HIDAYATULLAH, - (1.)THE following Judgment of the court wasdelivered by:
(2.)MAHABIR Prashad Rungta, appellant in thesetwo appeals, was plaintiff in his own suit and defendant ina counter-suit filed by Durga Datt, the respondent. The twoappeals have been filed on certificates granted by theJudicial Commissioner, Vindhya Pradesh against a commonjudgment and decree of the Judicial Commissioner's court infour appeals filed by the rival parties, two in each civilsuit. Certificate was also granted to the respondent; buthe did not take steps in that behalf, and we are, therefore,concerned only with the appeals of MAHABIR Prashad Rungta.
The two suits were filed in the following circumstances:Rungta owns a colliery at Budhar in Madhya Pradesh. On 30/10/1950, an agreement was executed between Rungtaand the respondent, Durga Datt. Durga Datt agreed totransport coal from the colliery to the railway station atthe rate of Rs. 2-8-0 per ton for a period of two yearscommencing from 11/11/1950, to No 10/11/1952.That agreement is Ex. P-1. The case of Rungta was thatDurga Datt broke the contract from 29/07/1951, bystopping the work of transport. Durga Datt in his suit onthe other hand, averred that Rungta hadbroken the agreement and work of carriage as a result wasstopped from 30/07/1951. The difference of a day betweenthem is of no consequence. Rungta's case was that as aresult of the breach of the contract on the part of DurgaDatt, he was required to employ other carriers and to paythem at Rs. 3.00 per ton, and he incurred demurrage and damagesto his constituents for delay in supplies. He, therefore,claimed a sum of Rs. 60,000.00 as damages, including Rs. 20,000.00as general damages for loss of business, credit and reputation. He admitted that a sum of Rs. 15,087-5-0 was owedby him to Durga Datt on account of coal carried by thelatter, and he thus claimed Rs. 44,912-11-0, after allowingcredit for that sum.

Durga Datt, in his suit, asked for a decree for Rs. 49,544-12-0. This included Rs. 26,139-11-0 on account of arrearsof bills and Rs. 905-1-0 as interest on the amount. Thebalance (Rs. 22,500) was claimed as damages for loss ofbusiness and profits of the unexpired period of the contractat Rs. 1,500.00 per month. In giving the particulars for Rs. 1,26,139-11-0, Durga Datt stated that he had transported15,844 tons 2 Cwts. of coal to the end of July, 1951, whichwere loaded in the wagons and despatched. He also claimedRs. 7,500 in respect of 3,000.00 tons of coal which he hadtransported to the railway yard, but which had not beenloaded in the wagons. After adjusting sundry amounts andallowing credit for Rs. 21,861-7-6, he claimed Rs.26,139-11-0, as stated above. Durga Datt alleged thatRungta was guilty of breach of the contract, particularly ofcls. (4), (5) and (8) thereof, which compelled him torescind the contract. These clauses may be quoted here:'(4) Petrol :-It will be arranged by party no.1 himself but party no. 2 will help in time ofneed to get the petrol; the expenses incurredby party no. 2 for securing such petrol willbe borne by party no. 1. If party no. 2 inspite of his best efforts cannot arrange forpetrol then in such case party no. 1 will notbe responsible for any loss in regard totransportation of coal.(5) Payment of Bills:-Party no. 2 will makepayment of Bills of party no. 1 for actualdespatch of coal on the 10th of the followingmonths;(8) The road will be kept in repair by party no. 2.'

Thetwo suits were consolidated by the trial Judge, and evidencewas partly recorded separately and partly for the two suitstogether. The trial Judge held that the breach of thecontract proceeded from Durga Datt, and the suit of Rungtawas decreed in the sum of Rs. 12,900.00 as damages due to him.In the other suit, the trial Judge held that Durga Datt wasentitled to a payment of Rs. 26,695-6-6 and a decree for Rs.13,795-6-6 was passed in his favour after setting off thetwo amounts against each other. The rest of the claims inthe two suits were dismissed.

The parties were dissatisfied with the decrees, and fourappeals were filed. The learned Judicial Commissionerreversed the decision of the trial Judge. He held thatRungta was guilty of the breach of the contract, because hehad not made payments to Durga Datt as laid down by el. (5)of the agreement and had not kept the road in repair. Heordered the dismissal of Rungta's suit in its entirety, andreducing the amount decreed in Durga Datt's favour by Rs.918-6-0 for which there was a double charge, he passed adecree for Rs. 25,113-4-0 awarding interest at 6 per cent.per annum on the amount from 1/08/1951, till date ofrealisation.

