AMARNATH NIKKURAM Vs. MOHAN SINGH AND SURJAN SINGH

JUDGEMENT

(1.) THIS second appeal of the Defendant arises from a suit filed by the Respondent against him for the refund of Rs. 2161/9/ - which he had paid to the Defendant as part of the purchase price of five wagons of coal to be delivered (SIC) him at the Railway Station Shivpuri from (SIC) 1947 to 15.5.1947. The coal was not delivered and therefore the Plaintiff filed this suit, (SIC) trial Court came to the conclusion that both the parties were responsible for the breach of the contract and therefore decreed the suit. The lower appellate Court took the view that the Defendant (SIC) was responsible for the breach of the contract and must return the money. There is, therefore, (SIC) finding of fact against the Defendant.

(2.) MR . Shiv Dayal, learned Counsel for the Appellant, draws my attention to a letter (Ex. D.1) written by the Plaintiff to the Defendant on 13.5.1947 (i.e., two days before the last date fixed for the fulfilment of the contract) by which the Plaintiff asked the Defendant not to give his coal (SIC) anybody till he received a message or a letter (SIC) him Mr. Shiv Dayal contends that this (SIC) shows that for the breach of (SIC) contract the Plaintiff alone was responsible. (SIC) have been true if time was of the essence of the contract. According to Section 55 contract Act (SIC) a party to a contract promises to do a (SIC) at of before that time the contract become voidable at the option of the promise "if (SIC) intention of the parties was that time should (SIC) of the essence of the contract." The question (SIC) time is or is not the essence of the contract has to be decided on the facts of each case.