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(Bolisetti) Venkatanarayana and anr. Vs. (Vakkalayada) Lakshmi Punnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtChennai
Decided On
Reported inAIR1928Mad1232
Appellant(Bolisetti) Venkatanarayana and anr.
Respondent(Vakkalayada) Lakshmi Punnayya and ors.
Cases Referred and Brandit & Co. v. Moris
Excerpt:
.....of the paddy required under either of these contracts and that the plaintiffs are, therefore, entitled to some damages. 5. the plaintiffs have put in a memorandum of objections in regard to some bags out of the number to be delivered by the defendants which they authorized the defendants to sell to a 'poor fund' at a lower price. in respect of those 130 bags the learned subordinate judge has said that the defendants are entitled to the difference between the contract price at which they were to be delivered to the plaintiffs and the market price at the time when they were delivered to the poor fund authorities. the plaintiffs as an act of charity at the suggestion of the tahsildar agreed that those bags should be delivered, not to them, but to the poor fund authorities at a slightly..........learned subordinate judge has said that the defendants are entitled to the difference between the contract price at which they were to be delivered to the plaintiffs and the market price at the time when they were delivered to the poor fund authorities. that i think is an obvious mistake. the defendants were bound to deliver those bags to the plaintiffs at the contract price. the plaintiffs as an act of charity at the suggestion of the tahsildar agreed that those bags should be delivered, not to them, but to the poor fund authorities at a slightly lower price, which the defendants received. it is obvious that what the defendants are entitled to on this account is the difference between the price which they received from the poor fund for those 130 bags and the price which they were.....
Judgment:

Reilly, J.

1. This suit deals with two-contracts for the delivery of paddy of various kinds by the defendants to the plaintiffs. The contracts are represented by Ex. C, dated 21st January 1919, and Ex. B, dated 2nd June 1919. At this stage of the litigation it is not disputed that the defendants failed to complete the delivery of the paddy required under either of these contracts and that the plaintiffs are, therefore, entitled to some damages. But it has first been contended by Mr. Venkatarama Aiyar for the defendants that the damages must be limited in the special circumstances of this ease to four annas a bag. It appears that at the dates of these contracts and at all material dates food-control by the Government was in force in this Presidency; and it also appears from Ex 6 series that the plaintiffs, when obtaining a license for the transport of the paddy covered by these contracts from Repalli, where it was to be delivered, to Guntur, where they then intended to mill it, gave an undertaking to the Government officers concerned that they would not sell it at a price above what would bring them a profit of four annas a bag. It has not been suggested for the plaintiffs before me that they had any right to disregard that undertaking, and it is, therefore, contended for the defendants that in respect of the paddy concerned in these contracts instead of looking to the market-price for the purpose of fixing the damages the lower Courts should have-limited the damages to four annas a bag. The answer given by Mr Somayya for the plaintiffs to that contention is that, though the plaintiffs undertook not to-sell at a price higher than that which would give them a profit of four annas a bag if they transported the paddy from Repalli to Guntur, there was nothing to prevent them from giving up the idea of transporting the bags to Guntur and selling them at Repalli; and, so far as the evidence goes, that appears to be correct. Even if the whole number of bags covered by these contracts had been delivered by the defendants at Repalli, the plaintiffs were under no obligation to transport them to Guntur, and, therefore, they could have sold them at Repalli at the market price. That being so, I think it is clear that the damages must be calculated in this case in the ordinary way on the market-price at the place of delivery i.e. at Repalli.

2. Mr. Venkatarama Aiyar's next contention is that the lower Courts have gone wrong in fixing 22nd November 19l9 as the date in respect of which the damages should be calculated. The learned Subordinate Judge has stated in his judgment that the time for performance of these contracts and the connected con-tract represented by Ex. A was one week from the dates of the contracts, and Mr. Venkatarama Iyer has suggested that that statement is not incorrect. But when we look at the contracts, we find that no time is fixed except in Ex. A. Ex. A was made a considerable time after Ex. C and a few days before Ex. B. But apart from the fact that one week is fixed as the time for performance in Ex. A there is no evidence that the time for performance in respect of the other two contracts was to be a week or any particular time and I cannot see any justification for a finding that the time for the performance of the two contracts with which we are now concerned was a week. That being so, it is clear that the defendants had to perform their part within a reasonable time. It will be convenient for the moment to deal with the two contracts separately. Ex. B was executed on 2nd June 1919. The date which the plaintiffs give as the date in respect of which they calculate their damages is 22nd November 1919. I do not think it can be seriously contended that, unless there are some special circumstances, the period from 2nd June to 22nd November 1919 can be taken as a reasonable time for the performance of that contract. In ordinary circumstances a reasonable time for the performance of such a contract would have expired long before November. Mr. Venkatarama Aiyar, relying upon Muthaya Maniagaran v. Lekku Reddiar [1912] 37 Mad. 412, con-tends that the plaintiffs had no right to extend of their own accord and for their own purposes the time for performance of the contract to so late a date as 22nd November and so make the defendants liable for a higher rate of damages. I think it is quite clear that the plaintiffs could have no such right. But it does not appear to me that they tried to do anything of that sort. This is not a case of the plaintiffs lying by for a long time and then suddenly saying on a date when the prices had risen that they would treat the contract as broken. It appears that the defendants went on making deliveries under the contract, Ex. B, in August, September, October and lastly on 21st November 1919, and those deliveries the plaintiffs accepted towards the contract. At one stage of his argument Mr. Venkatarama Aiyar contended that those could not be treated as deliveries towards this contract and pointed out that the defendants on the contrary maintained that they had on 16th June 1919 by Ex. 12 (c) declared that they would no longer perform the contract. That letter, Ex. 12 (c), was found by the District Munsif to be a fabrication, and the learned Subordinate Judge has found on the first point which he discusses in his judgment that those contracts were not cancelled by the defendants. That being so, I think we must take it that the deliveries made by the defendants after June were towards this contract.

