B N KATARUKA AND SONS Vs. CHAULHAI NAYAK

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiff claimed damages for breach of contract from the defendants. It appears that on 19-8-1946, the plaintiff entered into a contract with, the defendants for the supply of Rs. 3000 gross of safety matches at the rate of Rs. 4/- per gross, the plaintiff also deposited a sum of Rs. 900/- in advance with the defendants. On 12-11-1946, the defendants wrote a letter to the plaintiff cancelling the order and also returned the sum of Rs. 900/- deposited by the plaintiff as advance. The amount was sent by the defendants to the plaintiff by a Bank draft. It is the admitted position that the plaintiff realised the money covered by the bank draft. On 18-11-1946, the plaintiff sent a letter to the defendants requesting that another wagon of safety matches may be supplied in January. 1947. The plaintiff sent a pleader's notice on 20-11-1946, claiming damages from the defendants for breach of contract dated 19-8-1946. The plaintiff thereafter brought the present suit against the defendants. The suit was contested by the defendants on the principal ground that though there was a breach of the first contract the plaintiff had dispensed wholly with the performance of that first contract and the plaintiff was, therefore, not entitled to claim any damages for the breach. The trial Court decreed the suit, but the decree was upset by the Additional District Judge of Dar-bhanga, who heard the appeal, on the ground that there has been a waiver on the part of the plaintiff of the performance of the first contract and so the plaintiff was not entitled to damages for breach of that contract. The Additional District Judge came, to the finding that the letter, exhibit 1 (b), dated the 12th November, 1946, was received by the plaintiff on 18-11-1946, before the plaintiff despatched the letter exhibit A (1). Exhibit 1 (b) reads as follows:

(2.) The main question for consideration in this Letters Patent appeal is whether the plaintiff had dispensed with the performance of the contract within the meaning of Section 63 of the Indian Contract Act and whether the learned Single Judge was right in holding that the plaintiff was entitled to a decree for damages for breach of contract. On behalf of the appellants the argument put forward was that upon the evidence the inference must bo drawn that the plaintiff dispensed with performance of the first contract and so he was not entitled to damages for its breach. Section 63 of the Indian Contract Act is in the following terms :

(3.) We accordingly allow this appeal, set aside the decree of the learned Single Judge of this Court, dated 5-8-1954 and order that the suit of the plaintiff be dismissed with costs throughout.