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Banarsi Dass and Co. Vs. Lulla Mal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in29Ind.Cas.950
AppellantBanarsi Dass and Co.
RespondentLulla Mal
Cases ReferredP.K. and Co. v. Bhagwandas Chaturbhuj
Excerpt:
.....that these goods were not up to sample, and he, therefore, by reason of a breach of contract had suffered damage to the extent of rs. in regard to damages it held that though the plaintiff bad failed to prove what damage ho had suffered, still he was entitled, to some damage and awarded 'nominal' damages. the document clearly and distinctly sets forth that the goods shall be shipped to bombay and the meaning clearly is that the purchaser must make his own arrangements to take delivery from bombay and convey to his own shop. it may be that a firm, like that of the defendants, does, as a matter of fact, assist purchasers in getting their goods cleared at bombay and conveyed to their place of business, although it is no part of the contract entered into between the parties. it is not..........that these goods were not up to sample, and he, therefore, by reason of a breach of contract had suffered damage to the extent of rs. 150. many pleas were taken in defence. one raised the question of jurisdiction, namely, that the suit was not cognisable in the court at agra; another was that under the terms of the agreement made between the parties, the dispute had to be settled by arbitration and, therefore, the jurisdiction of the court had been ousted; the third was that the plaintiff had suffered no damages. there were many other pleas which it is unnecessary to mention. the court held that it had jurisdiction, that both parties had thrown on one side the agreement to settle their disputes by arbitration and, therefore, that agreement was no longer binding. in regard to damages it.....
Judgment:

Tudball, J.

1. This is an application for revision arising out of a suit brought in the Court of Small Causes at Agra to recover the sum of Rs. 150 as damages for breach of contract. The plaintiff's case put briefly was, that the appellants had agreed to deliver to him certain goods at certain price in a certain month at Agra, that they had failed to fulfill their contract, that they had subsequently tendered the goods after considerable delay, and that these goods were not up to sample, and he, therefore, by reason of a breach of contract had suffered damage to the extent of Rs. 150. Many pleas were taken in defence. One raised the question of jurisdiction, namely, that the suit was not cognisable in the Court at Agra; another was that under the terms of the agreement made between the parties, the dispute had to be settled by arbitration and, therefore, the jurisdiction of the Court had been ousted; the third was that the plaintiff had suffered no damages. There were many other pleas which it is unnecessary to mention. The Court held that it had jurisdiction, that both parties had thrown on one side the agreement to settle their disputes by arbitration and, therefore, that agreement was no longer binding. In regard to damages it held that though the plaintiff bad failed to prove what damage ho had suffered, still he was entitled, to some damage and awarded 'nominal' damages. The defendants have come here in revision and most of the legal points have been again pressed before me.

2. In so far as the question of arbitration was concerned, it seems to me that the Court below was quite right for it is clear that both parties had thrown over so much of their agreement as related to arbitration. Neither side had attempted to enforce that clause and both sides, as a matter of fact, had gone into Court to enforce their rights. The question of jurisdiction depends entirely upon the contract which was made between the parties. The defendants were agent of an English firm. That English firm manufactured cloth in England, and sold its goods on certain terms which are embodied in a document which has been described in this suit as an 'indent' and which has been signed by the plaintiff in the present suit. According to the terms of that document the goods wore to be delivered in Bombay, and the payment was to be made by the plaintiff at Delhi. The Court below came to the conclusion that because the conditions in question were all set out in English, and the plaintiif did not know that language, therefore, it must be presumed that they did not understand what they were signing. Further, it has come to the conclusion that the plaintiff received an assurance that the goods would actually be delivered to him at Agra on payment by him of the value into the Bank at Agra, and that this assurance was made at the time that the defendant invited the plaintiff to purchase the goods. It would be somewhat difficult, I must admit, to accept the inference drawn by the Court below that as the conditions of the document were in English, therfore, the plaintiff did not understand it. As a matter of fact such documents are very common indeed in this country, and those persons who habitually deal in cotton goods as a rule fully understand all that is set out therein. The document clearly and distinctly sets forth that the goods shall be shipped to Bombay and the meaning clearly is that the purchaser must make his own arrangements to take delivery from Bombay and convey to his own shop. Lastly, the lower Court has held that the contract was not completed on the 16th of December 1912, that on that date the plaintiff signed the document which constituted, an offer to purchase on these terms, that the offer was communicated to the firm in England, accepted by it, and then the acceptance of the offer was sent by the defendants from Delhi by post to the plaintiff at Agra. The contract, therefore, was completed at Delhi and the verbal assurance of a dalal, on the 16th of December 1912, could form no part of the contract. It may be that a firm, like that of the defendants, does, as a matter of fact, assist purchasers in getting their goods cleared at Bombay and conveyed to their place of business, although it is no part of the contract entered into between the parties. On the lower Court's own finding the plaintiff purchased on the conditions entered in the document, and the offer to purchase on these conditions was subsequently accepted. It is not open, in my opinion, to the plaintiff to prove a contract the terms of which are clearly inconsistent with the terms of the written contract. Therefore, in my opinion, no portion of the cause of action arose at Agra and the Court at Agra had no jurisdiction to entertain the suit. The contract was not made at Agra; no portion of it had to be carried out in Agra; delivery was to be at Bombay and payment was to be made at Delhi. It, therefore, seems to me that the decision of the Court below cannot be allowed to stand, But there is another point which clearly affects the plaintiff's case. The lower Court in its judgment was clearly of opinion that the plaintiff had failed to prove what damage he had suffered it was clearly of opinion that the plaintiff refused to take delivery of the goods because, as a matter of fact, the price had considerably fallen and it was to his advantage to refuse to take delivery. Section 73 of the Contract Act clearly lays down that when a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract compensation for any loss or damage caused to him thereby. If Section 73 applies and not Section 75, as has been urged on behalf of the defendants, even then it was for the plaintiff to show that he had suffered from the breach of contract and the extent of his suffering. The finding of the Court below is that, the plaintiff had actually gained instead of suffered, and it has awarded to the plaintiff not the damage which was caused to him by the breach of contract, but what it was pleased to call nominal damages to the extent of Rs. 75. If Section 75 applied to the present case (and I would note that the plaintiff had stated that he did rescind the contract) it is clear that the person who rescinds a contract is entitled to compensation for the damage which he has actually sustained through the non-fulfilment of the contract. Whatever the English Law on the subject may be it is quite clear, in my opinion, that Sections 73 and 75 make it compulsory on the plaintiff to show that he has suffered and the extent to which he has suffered, before the Court can award him damages for the breach of contract. The point was considered in P.K. and Co. v. Bhagwandas Chaturbhuj 10 Bom. L.R. 1113. Mr. Justice Knight who decided that case remarked as follows:

3. 'Studied in the light of this illustration, I am convinced that the Indian Act does not sanction or permit an action for breach of contract of sale save where specific damage is proved to have resulted from that breach. Section 73 not only confines the righi of relief to the party who suffers, but provides how his loss is to be measured, what it is to include and what to exclude and what circumstances the Court must take into account in estimating the loss. For the party who does not prove that he has suffered it provides no relief whatever.' In my opinion on both these points the plaintiff's case ousht to have failed and should have been dismissed. I allow the application. I set aside the decree of the Court below and the plaintiff's suit will stand dismissed with costs in both Courts.


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