3. It is not suggested that there was any subsequent contract between the parties, and, if the deliveries were not towards the performance of this contract, then there was no agreement, so far as we can see, between the parties about the price or any other conditions of the transaction. If we take it, as I think we must take it, that the defendants went on making deliveries towards this contract and the plaintiffs went on accepting them up to 21st November 1919, what is the proper inference from that in the circumstances of the case? It might mean that there had been some definite agreement between the parties to extend the time for delivery; but that has not been suggested on either side. It might mean that the defendants, although they were in default, chose to treat the contract as subsisting and went on making deliveries as in Ashmore v. Cox [1889] 1 Q.B 436, Or, it might mean that the plaintiffs at the request, express or implied, of the defendants were willing to wait for delivery and to accept delivery after time, though long delayed. The circumstances then would be similar to those in Ogle v. Earl Vane [1866] 2 Q.B. 275. I think it is quite possible and reasonable to draw either of the last two inferences mentioned from the facts of this case, and either is sufficient for the plaintiff's purpose. Mr. Somayya for the plaintiffs urges that the proper inference is that the plaintiffs were willing to wait at the implied request of the defendants until 21st November and up to that date continued to take delivery. If that is so, then there would be nothing unjustifiable in the plaintiffs, after waiting so long saying on 22nd November that they would wait no longer and that they put an end to the contract on that date; and that was what they did by Ex. D. If they did that, then the date for the calculation of damages would be the date fixed by the District Munsif and the Subordinate Judge namely 22nd November 1919: of. Ogle v. Earl Vane [1866] 2 Q.B. 275 and Brandit & Co. v. Moris & Co. [1917] 2 K.B. 784. I see no sufficient reason, therefore, to interfere with the decision of the learned Subordinate Judge in respect of this contract so far as it turns on the date for the calculation of damages. The same principles must be applied to the contract represented by Ex. C. That con-tract was made on 21st January 1919; but the defendants went on making deliveries towards it until 5th November 1919. The plaintiffs were entitled to put an end to that contract, as they did on 22nd November 1919 and to claim damages calculated as on that date.

4. It was urged at one stage that a mistake had been made in taking the market price at Guntur for the calculation of damages instead of the market price at Repalli, which was admittedly the place of delivery. But, when we examine the evidence of P.W. 1, and read it with Exs. D and 4, it is clear that what is claimed in the plaint is damages calculated on the market-price at Repalli, i.e., at the place for delivery, which would be correct. That disposes of the appeal.

5. The plaintiffs have put in a memorandum of objections in regard to some bags out of the number to be delivered by the defendants which they authorized the defendants to sell to a ' poor fund' at a lower price. The Subordinate Judge finds that the number of those bags was 130 instead of 125 as stated by the plaintiffs. That is a finding of fact, with which I cannot interfere. In respect of those 130 bags the learned Subordinate Judge has said that the defendants are entitled to the difference between the contract price at which they were to be delivered to the plaintiffs and the market price at the time when they were delivered to the poor fund authorities. That I think is an obvious mistake. The defendants were bound to deliver those bags to the plaintiffs at the contract price. The plaintiffs as an act of charity at the suggestion of the tahsildar agreed that those bags should be delivered, not to them, but to the poor fund authorities at a slightly lower price, which the defendants received. It is obvious that what the defendants are entitled to on this account is the difference between the price which they received from the poor fund for those 130 bags and the price which they were entitled to receive under the contract from the plaintiffs. That appears to be two annas a bag, as allowed by the District Munsif.

6. The appeal is dismissed with costs and the memorandum of objections allowed with costs.


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