HITKARI MOTORS Vs. ATTAR SINGH

JUDGEMENT

(1.) THIS is a second appeal against the judgment and the decree of the courts below decreeing the plaintiffs suit for recovery of Rs. 2000/ - from the appellant.

(2.) THE plaintiffs case was that he had placed an order with the defendant M/S Hitkari Motors Jullunder City for supply of Chasis Ford Diesel truck. The order was placed on 14th of November 1951 and in the order form the plaintiff stipulated that the truck should be supplied to the plaintiff within two months from that date. It appears the truck was not supplied to the plaintiff within the stipulated time as a result of which the order was formally cancelled by him on 4 -2 -1952. The plaintiff had also prayed for interest amounting to Rs. 475/ - but both the courts below have refused to grant the relief relating to interest. Both the courts below on a consideration of evidence and circumstances came to a clear finding that time being the essence of the contract in the present case and the articles not having been supplied to the plaintiff within the time stipulated the plaintiff was entitled to recover deposit of Rs. 2000/ - which he had deposited with the defendant as an advance.

(3.) APPEARING for the appellant Lala Sunder Lal submitted that the courts below have mis -applied the law and misconstrued the contract entered into between the parties, in the present case. It is well settled that the question as to whether time is the essence of the contract in a particular case is a question of fact and is binding in second appeal. I am fortified in my view by a decision of the Calcutta High Court reported in Beni Sah v. Sew Sah, AIR 1949 Cal 661 where Blank J. has observed as follows: