TOSHNIWAL BROTHERS (P) LIMITED Vs. ESWARPRASAD, E

JUDGEMENT

(1.) This batch of second appeals may be dealt with together, since they involve similar and identical issues based on almost identical circumstances, except certain special and individual features present in one case. That apart, the appellants in all these appeals are one and the same. The relevant facts in each of the appeals may be considerably referred to appreciate the contention raised in all these appeals.

(2.) Second Appeal No. 1803 of 1982 : The appellant/plaintiff filed Original Suit No. 531 of 1972 against the respondent/defendant for recovery of Rs. 2,000 being the amount said to be due by way of damages for breach of contract, claimed to have been executed between the parties on September 18, 1969 for three years. Commencing from September 1, 1969 to serve under plaintiff's employment as Sales Engineer, with further interest and costs. The claim of the plantiff is that the defendant was employed as Sales Engineer, on September 1, 1969, that an agreement was executed on September 18, 1969 as per which the defendant should have served the plaintiff for at least three years, that the defendant committed breach of conditions of the agreement and left the service in April 1971 without the consent of the plaintiff and that therefore, the plaintiff is entitled to recover a sum of Rs. 2.000 as damages. The defendant claimed that it is the plaintiff, who made it impossible for the defendant to continue in the service of the plaintiff and that the clause providing for payment of damages is more in the nature of a condition in terrorem and not enforceable. The learned trial Judge framed four issues and purporting to apply the principles contained in Section 74 of the Indian Contract Act, decreed the suit as prayed for. The trial Court came to the conclusion that the defendant committed breach of the contract. The defendant filed an appeal in A.S. No. 41 of 1981 and the lower appellate Court applying decisions in Union of India v. Rampur Distillery and Chemicals Company Ltd. ; Ramaswamy Gounder v. Kupuswamy Gounder 1978 2 MLJ 313 etc. reverted the judgment and decree of the trial Court holding that in the absence of proof of actual damages suffered, there is no scope for granting a decree in favour of the plaintiff. Hence, the above second appeal.

(3.) Second Appeal No. 178 of 1983 : The appellant/plaintiff filed Original Suit No. 821 of 1976 for recovering a sum of Rs. 3,000 said to be liquidated damages due to the plaintiff under the agreement, dated November 17, 1973, is whereunder the defendant, who was appointed as Sales Engineer and agreed to serve the plaintiff for 3 1/2 years and in default to pay Rs. 3,000 as liquidated damages, committed a breach by resigning from the employment under a letter, dated January 5, 1975. The defendant contested the claim on the ground that he was placed under probation for a period of six months to be confined thereafter or to extend the probation and since neither of these has been done by the plaintiff, the defendant cannot be attributed with breach of the contract and if at all, it is the plaintiff, who has committed breach. It was also contended that the letter of confirmation was antidated and that the plaintiff is not entitled to any damages whatsoever. The trial Court by its judgment and decree, dated October 13, 1979, held that the plaintiff failed to prove that it has suffered actual damages, though there was a breach on the part of the defendant. On appeal before the learned First Appellate Judge in A.S. No. 166 of 1981 the judgment and decree of the trial Court came to be confirmed. Hence, the above second appeal.