S.N. Modi, J.
1. These two civil regular first appeals arise out of two cross-suits which were consolidated and disposed of together by one common judgment of the learned Senior Civil Judge, Jaipur City, dated 29th September, 1958.
2. Briefly put the facts relevant to the controversy which now remains between the parties, are that Ramdeo and others entered into contracts for the forward purchase of 600 bales of Bardana (gunny bags) of Mah Sudi Poonam delivery (waida) with the firm Messrs. Birdhichand Sumermal on different dates between Posh Badi 10 and Posh Sudi 1, Smt. 2000, at varying rates between Rs. 81/6/- and Rs. 82/8/-. One bale contained 500 bags and the price of 100 bags was quoted as the rate. Messrs. Birdh chand Sumermal did not deliver the bags to Ramdeo and: others who filed a suit on 4-4-1947 (subsequently registered as suit No. 45 of 1952) against the firm Messrs. Birdhichand Sumermal and its partners Gambhirmal and Tikamchand. It was alleged in para three of the plaint, as originally filed, that, according to the usage of the market at Sambhar, where the contract was entered into, the goods of Poonam delivery are delivered from, Badi 1 to Badi 5 of the succeeding month and the payment of the price of the goods is also made by Badi 5 of the succeeding month. The plaint was subsequently amended and it was also pleaded that the usage further was that in case the delivery of the contractual goods is not given or taken by Badi 5 of the succeeding month, the profit or loss is paid or received according to the highest market rate on Badi 5.
3. Further, it was pleaded by Ramdeo and others that despite demands Messrs. Birdichand Sumermal did not deliver goods by Phagun Badi 5 or even subsequent to that date and thereby committed breach of contract on Phagun Badi 5 as that was the last date on which the delivery could be made as per usage. It was alleged that the highest rate on Phagun Badi 5 was Rs. 105/-. Ramdeo and others therefore claimed in their suit damages amounting to Rs. 77,851/9/-. Messrs. Birdhichand Sumermal and its partners contested the suit on various grounds, inter alia, that the delivery of the goods could be demanded under the contract only on Mah Sudi Poonam. that there was no usage of the market as pleaded and that it were the plaintiffs (Ramdeo and others) who committed breach of contract, as they did not demand delivery on Mah Sudi Poonam on payment of price.
4. Messrs. Birdhichand Sumermal, then, filed a cross-suit on 18-1-49 (subsequently registered as No. 51 of 1952) against Ramdeo and others. In addition to the allegations made in the written statement of the earlier suit, Messrs Birdhichand Sumermal and its partnters alleged that they kept the goods which Ramdeo and others had contracted to purchase and when the latter did not take delivery despite repeated requests, they sold the goods at a loss. A sum of Rs. 73,751/- was claimed as damages for breach of contract from Ramdeo and others.
5. These cross-suits were consolidated and tried together by the learned Senior Civil Judge who dismissed the suit filed by Ramdeo and ors, and decreed the suit filed by Messrs. Birdhichand Sumermal for Rs. 12000/10/-. Ramdeo and others have filed these two appeals against the said two decrees.
6. The trial court framed as many as sixteen issues but, for our purposes, the relevant issues are the following:
3. Whether in the Bardana market at Sambhar, there exists a trade usage as detailed in para No. 3 of the plaint as amended?
4. Whether 660 bales were sold by the defendants subject to the usage as detailed in para No. 3 of the plaint?
5. Whether the plaintiff made oral demands for delivery and sent a letter on 8-2-1947 demanding' delivery from the defendants?
6. Whether the defendant No. 3 on 15:2-1947 by telegram intimated the firm at Sambhar not to deliver any goods to the plaintiffs?
7. Whether on Phagun Badi 5, 8, 2003, the price of the gunny bags of the contractual variety in the Sambhar market was Rs. 105/-per hundred bags?
8. Whether the plaintiff is entitled to get Rs. 77851/9/- as damages?
11. Whether proof of usage described in para No. 3 of the plaint is admissible? If so, what is its effect on the contract?
