1. This appeal is by the defendant No. 2 and it is against a decree passed in favour of the plaintiff respondent No. 1 in a suit for damages. The case of the plaintiff is as follows :
2. Calcot Ltd. of California in the United States of America sold 25,853 Lbs. of American Raw upland cotton to the plaintiff and shipped them in 36 bales at Port Okland and 14 bales at Port Los Angeles all marked and numbered FOOCI/ CALCOT on board vessel s. s. Vishva Siddhi belonging to the defendant No. 1. The defendant No. 1 in consideration of freight agreed to carry by the said vessel those 50 bales of cotton and deliver them to the plaintiff at the Port of Calcutta. In evidence of the said agreement the first defendant issued two bills of lading, namely, No. OAK/CAL-5 and No. LA/ CALCUTTA-5 dated 24th Feb. 1970, and 28th Feb. 1970, respectively. The plaintiff is the owner of the said consignment. The plaintiff was also the endorsee in respect of the said bills of lading. The vessel s. s. Vishva Siddhi arrived at the Port of Calcutta on the 24th April, 1970, and discharged its cargo at K. P. Dock. After discharge the bales of cotton were taken possession of by the defendant No. 2 and were kept in their custody and control for fumigation. After fumigation the defendant No. 2 delivered to the plaintiff 40 bales of cotton on 13th May, 1970, but failed to deliver the balance of 10 bales of cotton. The said 10 bales of cotton were not accounted for and as a result the plaintiff suffered a loss to the extent of Rs. 15000/-. The plaintiff repeatedly asked the defendant to pay the said sum but to no effect. The suit was therefore filed for a decree for Rs. 15000/- against either of the defendants which may be found liable by the court for the said amount, alternatively, for an equity into the damages sufferred by the plaintiff and a decree for such amount. Other reliefs were also prayed for but we are not concerned with the same in the present appeal.
3. The suit was contested by the defendants Nos. 1 and 2 by filing separate written statements. The defendant No. 1 alleged that it shipped and discharged 50 bales of cotton and those goods were then placed in the custody of the defendant No. 2. The defendant No. 1 pleaded that the plaintiff has no cause of action against them. The defence of the defendant No. 2 is that they received 50 bales of cotton from the ship s. s. Vishva Siddhi and that thereafter all the bales of cotton were sent to the fumigation chamber on 27th April, 1970. Those were taken out from the fumigation chamber between 10th May, 1970, and 12th May, 1970, and thereafter those goods were kept in the shed of 2 G. R. J. It is alleged by the defendant No. 2 that the suit is barred under Section 113(2) of the Calcutta Port Act, inasmuch as the plaintiff failed and neglected to take delivery of the goods from the defendant within the statutory period under the said section. The defence further is that the disputed 10 bales of cotton were traced out on 24th July, 1970 and the plaintiff was duly informed about it and was asked to take delivery of the same but the plaintiff did not take delivery of the said goods and as such the plaintiff has no cause of action against the defendant No. 2.
4. The trial court found that the defendant No. 1 duly discharged their duties and therefore the plaintiff has no cause of action against the defendant No. 1. This finding of the trial court was not challenged before us. We, therefore, affirm the said finding of the trial court. The trial court upon the evidence adduced in the case found that the disputed 10 bales of cotton could not be found on 21st May, 1970. The trial court further found that the defendant No. 2 sent a missing report to the police regarding those 10 bales of cotton. With regard to the case of the defendant No. 2 that the disputed 10 bales of cotton were traced out on 24th, July, 1970, and the plaintiff was asked to take delivery of the same. The trial court found that the consignment which was shipped from the United States of America were marked Fooci/Calcot, but the 10 bales of cotton which the defendant No. 2 asked the plaintiff to take delivery of did not bear the said mark. It could not therefore be said that those 10 bales of cotton and the missing 10 bales of cotton were identical things. In the circumstances, the trial court found that the plaintiff was not under any obligation to take delivery of the 10 bales of cotton which were offered by the defendant No. 2. The trial court, therefore, took the view that it had not been proved that the goods belonging to the plaintiff had been subsequently found out by the defendant No. 2. The trial court further found that there was no evidence that the defendant No. 2 took care of the goods as they should have taken in respect of their own goods. In this view of the matter the trial court held that the plaintiff was entitled to get damages from the defendant No. 2,
5. On the question of damages however the trial court proceeded solely upon the oral evidence of P. W. 1 Somnath Bensal who was the manager of the plaintiff firm. In his evidence he stated that the price of 10 bales of Cotton is Rs. 15000/-. The trial court proceeded on the basis that since there was no evidence to the contrary, the suit should be decreed for Rs. 15000/- as claimed by the plaintiff. Under section 73 of the Indian Evidence Act, when a contract has been broken, the party who suffers by such breach is entitled to from the party who has broken the contract, compensation of any loss or damages caused to him thereby. In dealing with the question of damages for breach of contract the Supreme Court has pointed out in Trojan and Co. v. Nagappa Chettiar, : 4SCR789 , it is clear that in the absence of any special circumstance the measure of damages cannot be the amount of the loss ultimately sustained by the representee, it can only be the difference of the price which he paid and the price which he would have received if he had resold them in the market forthwith after the purchase provided of course that there was a fair market then. In Murlidhar Chirinjilal v. Harish Chandra Dwarkadas, : 1SCR653 , the Supreme Court relying on the decision in British Westing House , Electric and Manufacturing Co. v. Underground Electric Rail Co. of London, 1912 AC 673, pointed out that two principles on which damages in such case are calculated are well settled. The first is 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 performed; but this principle is qualified by a second which imposes on the 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 damages which is due to his neglect to take such steps. In the present case apart from the bare testimony of P. W. 1 that the price of the missing 10 bales of cotton is Rs. 15000/-, the plaintiff has not produced before the court any evidence to substantiate his claim for damages. The purchase was made from a foreign seller. The plaintiff must have got his accounts to show what is the price which he paid for the goods. Payment was made through the Bank as usual in such cases. Those papers could have been called for and produced before the court. In the absence of those materials it cannot be said that the plaintiff has been able to substantiate his case that he has suffered damages to the extent of Rs. 15000/-. In our view, the trial court was not right in granting a decree to the plaintiff for Rs. 15000/- upon the material on record.
6. We, therefore, set aside the judgment and decree of the trial court and remit the case back to that court for consideration of the quantum of damages after giving the parties opportunity of adducing further evidence on that point. The finding of the trial court that the plaintiff has no cause of action against the defendant No. 1 is affirmed and it will no longer be open to the parties to agitate this question. The other findings of the trial court namely, that the 10 bales of cotton which were subsequently traced out on the 24th July, 1970, were not identical with the goods which were shipped for delivery to the plaintiff, and that the defendant No. 2 did not take care of the consignment as they were expected to take, are affirmed and it will no longer be open to the parties to agitate those points. There will be no costs in this appeal. Further costs will be in the discretion of the trial court. This appeal is accordingly allowed to the extent and in the manner indicated above.
7. Let the records be sent down immediately.
8. I agree.