R.S.Narula, J. - (1.) THE circumstances giving rise to this Defendant's Regular First Appeal against the decree of the Court of Shri Charan Singh Tiwana, Subordinate Judge, 1st Class, Amritsar, dated December 11, 1959, for a sum of Rs. 7,250 and costs in favour of the Plaintiff -Respondent, are these. The Respondent (hereinafter called the Plaintiff) used to carry on business of cold storage at Verka in district Amritsar. On February 11, 1958, the Appellant (whom I will call Defendant in this judgment) booked space for storage of 2,000 bags of potatoes in the cold storage of the Plaintiff for the period 1st March to 31st October, 1958. Not having been able to utilise the space, the original agreement was varied by a subsequent written contract Exhibit P. 9, dated June 6, 1958, whereby the reservation of the space for storage of potatoes by the Defendant was reduced to that for 1,000 bags at the original contracted rate of Rs. 7.25 P. per bag as hire charges. The Defendant having failed to utilise even that space, ultimately gave notice, Exhibit P. 10, dated June 21, 1958, to the Plaintiff wherein it was stated that for reasons mentioned in the notice, it had not been possible for the Defendant to make use of the space allotted to him in the Plaintiff's cold storage, and that, therefore, the Defendant desired the Plaintiff to allot the space reserved for the Defendant to any other customer on hire immediately on the receipt of the notice. It was further stated by the counsel for the Defendant that the contract entered into by his client with the Plaintiff on June 6, 1958 (Exhibit P. 9) stood cancelled, and that the Defendant would not be liable to pay any hire charges or damages in any event. The Plaintiff immediately sent his reply Exhibit P. 11 through his advocate. In that reply he referred to the previous contract and stated that it was as a matter of concession that on June 6, 1958, the Defendant had been allowed to utilise space for 1,000 bags only instead of 2,000 bags, and that the said concession was given on the assurance given by the Defendant to the effect that he would be fulfilling his obligation. The Plaintiff's reply to the Defendant's notice ended with the following words: Please take (notice) that my clients are keeping the space allotted to you till the end of the season and they do not accept your cancellation as binding on them. Please take note that the contract continues and your liability to pay the rental charges is continuing. You are at liberty if you so desire, to utilise the space. Please take note. The Defendant not having stored any potatoes, the Plaintiff ultimately served notice, dated November 13, 1958, on the Defendant calling upon the latter to pay the former a sum of Rs. 7,250 on account of hire charges for the space allotted by the Plaintiff for the storage of 1,000 bags of potatoes to the Defendant. The amount claimed not having been paid, the suit from which the present appeal has arisen was filed by the Plaintiff in December, 1958.
(2.) IN his written statement, dated March 2, 1959, the Defendant admitted the execution of the agreement Exhibit P. 9, dated June 6, 1958, but stated that it was a new contract, and that even the said new contract had been subsequently cancelled by notice. The Defendant denied that the Plaintiff had reserved space for 1,000 bags of potatoes for him, and disowned liability to pay anything on account of the notice of cancellation, dated June 21, 1958 (Exhibit P. 10), served by him on the Plaintiff. He also claimed that the contract in suit had become impossible of performance, and ultimately stated in paragraph 7 of his written statement, inter alia, as follows: If it is held that the contract was not validly cancelled then in that event, the Plaintiff is guilty of negligence. The Plaintiff was under an obligation to take all reasonable steps to mitigate the loss flowing from the alleged breach, which the Plaintiff did not take and the Plaintiff thus is not entitled to recover hiring charges or damages from the Defendant at all. In reply to the above quoted plea of the Defendant, it was stated by the Plaintiff in his replication, dated March 28, 1959, as below: There was no negligence. The Plaintiff had kept the space reserved. Furthermore it was for the Defendant to bring potatoes for preservation and not for the Plaintiff to search for potatoes for preservation. There was no question of any negligence. The contract was subsisting and it had not been validly cancelled. All other considerations are irrelevant. (3) From the pleadings of the parties, the trial Court framed the following issues: (1) Could Defendant revoke, - -vide notice, dated 21st June, 1958, the agreement between the parties on 6th May, 1958. (2) Could the Defendant not perform his part of the contract due to the circumstances unforeseen and beyond his control? (3) Did the Plaintiff reserve a space for 1,000 bags of potatoes in his cold storage? (4) To what amount of rent and damages, if any, is the Plaintiff entitled?
(3.) AFTER recording evidence of the parties, the trial Court by its judgment, dated December 11, 1959, held that the Plaintiff had on no occasion refused to perform his part of the contract, and consequently the Defendant had no right to put an end to the contract by any unilateral action. Issue No. 1 was, therefore, decided in favour of the Plaintiff. Issue No. 2 was found against the Defendant. Finding on issue No. 3 was recorded in favour of the Plaintiff. The judgment of the trial Court on issue No. 4 is confined to the following three sentences: The terms of the contract Exhibit P. 9 are clear on the point that the Defendant had agreed to pay a sum of Rs. 7/4 as the rent for storing each bag. The Plaintiff was, therefore, deprived of rental charges to the extent of Rs. 7,250 by the breach of the contract on the part of the Defendant. The Plaintiff is, therefore, entitled to recover this amount. At the time of admission of this Regular First Appeal against the abovementioned decree of the trial Court, it was directed by the Motion Bench (D. K. Mahajan, J.) that the decretal amount may be paid to the decree -holder on furnishing security for restitution in the event of judgment -debtor's appeal succeeding. We are given to understand by the learned Counsel for the Appellant, that in pursuance of the said direction, the decretal amount has already been paid in full by the Defendant to the Plaintiff on the latter having furnished the requisite security.;