M.M. Ismail, J.
1. The plaintiff in O.S. No. 72 of 1969 on the file of the Court of the Subordinate Judge of Ramanathapuram at Madurai is the appellant. It is a registered partnership firm carrying on business in fire works and litho works at Sivakasi under the name and style of 'the Standard Litho Works'. The first respondent herein is a partnership-firm carrying on business in fountain pens and ball-point pens having its head office at Calcutta and branch office at Madras, the second and the third respondents being its partners. The appellant herein instituted the suit for recovery of a sum of Rs. 11, 594.51 with interest. Admittedly the first respondent herein placed orders with the appellant for delivery of 75,000 calendars. These orders are dated 16th December, 1968 and they have been marked as Exhibits A-6, A-7 and A-8, Exhibit A-6 being Order No. 10151 for 15,000 calendars, Exhibit A-7 being Order No 10152 for 30,000 calendars and Exhibit A-8 being Order No. 10154 for another 30 000 calendars. They all originated from a telegram sent by the first respondent on 14th December, 1968, marked as Exhibit A-10. That telegram stated 'supply additional 15,000 on 28th instant. More thirty thousand delivery wanted, 15th January and thirty thousand January last week.' The word 'more' has to be understood in the context of the first respondent having earlier placed orders with the appellant for calendars and having received them. It was the understanding of the parties that this telegram received from Calcutta with regard to the supply of calendars has to be confirmed by the Madras office of the first respondent, because the calendars had to be supplied only to the Madras office. As a matter of fact, such a confirmation was actually sent only on 4th January, 1969 as evidenced by Exhibit A-9, 30 000 calendars were despatched on 29th January, 1969, another 30,000 calendars were despatched on 5th February, 1969 and 15,000 calendars were despatched on 10th February, 1969. The calendars despatched last, viz., 15,000 on 10th February, 1969, were taken delivery of and paid for by the first respondent, but the 60,000 calendars despatched, i.e., 30,000 on 29th January, 1969 and 30,000 on 5th February, 1969, were not taken delivery of by the first respondent and therefore, the appellant had to re-book the same and thereafter, the appellant Instituted the present suit for recovery of the amount mentioned therein, made up of Rs. 10,422-36 being the amount covered by the two bills dated 30th January, 1969 and 6th February, 1969 and a sum of Rs. 291.75 said to be the expenses incurred by the appellant for booking and re-booking and a sum of Rs. 867.30 being the demurrage alleged to have been suffered by the appellant herein.
2. Several defences were taken by the respondents herein and they are reflected in the following issues framed by the trial Court:
(1) Whether time is of the essence of the contract?
(2) Whether there has been breach of the terms of the contract by the plaintiff?
(3) To what relief is the plaintiff entitled? and the following additional issues framed,
(4) Whether this Court has no jurisdiction to try this suit?
(5) Whether the suit as framed is not maintainable?
(6) Whether the letter dated 8th January, 1969 will not bind the third defendant? and
(7) Whether any definite dates were fixed lor the supply of calendars and whether there was any delay in despatching the same?
3. The learned Subordinate Judge of Ramanathapuram at Madurai, by judgment and decree dated 5th March, 1971 came to the conclusion that time was not of the essence of the contract and 60,000 calendars were supplied by the appellant in accordance with the instructions given by the first respondent under Exhibit A-12 dated 8th January, 1969 and there has been no breach of contract on the part of the appellant, that there was no delay on the part of the appellant in despatching the goods, and therefore, answered all the material issues, except the relief, in favour of the appellant herein. As far as the relief portion is concerned, the learned Subordinate Judge held that the appellant had not filed the suit for recovery of any damages on the ground of breach of contract and the grievance of the appellant was that the respondents had failed to take delivery of the goods and therefore they were liable for the claim made by the appellant and such a claim can only be for damages on the ground of breach of eon-tract and therefore, the suit itself was not maintainable. With the result, the learned Subordinate Judge dismissed the suit. It is against the dismissal the plaintiff has filed the present appeal.
4. The appeal itself was filed on 24th July, 1971 and on 4th November, 971 the appellant also filed an application in C.M.P. No. 6727 of 1972 for amendment of the plaint to get over the defect pointed out by the learned Subordinate Judge.
5. As far as the dismissal of the suit is concerned, I am of opinion that even without an amendment to the plaint being necessary, the learned Subordinate Judge could have decreed the suit on the, findings arrived at by him. Only in paragraph 12 of his judgment the learned Subordinate Judge considers this question and states:
Additional Issue No. 5:
Though I have found all the aforesaid issues in favour of the plaintiff, I am afraid that I must hold on this issue that the suit as framed is not maintainable. As rightly urged on behalf of the defendants, the plaintiff has not filed this suit for recovery of any damages on the ground of breach of contract. The grievance of the plaintiff is that the defendants have failed to take delivery of the goods and therefore, they are liable for the claim made by him. Such a claim can only be for damages on the ground of breach of contract. My attention was drawn to Section 73 of the Contract Act for the aforesaid position. I read the plaint carefully to find out as to whether this suit can be construed as a suit for damages. Even if the word 'damages' does not find a place in the plaint, if the substance of the suit is one for damages, I thought that the plaint can be construed as one for damages. But the plaint expressly proceeds on the footing that the suit has been filed for the value of the goods as per bills. It is stated in paragraph 10 that the defendants are liable to pay the plaintiff the sum of Rs. 10,422-86 being the amount covered under the two bills. It is also mentioned in the plaint in paragraph 14 under the heading, 'particulars of amount claimed', that the plaintiff is entitled to the suit amount as per his accounts. The relevant ledger page 184 of the defendants (sic) has been marked as Exhibit A-21. In Exhibit A-21 debit entries for the amounts covered by the bills have been made. Admittedly, the plaintiff has re-booked the goods to Sivakasi and he has taken back the 60,000 calendars sent to the defendants. In fact the plaintiff has also claimed the re-booking charges and also the demurrage charges. But anyhow, on the basis that the goods have been supplied to the defendants and that the defendants have failed to pay the value of the goods, this suit has been filed for recovery of the value of the goods.
I am clearly of the opinion that the learned Subordinate Judge has erred in construing the plaint in this manner. As the learned Subordinate Judge himself has pointed out, the use of the word 'damages' in the plaint is not necessary provided all the material facts which will give rise to a claim for damages are stated in the plaint. The learned Subordinate Judge made one mistake when he stated that the plaint expressly proceeded on the footing that the suit has been filed for the value of the goods as per bills. Just as the word 'damages' is not present in the plaint, equally the plaint does not say that the suit has been instituted for recovery of the value of the goods or the price of the goods supplied. As a matter of fact, the very fact that the plaintiff-appellant added the cost of the booking and re-booking of the goods and also demurrage charges will clearly show that the appellant was not instituting the suit expressly for recovery of the price of the goods supplied. Consequently, the learned Judge erred in construing the plaint as one instituted for recovery of the value of the goods. On the other hand, even though the suit has not been described as one either for recovery of damages or for recovery of the value of the goods supplied, still the averments in, the plaint are sufficient to sustain a claim for damages, even though the appellant had to establish the actual damages sustained by it. As a matter of fact, in paragraph 8 of the written statement, the third defendant himself averred that he learnt that the appellant took re-delivery of the goods and disposed of the same and the appellant, therefore, did not incur any loss. The appellant incurring or not incurring any loss will be relevant only for determining the claim of the appellant to damages and not for recovery of the price of the goods. It is true, it was the third defendant who stated in the written statement more than once that the appellant was not entitled to claim the value of the calendars, but that would not determine the relief claimed by the appellant itself in the plaint. Therefore, even the plaint, as it stands, can be treated as being one I for damages and the learned Subordinate Judge could have disposed of the suit on that basis.
6. It is only as a matter of abundant, caution, the appellant has filed the pre sent application, C.M.P. No. 6727 of 1972, for amendment of the plaint, and the only amendment it seeks to make is the addition of the words, 'as damages' in paragraph 11 of the plaint dealing, with its right to recover the amounts from the first respondent herein and in paragraph 14 dealing with the relief portion. Barring the addition of these two words 'as damages' the amendment applied for does riot seek to add anything more to, or detract anything from, the plaint. The learned Counsel for the respondents vehemently opposed the application for amendment. Tarn unable to hold that there is any merit whatever in this objection. As a matter of fact, so long as all the necessary averments in the plaint are there, as they are in the present case, if the plaintiff wants merely the addition of the words 'as damages' in order to clarify the basis of its claim, it could not be contended that the amendment brings into existence now cause of action or sets forth new set of facts which will prejudice the respondents? herein. The decision of the Supreme Court in Leach and Co. Ltd and Anr. v. Jardine, Skinner and Co. : 1SCR438 , is directly in point. In that case the Supreme Court allowed an amendment of the plaint as one for damages for breach of contract and, on that basis, allowed the appeal and remanded the matter to the trial Court for fresh disposal. As a matter of fact, that decision of the Supreme Court if nearest to the facts of the present case. However, the learned Counsel for the respondents drew my attention to the decision of the Supreme Court in Shanti Kumar R. Chanji v. The Home Insurance Co. of New York (1975) 1 S.C.J. 187 (C.A. No. 199 of 1971, dated 24th July, 1974 of Supreme Court, judgment dated 24th July, 1974). In that ease, there were two amendment applications and the earlier application having been dismissed, the second application was filed and that too was dismissed. With reference to that dismissal the Supreme Court observed:
The High Court considered the second application for amendment to be a new claim based on the new set of facts which become barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is out-weighed by the special circumstances of the case. See Charan Das v. Amir Khan (1920) 47 I.A. 255 : 13 L.W. 49 : 57 Ind.Cas. 606 : 1921 39 M.L.J. 195 : A.I.R. 1921 P.C. 50. The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.
