LODHA, J. - (1.) THIS is a second appeal by the Union of India against whom a decree for Rs. 1052/10/- was passed by the Munsiff, Dholpur and upheld in first appeal by the Civil Judge, Dholpur.
(2.) THE plaintiff-respondent's case as set out in the plaint is that on 13-9-1958 he booked by rail Ex. Gangapur City to Sirmathura 7 bags of barley, 109 bags Bajra and 124 bags of wheat. THE consigned goods should have, in the ordinary course, reached Sirmathura in a week or so, but as a matter of fact they were delivered at Sirmathura after about a month on 12-10-1958. It was found at the time of open delivery of goods that there was shortage of 8 Mds. 31 Srs. of wheat and considerable quantity of grain had been spoiled. It was alleged that the assessment of damage was made at the time of delivery according to which the loss caused to the plaintiff was estimated at Rs. 1075. 75 paisa. On correspondence with the appellant, it is alleged that the plaintiff was offered Rs. 135. 43 paisa only in full and final settlement of the claim which was however refused by the plaintiff. After serving a notice under sec. 77 of the Indian Railway Act and sec. 80 Civil P. C. the plaintiff brought the present suit for Rs. 1152/- inclusive of interest and notice charges in the Court of the learned Munsiff, Dholpur on 14-11-1959. THE Union of India resisted the suit and pleaded that the plaintiff was not entitled to get more than Rs. 135. 43 paisa on account of shortage in delivery of the consigned goods. After recording the evidence led by the parties the learned Munsiff, Dhol-pur decreed the plaintiff's suit for 1052/10/ -. The appeal filed by the defendant, Union of India was unsuccessful and hence this second appeal. Learned counsel for the appellant has urged that the plaintiff is not entitled to claim any damages as he has failed to prove that any loss or damage, which actually arose in the usual course of things, was caused to him on account of the failure on the part of the railway to deliver the consigned goods in perfect condition in time. That the goods were delivered late and further that there was shortage of 8 Mds. and 31 Srs. of wheat was not denied, nor it has been disputed that some bags of grain had been spoiled. , The case of the defendant, however, is that according to the plaintiff's own statement - Jagannath (P. W. I), he was not put to any loss but out of this transaction in grain he made a profit of Rs. 1000/- to Rs. 2000/- by selling it at Sirmathura, the place of destination, and he cannot claims damages on the allegation that he might have made further profits if the contract had been performed punctually and properly by the defendant. The learned first appellate court has come to the conclusion that on account of rise in the price of grain at Sirmathura the plaintiff had not been put to any loss and admittedly made some gain. Even then, according to the learned Judge, 'the defendant was not absolved of the liability to pay damages to the plaintiff on the basis of the profits he might have made if the whole quantity of grain had been delivered in perfect condition. The view taken by the learned Judge does not appear to be sound, In Union of India vs. Baijnath (l) it was observed that where in a contract of sale of goods,the goods are delivered late, the measure of damage is the difference between the market price on the due date of delivery and on the day of actual delivery, as given by S. 73 Illus (e) of the Contract Act. But this test is subject to the main section that the purchaser must prove loss or damage caused to him. Where, however, the purchaser sells the goods after the late delivery, the mere difference in price on the relevant dates is not sufficient to establish the loss. The measure of loss in such a case is the difference between the market price actually obtained by sale of goods. Where the fact of sale is established but the sale price is not proved, the purchaser is not entitled to any damages. In G. A. Jolli vs. The Dominion of India (2) it was observed, "but loss of profits is not an ordinary consequence of delay or default and cannot be recovered unless the circumstances are brought to the knowledge of. the carrier at or before the date of the contract. When the goods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . are lost, and in consequence the plaintiff loses the profits which he could have earned, the value of the lost goods, can be recovered, but not any profits,'' in the absence of proper notice. " In Murlidhar vs. M/s Harishchander Dwarkadas (3) their Lordships were pleased to observe that, "the, two principles on which damages in such cases arc calculated are well settled. The first is that,, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as [good a situation as if the contract had been preformed, but the principle is qualified by a second which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps. " These two principles also follow from the law as laid down in sec. 73 read with the explanation thereof. In the present case the plaintiff has claimed the damages only on the basis of assessment memo prepared at the time of open delivery. All that has been mentioned in the memo is that the damage may be assessed at a certain percentage without prejudice and the plaintiff has calculated the damages purely on that that basis. He has not cared to prove as to what was the rate of the various types of grain consigned prevailing on the due date either at Ganganagar or at Sirmathura. I have gone through the evidence led by the parties and must say that the evidence on that point is conspicuous by its absence. No decree could have been passed merely on the basis of assessment memo prepared without prejudice on percentage basis at the time of open delivery. Apart from that, it is crystal clear from the statement of the plajntiff jagannath (P. W. 1) that he was not put to any loss but had made a profit out of the transaction. It appears that the rate of grain on the alleged due date of delivery i. e. on or about 20 9-1958 was lower than the one at which the plaintiff actuall sold the grain after the delivery on 12-10 58 and that is why he was not put to any loss. Looked at from any angle the plaintiff is not entitled to get any decree on account of damages except the price of the short delivery in wheat i. e. Rs. 135. 43 paisa which the defendant had admitted and had agreed to pay. 11 In the result I partially allow this appeal, set aside the judgment and decree of the lower court for Rs. 1052/10/- and pass a decree for Rs. 135 43 paisa. In the circumstances of the case I leave the parties to bear their own costs throughout. .;