Sarjoo Prosad, C. J. - (1.) THE defendants have preferred this second appeal which arises out of a suit for recovery of damages on account of breach of contract.
(2.) BRIEFLY speaking, the case of the plaintiff is that he carried on trade in silver and gold Mohars through the agency of the defendants and he proposed to sell 2800 gold Mohars through the defendants on Baisakh Sudi 5, Smt. 2001 Vaida. By a telegram, dated Baisakh Sudi 4, he accordingly asked the defendants to purchase 2000 Mohars of gold on the basis of that contract; but the defendants negligently and dishonestly did not carry out the transaction until Baisakh Sudi 6, by which time the price of gold had considerably gone up and thereby the plaintiff incurred a loss of Rs. 1278/2/- which he sued to recover by way of damages. The measure of damages was the difference in the price of gold Mohars which prevailed on Baisakh Sudi 4 and that which prevailed on Baisakh Sudi 6, on which the gold Mohars in question were purchased by the defendants. The defendants in their written statement denied that there was any negligence or dishonesty on their part with reference to the transaction in question. They alleged that the telegram which is alleged to have been sent by the plaintiff on Baisakh Sudi 4, Smt. 2001 was actually received by them on Baisakh Sudi 5 at a rime when the market was about to close and they could not, therefore, carry out the transaction until the following day i. e. , on Baisakh Sudi 6. They also submitted that in the telegram, there was no time limit mentioned, nor was any price specified by the plaintiff and, therefore, they were within their rights to execute the transaction on the 6th and no breach of contract was committed by them so as to make them liable for damages. They also pleaded that the plaintiff had ratified the transaction and was not entitled to recover anything on that account. The courts below have decreed the plaintiff's suit and hence this appeal. The learned counsel for the appellant has formulated a number of points. At the outset, it should be observed that the only point which was urged in the Court of appeal below was the question whether under sec. 211 of the Contract Act, the defendants as agents had incurred any liability on account of the transaction. No other question was urged before the court below and in the circumstances, the court held that the defendants were guilty of negligence and thereby caused loss to the plaintiff in not purchasing the gold Mohars on the 4th as directed by the plaintiff. The first contention of the learned counsel is that the suit was barred by limitation. " This contention was never raised either in the trial court or in the court of appeal below; nor does it find place in the grounds of appeal taken before this Court. Learned counsel, however, strenuously argues that the decision of the question depends entirely on facts admitted by the plaintiff and that the suit was manifestly barred. The cause of action for the suit is said to be Baisakh Sudi 4, Svt. 2001, the date on which the telegram was sent. The learned counsel suggests that according to the calendar prevailing in Marwar and approved by the then Government of Marwar, it should correspond to 13th May, 1944, and since the suit was filed on the 7th of May, 1948, the suit was clearly barred by limitation. It is not disputed that Art. 90 of the Marwar Limitation Act applied to the case and under that article, the suit should have been filed within three years of the date of the cause of action. Reliance has been placed on behalf of the defendants on a decision in Karimbux vs. Jahoor Mohammad (1), where it was held that so far as the courts in Marwar were concerned, they were to be guided by the calendar published under the authority of the Marwar Government in which the Hindi dates are given according to the local calendar which is based on the Vikram Smt. as calculated according to the method prevalent here; and if a departure were to be made from that method of calculation, it would lead to endless confusion and would be against a long established practice. In that case the appellant had sought to rely upon the Banaras Calendar for calculation of dates, but the learned Judges refused to accept that as a proper guidance and held that the Marwar Government Calendar should be followed in such cases. The position in this case, however, is different. Here it has been rightly pointed out that the books of account were changed from Sawan Vadi 1, and, therefore, the corresponding year as it was shown to me from the book of account itself was 15th May, 1945, and not 13th May, 1944, as suggested by the learned counsel for the appellant. The judgment of the trial court also shows that the corresponding date of Baisakh Sudi 4, Svt. 2001, the date of the cause of action, according to the Gregorian Calendar was 15th May, 1945, and no exception was taken to it at any stage by the learned" counsel for the defendants. It is, therefore, now too late in the day to raise this question before this Court in second appeal. As the Privy Counsel pointed out in Virayya vs. Adenna{2) that although the plea of limitation may be raised in the written statement and in the grounds of appeal, if no issue is directed to bear upon the question before the trial Judge and the point was not taken at the Bar during the trial, it would not be allowed to be raised in appeal. Here the position is much worse. The point was not contested at any stage and it is only for the first time that the learned counsel for the appellants seeks to raise it before this Court. In the circumstances, I cannot entertain that ground. It seems to me clear that if the date of cause of action is 15th May, 1945. as it has been shown by the trial court, then the suit is not barred by limitation; and the learned counsel for the respondent has rightly contended that if the point had been raised earlier, he could have shown to the satisfaction of the courts below that the corresponding date as given by the