In my opinion, the said decision of the Supreme Court has no application to the facts of this case, because as I pointed out already, the amendment does not seek to introduce any new claim based on a new set of facts and it is only a clarification sought to be made on the very facts set out already in the plaint. Under these circumstances, the application for amendment, filed as a matter of abundant caution, is, allowed and the plaint will stand amended as prayed for.
7. Since the learned trial Judge has not considered the claim of the appellant as one for damages, the suit will have to go back to the learned Subordinate Judge for re-trial only on the question whether the appellant had established that it had sustained any loss so as to claim damage from the respondents herein for breach of contract, all the other issues having been already found in favour of the appellant herein.
8. The learned Counsel for the respondents sought to sustain the judgment of the trial Court on the ground that the appellant itself was guilty of the breach of the contract and it was not the first respondent that was guilty of the breach of the contract and therefore, even on the assumption that the suit is one for damages, it is liable to be dismissed. The basis of this contention is that the two consignments of 30,000 calendars each were not sent in time. I am of opinion that there is no force in this contention I have already drawn attention to Exhibit A-10 dated 14th December, 1968, the telegram sent from Calcutta placing orders for the 75,000 calendars, which also stated as to when the first 15,000 calendars should be sent and the second 30,000 calendars and the third 30,000 calendars should be sent. I have also referred to the fact that actually the orders were placed on 16th December, 1968. But, it was admitted that a confirmation from the Madras office, to which alone the calendars had to be sent, was necessary and that confirmation came into existence only on 4th January, 1969 as evidenced by Exhibit A-9. Therefore, if this confirmation is to be taken into account, it will follow that the time schedule mentioned in Exhibit A-10 dated 14th December, 1968 cannot have any effect because it contemplates the first consignment of 15,000 being sent on 28th December itself, and the confirmation having come later, Exhibit A-10 could not be complied with literally. Apart from this, after Exhibit A-9 there was a further communication, viz., Exhibit A-12 dated 8th January, I969 sent by the Madras office of the first respondent to the appellant herein. The said communication reads as follows:
The Standard Litho Works, P.B. No. 56, Sivakasi (S. India).
Ref: Our Order No. 10152 dated 16th December, 1968.
Our Order No. 10154 dated 16th December, 1968.
With reference to our above order, kindly despatch them with minimum 10 days gap in two separate lots viz, one consignment of despatch during the last week of this month, the other consignment to the despatched by first week of next month....
This communication actually contemplated 30,000 calendars being sent in the last week of January, 1969 and another 30,000 calendars being despatched in the first week of February, 1969, and that is exactly what the appellant had done, having despatched 30,000 calendars on 29th January, 1969 and another 30,000 calendars on 5th February, 1969. The argument of the learned Counsel for the respondent is that this communication, Exhibit A-12, cannot outweigh the original order, Exhibit A-10 dated 14th December, 1963, and these two consignments not being in accordance with Exhibit A-10, the appellant had not complied with the terms of the contract and consequently it committed breach of the contract. I am unable to accept this argument. I have already pointed out that in view of the confirmation from the Madras office itself having come only 4th January, 1969, the terms as per Exhibit A-10 could not be complied with literally. Apart from this, this Exhibit A-12 expressly refers to the two orders relating to 30,000 calendars each. I have already mentioned the fact that order No. 10152 dealt with 30,000 calendars and order No. 10154 dealt with the other 30,000 calendars. It is these two orders which are specifically referred to in Exhibit A-12 and consequently, the instructions contained in Exhibit A-12 related to these two consignments of 30,000 calendars each and the appellant had carried out those instructions in despatching the two consignments on 29th January, 1969 and 5th February 1969 and therefore, having regard to the express reference to the two orders in Exhibit A-12 the argument of the learned Counsel for the respondents that the contents of Exhibit A-12 are merely illustrative cannot be accepted. The irony of it is 15,000 calendars which were to be sent on the 28th of December, 1968 as per Exhibit A-10 were sent last on 10th February, 1969 and the same was accepted and paid for by the first respondent, while the two consignments in question despatched before 10th February, 1969 were not taken delivery of, and this conduct on the part of the first respondent itself would show that even the first respondent itself did not consider that the time schedule mentioned in Exhibit A-10 was inflexible and was of the essence of the contract. This U the only ground on which the dismissal of the suit by the trial Court, was sought to be sustained by the learned Counsel for the respondents, and that ground fails.
9. Under these circumstances, the appeal is allowed and the judgment and decree of the learned Subordinate Judge of Ramanathapuram at Madurai dated 5th March, 1971, so far as it concerns with the dismissal of the suit will be set aside and the suit itself is remanded to the learned Subordinate Judge for fresh disposal, limited to finding out whether the appellant had suffered any loss as a result of the breach of contract committed by the first respondent in not taking delivery of the two consignments of 20,000 calendars each, and if so, what is the quantum of damages to which the appellant is entitled from the respondents herein. The appellant is entitled to the costs of this appeal from the respondents herein, in view of the attitude adopted by the respondents. The appellant will be entitled to the refund of the Court-fee paid on the memorandum of appeal.