13. Whether the defendants are entitled to get Rs, 73,751/- as damages from the plaintiffs as detailed in para No. 10 of the plaint in suit No; 51 of 1952
7. In these issues, Ramdeo and others have been averred to as plaintiffs and Messrs. Birdhichand Sumermal and its partners as defendants. For the sake of convenience, we would also assign the same names in this judgment. It may be mentioned here that the other issues(other than the aforesaid) were decided in favour of the plaintiffs by the lower court and their correctness is not challenged before us
8. Now, we proceed to decide the aforesaid issues. Before we do so, we may point out that the learned Senior Civil Judge has committed grave error in basing some of his findings on the evidence which was produced in another suit-filed by Ramdeo and others against Messrs. Jain Gommercial Company wherein similar contracts of purchase of 1120 bales of bardana of Mah Sudi Poonam Waida were involved. One of the partners of Messrs. Jain Commercial Company was no doubt Gambhirmal who is the defendant before us, but the firm Messrs. Birdhichand Sumermal was not a party to that suit. The contracts, too were different. In the circumstances, it was not proper on the part of the learned Senior Civil Judge to use evidence and findings of that case for the decision of the present case.
Issue Nos. 3, 4 and 11.
9. The learned Senior Civil Judge held that the evidence of usage was admissible in this case and that Ramdeo and others had succeeded in proving part of the usage set up by them, namely, that goods of Poonam delivery are delivered from Badi 1 to Badi 5 of the succeeding month and the payment of the price of the goods is also made by Badi 5 of the succeeding month. He further held that the plaintiffs had not succeeded in proving that if goods are not delivered by Badi 5, profit or loss is paid or received according to the highest market' rate prevailing on Badi 5. He further held that the contractual bales were sold subject to market usage. He thus decided issues Nos. 4 and 11 in favour of the plaintiffs and issue No. 3 partly in favour of the plaintiffs and party in favour of the defendants. Learned counsel for the plaintiffs is satisfied with the findings arrived at by the learned Senior Civil Judge, but the learned counsel for the defendant has challenged their correctness.
10. We first take up issue No. 11 relating to the admissibility of evidence of the usage. Section 1 of the Indian Contract Act provides that nothing contained in it shall affect any usage or custom or trade, not inconsistent with the provisions of the Act. The usage which has been found to have been proved, namely, that goods of Poonam delivery are delivered from Badi 1 to Badi 5 of the succeeding month is rot inconsistent with any of the provisions of the Contract Act. The contention on behalf of the respondents, however, is that under the express terms of the contract entered into between the parties, delivery of goods was to be given on Poonam, but, since under the alleged usage, delivery could be given after Poonam, between Badi 1 and Badi 6 of the succeeding month, it is inconsistent with the written contract and evidence in respect of such usage is inadmissible. This argument is untenable. In this connection, we may refer to the following passages in the judgment of McNair J. in Bejoy Krishna Saha and Ors. v. North Bengal Sugar Mills Co. Ltd. AIR 1949 Cal. 490--
It is suggested that such evidence cannot be accepted here because in a for contract the seller's obligation is only to bring the goods to the Railway premises, and the usage alleged is repugnant to or inconsistent with the express terms of the contract in that it casts on the mills the additional obligation of finding wagons.
To this argument the words of Lord Campbell C. J. in Humfrey v. Dale are a complete answer: (1857) 7 E 1. and B 1. 226 at pp. 274-275: (26 L. J. Q. B. 137)--
In a certain sense every material incident which is added to a written contract varies it makes it different from what it appeared to be and so far is inconsistent with it If by the side of the written contract without, you write the same contract with the added incident the two would seem to import different obligations, and be different contracts. To take a familiar instance by way of illustration: on the face of a bill of exchange at three months after date the acceptor would be taken to bind himself to the payment precisely at the end of the three months; but, by the custom, he is only bound to do so at the end of the days of grace, which vary, according to the country in which the bill is made payable, from three upto fifteen The truth is that the principle on which the evidence is admissible is that the parties have not sat down on paper the whole of their contract in all its terms but, those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and unvarying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract unless they expressly exclude them To fall within the exception, therefore, of repugnancy, the incident must be such as if expressed in the written contract would make it insensible or inconsistent.
