ANANDRAM MANGTURAM Vs. BHOLARAM TANUMAL

JUDGEMENT

(1.) THIS is an appeal from the judgment of Mr. Justice Kania dated June 20, 1944. The action is by a purchaser of certain goods against the vendors, who are the appellants in this Court, for damages for breach of contract. The breach which is now admitted was the failure of the appellants to deliver thirty-six bales of cloth, the balance of forty-one bales, the subject-matter of the contract, before the expiry of the month of February, 1943.

(2.) THE only question in dispute is the date on which damages are to be assessed which becomes very material by virtue of the somewhat violent fluctuations in the market prices. Four different dates have been suggested, and the difference in the quantum of damages is substantial. THE first date is February 28, 1943, resulting in damages of approximately Rs. 7,000; the second date is May 5, 1943, resulting in damages of approximately Rs. 19,000; the third date is June 19, 1943, resulting in damages of approximately Rs. 14,000; and the last date is July 28, 1943, resulting in damages of approximately Rs. 1,400.

(3.) THEN comes the case in the Privy Council of Muhammad Habidullah v. Bird & Co. (1921) 24 Bom. L. R. 687 P. C. Lord Dunedin delivering the judgment of the Board says this (p. 690): Now apart from the terms of the Indian Contract Act, the law is as laid down in Tyers v. Rosedale and Ferryhill Iron Co. (1875) L. R. 10 Ex. 195 Baron Martin in that case said: The second question is one of law, and is a most important one-it arises over and over again every day in the ordinary transactions of mankind. It is this : There is a contract for the Sale of goods to be delivered, say, in January or upon a day of January. On the day before the delivery is to take place the vendor meets the vendee and says : 'it is not convenient for me to deliver the goods. . . upon the day named, and I will be obliged if you will agree that the goods shall be delivered at a later period,' and the vendee assents; or the vendee goes to the vendor, and says : 'it is not convenient for me to receive the goods in January, or upon the day named, and will you agree that the delivery shall be postponed', and the vendor assents; the latter is the present case, and the contention on the part of the defendants is that this puts an end to the contract, and that the defendants are not bound to deliver upon the later day. In my opinion, the contention is not well-founded. . . It is impossible to distinguish the case of the application. . . coming from the vendors and one coming from the vendee. That opinion was affirmed in the Exchequer Chamber. The effect of Section 55 of the Indian Contract Act above quoted is, where the party having the option elects not to avoid, to put agreement after the original date on the same footing as an agreement, as put by Baron, Martin, just before the original date. Be it observed that what is said is that s, 55 of the Indian Contract Act is to put an agreement after the original date on the same footing as the agreement mentioned in the quotation in Baron Martin's judgment. But it must be an agreement. Mere forbearance from suing or giving a formal notice is not enough.