 400 bags, that 600 bags had been despatch-ed from vijayavada on the 10th November and that he wanted to be told before 6 P. M. on the 17th, whether the defendant was accepting the 600 bags despatched from vijayavada or the same quantity sent earlier from Masulipatam. It was only then that the appellant knew that the earlier consignment of 600 bags was despatched from Masulipatam, contrary to the contract. According to the appellant, the respondents thus failed to perform their part of the contract. The contention of the respondent was that under the terms of the contract they were bound only to despatch from Vijayavada 600 bags within 21 days of registration ot wagons and that even calculating this period from 24th October the despatch from Vijayavada on 10th November was in time and that so far as the 400 bags were concerned they were to despatch the same only within 21 days ot registration of wagons after the appellant informed then* about the destination, that having despatched the same to Cochin on 7th November they had performed their part of the contract and that the appellant refused to take delivery as the price of sugar had fallen by the time the same arrived at Cochin.;

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