N. SUNDARESWARAN Vs. SRI KRISHNA REFINERIES

JUDGEMENT

(1.) THE unsuccessful defendant in O. S. No. 239 of 1970 on the file of the Subordinate Judge of Erode is the appellant. The plaintiff filed a suit for recovery of a sum of Rs. 43,875/ - and costs which according to him was damages payable by the defendant consequent upon his nonperformance of a major portion of three agreed contracts he entered into according to him on 15 -11 -1969, 16 -12 -1969 and during the third week of January, 1970. The plaintiff's case is that the defendant is a manufacturer and dealer of empty tin containers at Quilon, and he being a businessman dealing in groundnut oil and refined oil, placed orders on three different prices for varied quantities and those contracts are evidenced in writing excepting the last of them and the defendant accepted such contracts but failed to perform the same in full and therefore he was entitled to claim such damages which flowed from the breach of contract committed by the defendant. The defendant's case is that it was no doubt true that the first two contracts were entered into no the dates specified by the plaintiff in the plaint, but in so far as the third contract is concerned, there was no written contract but only an oral contract to supply one wagon. His further claim is that from time to time the plaintiff injuncted him from normally performing the contract on the ground that he had sufficient stocks of tins or on the ground that the demand had come down and that, therefore, he could not fully perform the agreed contracts. He would refer to the correspondence which we shall presently consider and would add that in or about February -March, 1970 there was an increase in the excise duty payable on tins and as such increase has to be borne in law by the buyer, he demanded whether the plaintiff was inclined to agree to the despatch of the goods at prices which would include such excise duty also and the plaintiff categorically refusing to suffer any such additional responsibility the defendant could not, though he was anxious otherwise to, perform the contract in terms thereof. The defendant's case is that there was no failure to deliver the goods due to any fault of his and he would deny that the damages claimed were in accord with the usual measure of damages which could be claimed even if it is assumed that he has committed a breach of contract. On the above relevant pleadings the following issues were framed:

(2.) THE trial Judge found that the defendant committed breach of contract and that the plaintiff is bound to pay the Central Excise Duty on supplies made to him on and after 1 -3 -1970, and in the peculiar circumstances of the case and after having traced the recitals in the correspondence between the parties, the learned Judge thought that the defendant was bound to pay damages and he assessed the damages in the manner he did but having regard to the act that the plaintiff as buyer should also shoulder the responsibility of excise duty took this aspect into consideration and finally assessed the damages at Rs. 30,780/ -. The suit, was therefore, decreed for the said sum with subsequent interest and costs. It is against this the defendant has preferred this appeal.

(3.) THE second contract was made under Ex. B -10 and it is for the supply of 20 wagons of tins at the rate of Rupees 370/ - per 100 tins. The third contract is said to have been made during the third week of January, 1970. There is some controversy between the parties as to whether there was such a contract at all and even if there is one, whether it was for the supply of 5 wagons or one wagon. We may at once say that there cannot be any controversy on this for the very reason that the defendant in the witness box admits that during personal negotiations the defendant agreed to supply 5 wagons of tins at the rate of Rs. 425/ - per 100 tins.