plaintiff was correct and borne out by the books of account maintained by the parties. The next contention of the learned counsel refers to the point of ratification. That was the subject-matter of the second issue before the trial court which gave its finding in favour of the plaintiff and held that there was no ratification. The finding of the trial court was not at all contested as it is apparent from the judgment of the lower appellate court; and it is obviously so because the dealings continued between the parties even after this transaction. Though the claim of the plaintiff was subsisting, there was no adjustment of accounts and, therefore, the plaintiff had no reason to assume that the claim would not be adjusted. It is further pointed out that although a notice was served upon the defendants in respect of this claim, they did not reply to this notice and the only plea taken in the written-statement was that no such reply was given because the claim, was false. It is rightly contended by the learned counsel for the respondent that if in fact the claim was false and the plaintiff had ratified the contract and foregone his claim then the defendants would have immediately replied to the notice in those terms. Then again it is to be found that the Munim of the plaintiff deposed that the defendants admitted their negligence in the transaction and promised to make an adjustment. This evidence appears to have been believed by the two courts below. I, therefore, see no reason to think that the point of ratification has been incorrectly decided in favour of the plaintiff. The trial court correctly decided that there was no ratification and that there was no oversight on the part of the court below in not dealing with that point on appeal. In my opinion, the point was not seriously pressed before that court in view of the circumstances stated above. The third contention of the learned counsel is that the fact of sending the telegram on Baisakh Sudi 4 as alleged by the plaintiff has not been duly proved; nor has it been shown that this telegram was actually received by the defendants on the 4th within business hours. That the telegram was received by the defendants has not been disputed and the defendants were the best persons to produce the telegram in question in order to show that the telegram was received by them not on the 4th, but received by them when business was closing on the 5th. The defendants not having done so, the courts below were justified in raising an inference against them on account of non-production of the telegram in question. The plaintiff, on the other hand, has proved a copy of the telegram as entered in his books of account and his witnesses have deposed that such a telegram was sent on the 4th as alleged by him. In the normal course of business, the telegram must have been received within a couple of hours of its despatch. It is true that there is an error of record in the judgment of the court below where it says that the telegram as stated by the plaintiff was sent at 10 a. m. on the 4th. That may not be correct. Even so, the circumstances do suggest that the telegram must have been sent at an early hour so as to reach the defendants in time in order to enable them to transact the business in question. If the evidence of the Munim Pukhraj (P. W. 4) and the other witness Shrikishan (P. W. 5) is to be accepted, as it has been accepted by the court below, it is obvious that the telegram was received by the defendant on the 4th and yet he negligently sat over the matter and did not carry out the transaction until the 6th. The court below has referred to the evidence of the Munim Pukhraj. The Munim stated that the telegram was sent on Baisakh Sudi 4 and he himself reached there on the 5th at 7 P. M. taking with him 475 gold Mohars for ready delivery in compliance with the contemplated transaction of sale. On enquiry from the defendant, the Munim was told that the telegram had been received by the defendant the same day, but he forgot about it and hence the transaction was not completed until the 6th. The defendant also admitted that by that time the price of gold Mohars had gone up and that he was prepared to settle up the matter with the plaintiff. As an agent, it was the duty of the defendant to carry out the transaction with promptitude for the benefit of the principal particularly when he knew that the prices were tending to rise and the defendant not having acted in a manner which was in consonance with business custom, he must be held liable for any loss which resulted to the plaintiff on account of his negligence. It was not necessary for the plaintiff to mention in the telegram any time or specify the price. The parties were businessmen and the plaintiff intended to make some profit on account of the rising prices of gold Mohars It is obvious that the plaintiff by sending the telegram in question intended that the transaction should be completed immediately at the prevailing price at the time and not that it should be delayed so as to make him purchase the gold Mohars at a much higher price. The courts below were, therefore, justified in decreeing the plaintiff's claim and holding that the defendant was responsible for the damages caused to the plaintiff. The measure of damages has been rightly calculated by the courts below on the basis of the difference between the price prevailing on Baisakh Sudi 4 and the price prevailing on Baisakh Sudi 6, as claimed by the plaintiff. 7. Another point which the learned counsel for the appellants raised in this connection was that no pendente lite interest should have been granted by the court below when there was no claim for interest on the amount of damages itself; There is no substance in this contention. Pendente lite interest is within the discretion of the court and there is no reason why this interest should not have been given to the plaintiff. The appeal is without any merit and must be dismissed with costs and the decision of the court below must be upheld. . ;