11. The next important question which arises for consideration is as to what are the attributes of a binding usage. In our opinion, a trade usage is a usage so general and well-known and properly understood in fact with reference to the business that the parties are presumed to have made their contracts with tacit reference to it and to have intended to be governed by it the same way and to be same extent as other like persons in like cases. This was explained by Sir John Coleridge in delivering the judgment of the Judicial committee in Jagmohan Ghosh v. Maikchand 7 Moore's I.A. Cases 263--
It remains now to consider the other ground on which the plaintiff relied: the evidence of mercantile usage To support such a ground, there needs not either the antiquity, the uniformity, or the notoriety of custom, which in respect of all these becomes a local law. The usage may be still in course of growth; it may require evidence for its support in each case; but in the result it is enough if it appears to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract. (Page 282)
Bearing in mind the above principles, we now proceed to examine the evidence on issue No. 3 It is contended on behalf of the defendants that the learned Senior Civil Judge was wrong in holding that the plaintiffs had succeeded in proving the usage that (1) goods of Poonam delivery are delivered from Badi 1 to Badi 5 of the succeeding month and that (2) payment of price of the goods is also made by Badi 5 of the succeeding month. In our opinion, there exists over whelming evidence on the record to prove the first part of the usage, namely, that goods of Poonam delivery are delivered from Badi 1 to Badi 5 of the succeeding month. P. W. 1 Shyamlal, P.W. 2 Jamnalal; P.W. 4 Gulab Chand, P.W. 5 Madanlal, P.W. 7 Govindram, P. W. 9 Kistoormal, P.W. 10 Ramswaroop. P.W. 14 Ramniwas, P.W. 15 Mangalram, P.W. 17 Ram Niwas and P.W. 21 Ramdeo have clearly deposed that in Smt. 2003. according to the usage prevalent in the market at Sambhar. goods of Poonam delivery used to be delivered from Badi 1 to Badi 5 of the succeeding month. Out of the aforesaid witnesses, P.W. 1 Shyamlal, P.W. 2 Jamnalal, P.W. 7 Govindram, P.W. 14 Ramniwas, P. W. 15 Mangalram, and P. W. 17 Ram Niwas are all brokers and P.W. 4 Gulabchand, P.W. 9 Kastoormal and P.W. 10 Ramswaroop are dealers in bardana at Sambhar. The remaining two witnesses P.W. 5 Madanlal and P.W. 21 Ramdeo are the plaintiffs who were also dealers in bardana P.W. 2 Jamnalal, P.W. 4 Gulabchand, P.W. 7 Govindram, P.W. 10 Ramswaroop, P.W. 14 Ramniwas and P.W. 17 Ram Niwas have further stated that the said usage has been in vogue for the last 15 to 20 years except for one year before Smt. 2003 when the Chamber of Commerce was framed and during that period of one year all the transactions of bardana took place as per rules of the Chamber of Commerce Some of these witnesses have also given instances where the said usage was followed. Not only that, the defendants' munim Champalal D.W. 4 himself admitted in his statement that in Smt. 2003 goods of Poonam Badi could be delivered on payment of money by Panchmi of the succeeding month In the defendant's evidence the only persons who denied the said usage are D.W 6 Gambhirmal who is defendant and D.W.5 Motilal who is Secretary of Messrs Jain Commercial Company of which defendant Gambhirmal is the managing director. Both of them being highly interested witnesses, their denial of the usage carries no weight. In our opinion, the learned Senior Civil Judge rightly held that in Smt. 2003 the usage was that goods of Poonam delivery were delivered from Badi 1 to Badi 5 of the succeeding month. As to the second part of the usage, namely, that the payment of price of the goods delivered on Badi 1 to Badi 5 used to be made by Panchmi. We may say at once that the finding arrived at by the learned Senior Civil Judge in that respect cannot be accepted for there is no evidence to support this part of usage. Section 32 of the Sales of Goods Act, however, lays down that the delivery of goods and the payment of price are concurrent conditions and therefore the price is payable at the time of the delivery. We therefore hold as a matter of law rather than that of usage that the price was payable between Badi 1 and Badi 5 on the delivery of the goods.