(3.)IN these two appeals, Rungta challenges (a) the dismissal ofhis suit for damages based on the finding that the breachproceeded from him; (b) the inclusion of Rs. 7,500.00 inrespect of 3,000.00 tons of coal said to have been transportedto the railway yard but not loaded in the wagons; and (c)the award of, and in the alternative the rate of, interest.
The main question in these appeals is, who was responsiblefor the breach of the contract ? The admitted position isthat work stopped about the end of July, 1951. Previous tothe closure of work, each party had written letters ofprotest to the other, Rungta complaining that Durga Datt hadslowed his work and he was suffering loss, and Durga Dattcomplaining that lack of arrangements for petrol, failure torepair the road and the withholding of the money due to himwere making it impossible for him to fulfil the contract.The trial Judge did not accept the case set up by DurgaDatt, and held that he had wilfully stopped work. Thelearned Judicial Commissioner, on the other hand, held thatRungta had unreasonably and in breach of the agreement,withheld large payments and had left the road in a poorstate of repair and thus caused the breach of the contract.He did not attach much importance to the controversy overthe supply of petrol, which controversy was not mootedbefore us again.

Of the two reasons on which Rungta was held responsible forthe breach Of the contract, the important one was thewithholding Of payment. Learned counsel for Rungtacontended that time was not Of the essence Of the contract,and that, in any case, the payment Of bills to Durga Dattdepended upon the presentation Of the bills in time. Fromthe evidence, it appears that when the trucks were loaded,coal was not weighed. It was weighed at the bridge wherethe wagons were loaded, details Of which were either withthe railway company, or with the representative Of Rungta atthe station. Durga Datt was required to obtain theinformation from one source or the other, before he couldmake his bills. How much coal was transported by Durga Dattwas a fact also within the knowledge Of Rungta, and theclause quoted above merely provided for payment Of the billsby the 10th Of the following month, without statingexpressly that the presentation Of bill was a conditionprecedent to the payment. The learned Judicial Commissionerheld, on both the points, against Rungta, and in ouropinion, rightly. Even if the presentation Of the bills beregarded as a condition precedent to payment, it is clearenough that Rungta paid not the whole Of the amounts dueunder the bills but, only small sums from time to time.Learned counsel for Rungta contended that Durga Datt, byreceiving such payments and by not insisting on his rights,must be deemed to have waived payment in a lump sum undercl. (5). But no case Of waiverwas pleaded by him,, and the evidence, if any, cannot belooked into. In any event, an examination Of the accountsbetween the parties discloses that payments were, in fact,withheld. Under the agreement, 10 per cent. Of the billswas to be withheld to build up a security deposit Of Rs.2,000.00, and an amount in excess Of this was withheld by theend Of May. No doubt, the bills were not presented by DurgaDatt at the end Of each month; bills for April and May weresubmitted on 16/07/1951 and bills for June and July, onAugust 6 and 12 respectively. Even so, the indebtedness OfRungta to Durga Dutt stood as follows: JUDGEMENT_990_AIR(SC)_1961Html1.htm These sums were in addition to a security deposit Of Rs.2,038.00. Whatever might be the intent and purpose Of theclause in question, it is clear enough that Rungta waswithholding substantial amounts over a very long periodwithout any reasonable cause. To Durga Datt, the receipt Ofmoney in time was a vital consideration if he was to fulfilhis contract at all. It was not to be expected that hewould go on carrying thousands Of tons Of coal from thecolliery without receiving payments. In our opinion, thesefacts speak for themselves, and amply support the finding Ofthe learned Judicial Commissioner that Rungta was reallyresponsible for hamstringing the work Of Durga Datt. WhyRungta did so is not very clear from the record Of the case,though an 'attempt was made to show that the quantity Ofcoal transported from month to month was falling. Anabstract Of the quantities transported does not support thisallegation. This abstract is Of the quantity loaded inwagons. The figures are almost constant, except in onemonth (April). There were, Of course, variations in thequantity Of coal loaded in the wagons from month to month;but the evidence shows that some coal remained at the sidingin heaps and was not loaded immediately. The variation inthe quantity also might have been due as much to Durga Dattas to the colliery and its output. In our judgment, noinference can be drawn from the abstract, showing thequantities Of coal loaded into the wagons, that Durga Datthad slackened work after May. Learned counsel for Rungtacited some cases in which time was not considered as Of theessence Of the contract. Most Of these cases deal withimmovable property, where a different rule applies. Incommercial transactions, time is ordinarily Of the essence,and in the agreement, with which we are concerned, thepayment Of bills by a particular date was expresslymentioned. The intention, obviously, was that Durga Dattwould receive payments for work executed as soon as theamounts became due. Rungta did not pay these amounts, whichwere also within his own knowledge either by the 10th Of thefollowing month or even within a reasonable time after thepresentation Of the bills. In these circumstances, we areOf opinion that cl. (5) was breached by Rungta.