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Chandra Mohan Karar and anr. Vs. Srimati Rohini Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.366
AppellantChandra Mohan Karar and anr.
RespondentSrimati Rohini Dasi
Excerpt:
contract act (ix of 1872), section 74, exception, applicability of - probate and administration act (v of 1881), section 78--administration bend--breach of condition--compensation recoverable. - .....an appeal from the judgment of the additional subordinate judge of hooghly, and the effect of the learned judge's judgment was that he allowed the appeal, set aside the derision of the first court and decreed the suit, with costs in both courts. the suit was brought by the plaintiff on a bond, which had been executed by the two defendants under these circumstances. it appears that in april 1904 the district delegate of howrah granted letters of administration to the estate of the plaintiff's father to defendant no. 1, and the two defendants executed an administration bond for rs. 527 in favour of the district delegate of howrah. there was an application, as appears from the learned judge a judgment, by the plaintiff, who is the son of the deceased man, for revocation of the letters of.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal from the judgment of the Additional Subordinate Judge of Hooghly, and the effect of the learned Judge's judgment was that he allowed the appeal, set aside the derision of the First Court and decreed the suit, with costs in both Courts. The suit was brought by the plaintiff on a bond, which had been executed by the two defendants under these circumstances. It appears that in April 1904 the District Delegate of Howrah granted Letters of Administration to the estate of the plaintiff's father to defendant No. 1, and the two defendants executed an administration bond for Rs. 527 in favour of the District Delegate of Howrah. There was an application, as appears from the learned Judge a judgment, by the plaintiff, who is the son of the deceased man, for revocation of the Letters of Administration. That application was rejected. Then it was alleged that the defendant No. 1 had not performed the conditions of the bond, that is to say, he had not filed the inventory of the estate and the accounts relating to the estate within time. It appears that the period for filing the inventory and the accounts was extended for some considerable time; and, in April 1916 this bond was assigned by the District Judge of Hooghly to the plaintiff, on condition that any money that might be realised by a suit on the bond should be deposited in Court. That is how the plaintiff comes to sue upon this bond.

2. The learned Munsif held that the plaintiff could not recover under the circumstances, but he decided that if the plaintiff had been able to recover anything, then the amount which he could hare recovered would be the whole amount mentioned in the bond, namely, Rs. 527. He based his decision on a consideration of Section 71 of the Indian Contract Act and the Exception to that section.

3. The learned Subordinate Judge allowed the appeal, overruling the decision of the learned Munsif that the suit was not maintainable, and held that it was maintainable, But the learned Subordinate Judge did not deal with the question of the amount which was recoverable by the plaintiff in the suit. He decreed the suit for the full amount of Rs. 527.

4. The learned Vakil for the appellant argued in this Court that inasmuch as the first defendant had in fact filed the inventory and the accounts sometime in April 1916, the plaintiff should not be allowed to recover more than nominal damages in this suit. On the other hand, the learned Vakil for the plaintiff has argued that there is no finding that the inventory has even now been filed although there is a finding that the accounts were filed in 1916, and that having regard to the facts of the case and the great delay which occurred, the plaintiff should be held to be entitled to recover the full amount of the bond.

5. With regard to the question of fact as to whether the inventory has up to now been filed, the position seems to be as follows: It is not clear from the record which has been referred to by both the learned Vakils, whether the inventory has in fact been filed or not. But I refer to that part of the judgment of the Munsif at page 12 where he Says: 'It is argued that defendant filed an inventory and account on demand. Time was extended by the District Judge....The account, Exhibit A, was filed in the Judge's Court on 1st April 1916.' it seems to me that if the inventory had not been filed, the Munsif must have said so, and I cannot help coming to the conclusion that the learned Munsif was dealing with the case upon the basis that both the inventory and the accounts had been filed: it may be that Exhibit A contained both the inventory and accounts. However, wo must deal with this case as if the inventory and the accounts had been filed. But they had been filed out of time, and consequently there was a breach of the condition of the bond.

6. Then arises the question in view of that breach, is the plaintiff entitled to recover the Rs. 527, or is the plaintiff entitled to recover only nominal damages. The learned Vakil for the respondent has quite frankly admitted that he cannot support the Munsif's finding that this was such a bond as would come within the meaning of the Exception to Section 74. If I may say so, I entirely agree with him, because I think the point was unarguable and, therefore, we have to apply the other provisions of Section 74, which both the learned Vakils agree apply to this case. That section provides: 'When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named, or, as the case may be, the penalty stipulated for.' It is, therefore, provided that where a specified amount is mentioned in the contract as being payable upon a breach of the contract, then the Court is to award reasonable compensation not exceeding the amount so named, whether or not actual damage or loss is proved to have been caused thereby. I confess that I find myself placed in considerable difficulty in making the assessment, because one has always understood that compensation is awarded to a person in respect of some loss or damage which that person has sustained. But this section directs the Court to award reasonable compensation to the plaintiff even though he has suffered no damage or sustained no loss. However, the Court has to make the best it can under the circumstances of the case. I am of opinion that it would not be right in the circumstances of, the case to allow the plaintiff to recover the full amount of Rs. 527. 1 think that the justice of the case will be met if we decide that judgment should be entered for the plaintiff for a sum of rupees fifty, with a direction that the defendant must pay the costs of the proceedings before the learned Munsif and the lower Appellate Court. The appeal will be allowed and the decree of the lower Appellate Court varied in accordance with our judgment. Each party will bear its own costs in this Court.

Richardson, J.

7. I agree.


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