Issue No. 5
12. In deciding this issue the learned Senior Civil Judge framed the following three points for determination -
1. Whether the plaintiffs had the requisite money with them at the time of asking for the delivery of goods.
2. Whether the defendants had the goods of contractual quality in the possession at that time.
3. Whether the plaintiffs were ready and willing to take delivery of the goods and the defendants too were ready and willing to give delivery of goods.
On point No. 1 he held that Ramdeo and others did not have the requisite money with them at the time of asking for delivery of goods. On point No. 2 he held that firm Birdhichand Sumermal had the goods of contractual quality in their possession. On point No. 3 he held that Ramdeo and others demanded the delivery of goods but the demand was not sincerely made and they were not ready and willing to pay the price. He decided issue No. 5 against the plaintiffs.
13. We are unable to agree with the finding of the learned Senior Civil Judge on issue No. 5.
We may refer to to following provisions of law:
Sales of Goods Act.
Section 31--It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.
Section 32.--Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller shall be ready and willing to give possession of the goods to the buyers in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods.
Section 35--Apart from any express contract, the seller of goods is not bound to deliver them until the buyer applies for delivery.
Section 51--When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perfoam his promise unless the promise is ready and willing to perform his reciprocal promises.
Civil Procedure Code
Order 6, Rule 6--Any condition precedent, the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the plaintiff or defendant, shall be implied in his pleading.
We are of opinion that readiness and willingness of the plaintiff to perform his part of the contract being a condition precedent is necessarily implied and it is for the defendant, if he contests that fact, to raise the matter expressly in pleadings. We are supported in this view by the decision of a Division Bench of the Lahore High Court in Firm Kanwar Bhan v. Firm Ganpat Rai AIR 1926 Lah. 318. The learned counsel for the respondents was unable to cite any decision in which a contrary view might have been taken.
14. We have examined the written statement of firm Birdhichand Sumermal. In reply to the allegation in the plaint that various demands for delivery were made, but the defendants failed to deliver the goods, the latter asserted that no demand was ever made and that the defendants did not commit any breach of the contract, but it were the plaintiffs who committed it. The defendants maintained that under the contract, delivery was to be made on Mah Sudi 15 and the plaintiffs did not tender the amount and demand delivery on the due date though all the said bales were lying in the defendants' godown to be delivered to the plaintiffs in performance of the said contract. It was not alleged in the written statement that the plaintiffs were not in a position to make payment for the goods. It was not even put in cross-examination to the wifnessts examined on behalf of the plaintiffs that the plaintiffs were not in a position to make payment or that they did not have the amount of cash with them. In the absence of any allegation in the written statement or any suggestion to the plaintiffs' witnesses during their cross-examination, it was not necessary for the plaintiffs to produce their account books to prove that they had the required amount of cash in hand on the dates on which it is alleged that money was taken and tendered on behalf of the plaintiffs. In our view, it is not the requirement of law that before asking for delivery the buyer must tender the price.
15. In Bank of India v. J. A. H Chinoy AIR 1950 PC 90, their lordships of the Privy Council held--
The appellate Court found on the evidence that Jamsetji was ready and willing to fulfill his financial obligation under the sale. Their lordships agree with this conclusion and the grounds on which it was based. It is true that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate court had ample material on which to found the view it reached. Their Lordships would only and in this connection that they fully concur with Chagla A.C.J. when he says:
In my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advances on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England, would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2.
