SITA RAM Vs. KUNJ LAL

JUDGEMENT

(1.) This is an appeal by a defendant arising out of a suit for the recovery of a sum of Rs. 11,773/15/6 in respect of damages for breach of a contract which was entered into in respect of supply of jaggery powder (a form of gur).

(2.) On the 14th August, 1947, the defendant was alleged to have contracted to purchase four wagons of jaggery powder roughly weighing about 2,000 maunds through the plaintiff's agency at two different rates. The first two wagons were contracted to be supplied at Rs. 25/8/- per maund, while the other two wagons at Rs. 25/12/- per maund. The price agreed to be paid was, what was in the market known as, Bilti-cut rate, that is to say, it was inclusive of charges incurrable to have the goods loaded in wagons, i.e., the rates were F.O.R. rates. According to the plaintiff, it was agreed that commission, would be paid at the rate of Rs. 1/9/- per cent that expenses, etc. would be at one anna per cent., and that brokerage would be Rs. 10/- a wagon. In pursuance of the aforementioned contract it was alleged by the plaintiff and agreed to on behalf of the defendant, that the defendant had deposited a sum of Rs. 2,000/- on the 28th August, 1947, with the plaintiff.

(3.) On the 23rd August, 1947, one wagon was despatched to the defendant in terms of the aforementioned contract and the second wagon was despatched on the 12th September, 1947. After the respective wagons were despatched, Railway Receipts were sent and the recovery or the amounts was made through Hundis. It appears that a sum of Rs. 11,983/2/- was received on the 29th August, 1947, and another sum of Rs. 11,981/4/- was received on the 15th August, 1947. After the two wagons mentioned above had been despatched the position in regard to the availability of wagons became precarious, and therefore despatch of jaggery, sugar and such other commodities could only be made on obtaining a requisite permit for despatch of such goods. There was admittedly no requisite permit in favour of either of the parties for the despatch of jaggery in pursuance of the aforementioned contract, so that right from September till December 1947 the remaining two wagons of jaggery could not be despatched.