Rachhpal Singh, J - (1.) This is a defendants second appeal arising out of a suit to recover damages for breach of contract. Plaintiff 1, the New Sevan Sugar and Gur Refining Company Ltd., through their Agents, Messrs. Bird & Company, and the defendants firm styled Sheo Narain Gopi Ram entered into a contract on 22 June, 1933. Under this contract, the defendants purchased 900 bags of sugar. Under the terms of the contract, the defendants agreed to take delivery of the goods purchased by them in three instalments in the months of July, August a September, 1933. There was a breach and therefore the plaintiffs instituted a suit to recover damages. The defendants firm took various pleas in defence. It was denied by them that they committed a breach of the contract. The amount of damages claimed was also not admitted. There were several other pleas taken in the case; but for the purposes of this appeal, it is not necessary to enumerate them.
(2.) The learned Judge of the trial Court came to the conclusion that the defendants had committed a breach of the contract and that they were liable to pay damages to the plaintiffs. He however was of opinion that the plaintiffs did not exercise their right of re-sale within a reasonable time. In his opinion, the prices were going down and the plaintiffs should have sold the goods much more quickly than they did. For this reason he came to the conclusion that they were not entitled to the full amount of damages claimed by them. There was a deposit with the plaintiffs firm of a sum of Rs. 1400 by the defendants and in the opinion of the trial Court, that amount was more than sufficient to cover the damages to which the plaintiffs, in his opinion, were entitled. The result was that the suit was dismissed.
(3.) There was an appeal by the plaintiffs to the Court of the District Judge of Cawnpore. The learned Judge agreed with the view taken by the trial Court that a breach had been committed by the defendants. He was further of opinion that the plaintiffs were entitled to a decree for the full amount of damages claimed by them. He therefore decreed the suit of the plaintiffs in full. It is against that Order that the present appeal has been preferred. The finding of the learned District Judge that it was the defendant who committed a breach of contract, is a pure question of fact which cannot be disturbed in second appeal. A perusal of the evidence produced in the case goes to show that it were the defendants who were responsible for the breach. The defendants committed a breach when they did not instruct the plaintiffs to send them three hundred bags on 31 July. They were again in breach when they took no steps to give instructions in respect of the second instalment in the month of August. When the defendants committed a breach of the contract, the plaintiffs got a right of exercising their option to cancel the sale and to re-sell the goods and recover damages. In our Opinion the view taken by the learned Judge of the lower Appellate Court on this point is correct. Learned Counsel appearing for the defendant-appellants relied, upon the provisions of Section 60, Sale of Goods Act. This section was enacted for the purpose of dealing with the cases of anticipatory breach . But in our opinion, this does not help the case of the plaintiffs. Section 60 enacts as follows: Where either party to a contract of sale repudiates the contract before the date of delivery, the other may either treat the contract as subsisting and wait till the date of delivery, or he may treat the contract as rescinded and sue for damages for the breach.;