In Shriraw Rupram v. Madangopal Gowardhan 30 ILR (Calcutta Series) 865, Lord Macnaghten delivering the judgment of the Board observed:
As regards the ground on which the Judge of First Instance decide the case against the respondents, it is to be observed that there was evidence that the respondents called upon the appellant to carry out the bargain and that he refused to do so. It is true that no tender was actually made, but the respondents, naturally enough in view of a rising market, were ready and willing to carry out the bargain on their part, and it is proved that they made preprations with the object of having the money ready in hand. More than this they were not required to do by the Indian Contract Act, which provides, by Section 51, that 'when a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
In the present case, the contracts were entered into wrongly at the rate of Rs. 82/- and it is admitted that that the rate on Poonam was Rs. 86/-. Again it is admitted that the rate kept on rising till Phagun Badi 19. On Phagun Badi 5, the rate fluctuated between Rs. 93/- and 105/-. There are strong circumstances in favour of the plaintiffs which have to be taken into consideration in coming to a finding whether the plaintiffs demanded delivery and whether they were ready and willing to pay the price. P.W. 21 Ramdeo, the plaintiff, has stated that on the relevant dates, he was having cash credit limit in the Imperial Bank of India, the Central Bank of India and the Punjab National Bank of India to the extent of Rs. 50,000/-, and 6,25.000/- respectively. He has further produced Ex. 18 which is a copy of the ledger of the Punjab National Bank, Sambhar Lake, showing that the plaintiffs firm had cash credit limit with the said bank to the extent of Rs. 6,25,000/-. As already stated above, not a single question was put to Ramdeo in his cross-examination whether there was sufficient amount with him to take delivery of the goods. It further appears from the statement of the plaintiff Madanlal P.W. 5 that he called upon the defendants' munim on Badi 1, 3 and 5 to carry out the delivery of the contractual goods but the defendants' munim Champalal refused to do so under the pretext that the firm's partner Tikamchand was out of station. P. W. 5 Madanlal further says that when he went to the defendants' firm, he took with him Rs. 25,000/- on the Badi 1 and Rs. 2,50,000/- on Badi 3 and on Badi 5. He is supported by P. W. 19 Jiwanram and P.W. 20 Surajmal. The learned Senior Civil Judge has disbelieved the above version of the plaintiffs on the ground that the sum Rs. 2,50,000/- which is said to be taken by Madan Lal to the defendants' firm, was not debited to Madanlal in the plaintiffs' account books. In our opinion, it was not necessary to make such an entry in respect of the amount in the account books. It was also been marked by the learned Senior Civil Judge that if the plaintiffs had the requisite money, they would have deposited the same with the defendants. This argument is also without substance because the money could only be paid to the defendants at the time of the delivery of goods. The evidence shows that on Badi 5 the plaintiffs were required to take delivery of 660 bales from Messrs Jain Commercial Company, and 660 bales from the defendants. Had all these bales been delivered, the plaintiffs would have been required to pay near about Rs. 6,00, 000/- which they were in a position to pay in view of the cash credit limit with banks. The plaintiffs had thus the requisite capacity to pay the price when they asked for delivery from the defendants.
16. It has been contended on behalf of the defendants that the statements of P. W. 5 Madan Lal. P.W. 19 Jiwanram and P.W. 20 Surajmal are not reliable on account of certain discrepancies. P. W. 5 Madanlal has stated that on Badi 5, he went to the defendants firm only once at about 11 a. m. but P. W. 19 Jiwanram has stated that he went to the defendants' firm along with P. W. 5 Madanlal twice on that day. on at about 11 am to demand delivery of goods relating to the contracts in dispute and second time, to demand delivery in respect of the transactions with Messrs. Jain Commercial Company. On the other hand, P.W. 20 Surajmal has stated that on Badi 5 he along with P.W. 5 Madanlal and P. W. 19 Jiwanram went to the defendants' shop to demand delivery at 2 p.m. These discrepancies are there but they are not material. Such discrepancies were bound to occur in their evidence as their statements were recorded after the expiry of a long period of eight years.
17. We now take up the next question whether the defendants had the goods of contractual quality in their stock. It is significant to note that the defendants in their written statement denied that the transactions related to gunny bags of Birat Sajanwa Mills. This was, however, admitted during the course of the trial of the suit. When the defendant Gambhirmal came into the witness-box, he stated that on Mah Sudi 15, Smt. 2003, he had the stock of 3234 gunny bags of Birat Sajanwa Mills. He further stated that when the plaintiffs did not take delivery of 660 bales, they were sold in the market at a loss. He has produced copies of relevant entries from Bardana Bahi showing stock and sale of gunny bags. It is significant to note that in the account books, it is no where mentioned that the bales sold or in stock were of Birat Sajanwa Mills. On the contrary, the account books show stock of Bada Bardana. The defendant in his statement attempted to explain that by Bada Bardana he meant gunny bags of Birat Sajanwa Mills, but the explanation does not appear to be true. The plaintiffs examined P.W. 22 Surajmal and P.W 23 Jankilal who purchased Bada Bardana out of the stock meant for delivery to the plaintiffs. Both of them have stated that the gunny bags which they purchased were not of Birat Sajanwa Mills. That clearly shows that the defendants had no stock of gunny bags of Birat Sajanwa Mills.
18. The third point relates to the fact whether the plaintiffs were ready and willing to take delivery of goods and whether the defendants too were ready and wilting to give delivery of goods. In view of our finding that the defendants had no stock of contractual goods, it follows that they were not in a position to give delivery of goods. Again, in view of our finding that the plaintiffs had requisite amount of money and that the market rate of the goods had gone up reasonably lead to the inference that the plaintiffs must have asked for delivery of goods. There is also positive evidence of P.W. 5 Madanlal, P.W. 19 Jiwanram and P. W.20 Surajmal to show that on Phagun Badi 1, 3 and 5, P. W 5 Madanlal called upon the defendants' munim D.W. 4 Champalal and requested him to carry out the delivery of contractual goods on payment of price, but the latter refused to do so. D. W. 4 Champalal has no doubt denied the above facts, but we see no reason to disbelieve the above version of the plaintiffs. In this connection, we may also refer to telegrams Exs. 3, 27 and 29. The first two telegrams were sent on 17-2-1947, one by the plaintiffs and the other by the Punjab National Bank on behalf of the plaintiffs. In both these telegrams, a request was made to the defendants to deliver the contractual goods to the plaintiffs. When no reply was received, the plaintiffs sent another telegram Ex. 29 dated 18-2-1947 in which they made it clear that they were now not responsible for taking the delivery of the goods. On receipt of this telegram, the defendants sent a telegram Ex.30 on 18-2-1947 throwing the responsibility for breach of contract on the plaintiffs on the ground that the plaintiffs did not apply for delivery of the goods on the due date, namely, Mah Sudi Poonam. This sort of reply leaves no room for doubt that the defendants were not ready and willing to give delivery of the goods.
19. On behalf of the defendants, much stress has been laid on their letter Ex. A/12 dated 7-2-1947 (Phagun Badi 2, Smt. 2003) sent by post to the plaintiffs. The contents of the letter show that the defendants there in offered the contractual goods to the plaintiffs even though according to them the plaintiffs had been guilty of the breach of contract. The plaintiffs denied having received such a letter. In view of the telegram Ex. 30 sent by the defendants and other circumstances of the case, we have no hesitation to hold that no such letter was despatched by the defendants. If the defendants had been willing to deliver the goods on 7-2-1947, they would not have omitted to mention this fact in their telegram Ex. 30. On the contrary, they asserted in Ex.30 that their responsibility to deliver the goods ceased on Mah Sudi Poonam That shows that the letter Ex. A/12 was never sent to the plaintiffs.
20. We, therefore, hold that though the plaintiffs were ready and willing to take delivery of the contractual goods, the defendants were not prepared to do so.
Issue No. 6
21. The lower court has found that although Tikamchand, who was the partner of the defendants' firm, by his telegram dated 15-2-1947 stopped the delivery of the goods, but it had no concern with the transactions relating to the plaintiffs. We have already arrived at the conclusion that the defendants did not deliver the goods and they were guilty of the breach of the contract. In face of this finding, it is not necessary to deal with the question whether or not Tikamchand by his telegram dated 15-2-1947 stopped the delivery of the goods.
