Decided on August 13,1973



- (1.) PLAINTIFF has appealed from the reversing decision of the A. D. M. (J.), Berhampur dated 9-8-1969 passed in M. A. No. 2/69 (M. A. No. 7/68 GDCT) dismissing his suit.
(2.) HE instituted the suit out of which this second appeal arises for recovery of damages for breach of contract from the defendants, making them jointly and severally liable for the same. The quantum of damage claimed is the sum of Rs. 1,000/- together with interest at the rate of 6 p. c. p. a. pendente lite from the date of the suit till the date of the decree and subsequent interest at the rate of 6 p. c. p. a. from the date of the decree to the date of realisation. The defendants are 5 in number. Defendant No. 1 is the partnership firm represented by defendants 2 to 5. According to the plaintiff, the contract with the defendant' firm came about this way. On 24-10-1965 he made an offer to the defendant's firm to purchase one wagon of 265 bags of ragiat the rate of Rs. 61/- per bag of 83 K. Gs. with new gunny F. O. R. (free of railway freight ). The defendant was to despatch the goods to Bangalore after loading them In the Railway wagon at Khurda Road railway Station. The defendant's firm sent a wire to plaintiff accepting the offer and calling upon the latter to pay Rupees 1,000/- in advance. This advance amount was paid by adjustment of Rs. 500/- due to the plaintiff from the defendant's firm On a prior account and by paving Rupees 500/- on cash through the State Bank of India Draft dated 27-10-1965. The contract was therefore, completed on 27-10-1965. Thereafter, the plaintiff made various enquiries from the defendants through phone on 3 occasions i. e. 29-10-1965, 3-11-1965 and 811-1965 to find out if the goods were despatched and, if not calling upon the defendants to despatch the same to Bangalore. Before the goods could be despatched on 9-11-1965 Government of Orissa promulgated an order prohibiting the export of Ragi from Orissa with effect from the date of promulgation. On completion of the contract with the defendant's firm, the plaintiff had entered into a forward contract with a party at Bangalore to supply ragi at the rate of Rs. 65/per bag. On account of breach of contract committed by the defendant's firm, his contract with Bangalore party failed and, in consequence, he suffered a loss of Rs. 4/- per bag. He has, therefore, claimed a refund of Rs. 1,000/- paid as advance and a sum of Rs. 1,060/- as loss of profit sustained by him. He, however, has limited his claim to Rs. 1,600/- after giving up Rs. 460/ -.
(3.) THE defence case is that there was a contract to sell 265 pass of rice at the rate of Rs. 61/- per bag of 83 K. Gs. with new gunny F. O. R. but there was no condition stipulating that the defendant's firm is to despatch the goods to Bangalore. The contractual obligation of the defendant's firm will continue till they loaded the goods in the wagon at Jatni Railway Station. Subsequently the plaintiff intimated the department on phone on 29-10-1965 that the goods should not be despatched until the plaintiff's agent came and approved the quality of the goods. The plaintiff delayed in sending his agent and ultimately told him over phone on 8-11-1965 that his man will Come on 11-11-1965. The plaintiff did not take any further steps to take delivery of the goods. Thus the contract failed on account of laches of the plaintiff. They suffered loss to the tune of Rs. 1,900/-which represents the difference between the contracted price and the market price at which he was compelled to sell the goods intended to be delivered to the plaintiff in the local market. The defendant have claimed Rs. 1,900/- as damages against the plaintiff and have paid court-fee thereon.;

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