VISHNU SUGAR MILLSLTD Vs. RAMESHWAR JUTE MILLSLTD

JUDGEMENT

(1.) The Rameshwar Jute Mills Limited, the plaintiff respondent in this Second Appeal, entered into two contracts of sale with the Vishnu Sugar Mills Limited, defendant appellant, through different brokers, for supply of 60,000 gunny bags. The first contract which is Ext. 1/a was entered into on 13-8-1957. It was for supply of 30,000 bags, 10,000 to be supplied and paid for in each of the three months -- October, November and December, 1957. The other contract (Ext. 1) was entered into on 28-8-57. It was also for supply of 30,000 bags, 10,000 to be supplied and paid for in each of the three months--October, November and December, 1957. The rate in both the contracts was Rs. 139 per 100 bags. The appellant accepted the contract through its letters (Exts. 2 and 2/a) and thereafter sent despatch instructions to the respondent in its letter dated 22-8-57 (Ext. 2/b) and letter dated 2-9-57 (Ext. 2/c). In persuance of the despatch instructions, the respondent despatched on 5-10-57 20,000 bags and sent the despatch advice in its letter dated 9-10-57 (Ext. 2/f). The consignment of 20,000 bags was taken delivery of and as the railway receipt had been sent through bank, the payment had also been made by the appellant. A dispute was, however, raised by the appellant in regard to the quality of the bags supplied by the respondent. There was correspondence between the parties and ultimately the appellant refused to accept any supply for the balance of the quantity of bags contracted to be sold by the respondent, i.e., 40,000 bags. The respondent, thereupon, after giving a formal notice to the appellant instituted the present suit giving rise to this Second Appeal on the 11th of October, 1958 for realisation of Rs. 3,100.00 as damages for breach of contract on the basis that the market rate of gunny bags had gone down to Rs. 134-50 in November, 1957 and Rs. 128.00 in December, 1957, In other words, a sum of Rs. 900.00 by way of damages was claimed at the rate of Rs. 4.50 per 100 bags for the instalment of 20,000 bags, which was to be supplied in November and at the rate of Rs. 11 per 100 for the last instalment of 20,000 bags, which was to be supplied in December, 1957. The respondent also claimed a sum of Rs. 86.81 by way of interest at 12 per cent, per annum on the said amount of Rs. 3,100.00 from 4-7-58 to 28-9-58; it also claimed interest pendente lite and future.

(2.) The learned Munsif who tried the suit held that the appellant had committed breach of the contract and was liable for damages. It decreed the suit of the respondent for the total amount of Rs. 3,186.81. No interest pendente lite or future, however, was either allowed or disallowed by the learned Munsif in express terms. The result was that it must be deemed to have been disallowed. The defendant went up in appeal. The plaintiff did not file any cross-objection for claiming any amount of interest pendente lite or future. The lower appellate court has upheld the decision of the learned Munsif and hence the defendants has preferred this Second Appeal.

(3.) In order to appreciate and decide the point which has been raised in this appeal, it is necessary to refer to some salient features and facts of the case from the admitted correspondence between the parties. Before I do so, I may dispose of the point of jurisdiction, which had been raised by the appellant in the trial court in that the Samastipur Court had no jurisdiction to try the suit. The trial court held against the appellant; so did the lower appellate court in this regard. The point was mentioned in this Second Appeal but could not be pressed not only because on merits it had no substance but also because it was difficult for the appellant to show any prejudice as it was necessary to be shown under Section 21 of the Code of Civil Procedure.