Issue No. 7
22. This issue relates to the rate of the contractual goods prevailing on Phagun Badi 5, Smt. 2003. It may be recalled here that the contractual gunny bags were of Birat Sajanwa Mills. The lower court has come to the conclusion that the rate of the contractual goods on Badi 5 was Rs. 104/- or 105/- per hundred bags. This finding has been challanged before us by the defendants. P. W. 4 Gulabchand has stated that on Phagun Badi 5 the rate of the gunny bags of Birat Sajanwa Mills was Rs. 93/- per hundred bags, P.W. 2 Jamnalal has quoted the rate at Rs. 95/-, P. W. 10 Ramswaroop at Rs. 102/-103/-, 104/- and 105/-, P. W. 13 Hanuman Dass at Rs. 102/- and 103/- and P. W. 15 Mangalram and P. W. 21 Ramdeo at Rs. 104/-. There is no rebuttal on this point on behalf of the defendants That shows that on Phagun Badi 5 the rate of gunny bags of Birat Sajanwa Mills fluctuated between Rs. 93/-and 105/-; we hold accordingly.
Issue No. 13
23. The lower court decided this issue partly in favour of the plaintiffs and partly in favour of the defendants. It passed a decree for Rs. 12, 000/10/-in favour of the defendants on the basis that the plaintiffs were guilty of breach of the contract and that on the date of the breach, which was taken to be 18-2-1947, the rate of the contractual goods was Rs. 78/-. We have, however, arrived at a different conclusion According to us, the responsibility for the breach of the contract lay on the defendants as they did not deliver the contractual goods upto the due date, namely. Phagun Badi 5.' In the circumstances, the defendants are not entitled to claim damages We are further of the opinion that the rate of Rs. 78/-found to be prevailing on 18-2-1947 by the lower court was the rate of the gunny bags not of the Birat Sajanwa Mills, but of other Mills and that too of Phagun Badi Poonam delivery and not of Mah Sudi Poonam delivery. This would be clear from the statement of P.W. 13 Hanumandas who has clearly desposed that on 18-2-1947 (Phagun Badi 13), he transacted business of gunny bags of 'any mill., that is, mills other than Birat Sajanwa Mills' at the rate of Rs, 78/4/, and Rs. 78/6/-. The lower court in this connection has placed reliance on the testimony of P.W. 16 Surajmal, P. W. 21 Ramdeo and P. W. 23 Jankiial. It is true that P. W. 16 Surajmal has said specifically that on 19-2-1947 the rate of the gunny bags of the Birat Sajanwa Mills was Rs. 77/- but that statement is not correct and is probably based on some misapprehension. P.W. 23 Jankilal and P. W. 21 Ramdeo gave the rate at Rs. 78/- of the gunny bags of other Mills and not those of the Birat Sajanwa Mills. It further appears from the statements of P. W. i Gulabchand. P. W. 7 Govindram and P.W. 13 Hanumandass that during the relevant period the rate of the gunny bags of the Birat Sajanwa Mills always remained higher than that of the other Mills by Rs. 10/- to Rs. 12/- per hundred bags. Calculating the rate on the basis, the rate of the gunny bags of the Birat Sajanwa Mills on 18-2-1947 would be near about Rs. 88/- or 90/-, that is higher than the contractual rate and the defendants even on that basis are not entitled to any decree for damages. The decree passed by the lower court in favour of the defendants cannot therefore be sustained and deserves to be set aside.
Issue No. 8
24. On the findings arrived at by us, the plaintiffs are entitled to recover damages from the defendants as the latter committed the breach of the contract by not delivering the goods between Phagun Badi 1 and Phagun Badi 5. As the contract could be performed upto Phagun Badi 5, the plaintiffs are entitled to damages atleast at the lowest rate of Rs. 93/- per hundred bags prevailing on Poonam Badi 5. Calculating at the rate, the plaintiffs become entitled to a decree for Rs. 38,559/6/- against the defendants.
25. In the result, we allow both the appeals, set aside the two decrees passed by the lower court and pass a decree in favour of the plaintiffs in suit No. 45 of 1952 for a sum of Rs. 38,559/6/- with proportionate costs in both the courts. We dismiss suit No. 51 of 1952 filed by the defendants with costs in both the courts.