GOVERDHANLAL Vs. BAKHTAWARLAL

JUDGEMENT

(1.) THIS is the defendants appeal, and arises out of a suit for the recovery of Rs. 10,200/- on account of the balance of the price of a 26 H. P. engine and 3 expellers, Rs. 221/- interest, and Rs. 20/- rent, totalling Rs. 10,441/-, or in the alternative for Rs. 6,200/- on account of damages for breach of contract.

(2.) THE plaintiff Bakhtawarlal's case is that the defendant entered into a contract on Baishakh Sudi 12, Samvat 2001, corresponding to 5th May, 1944 at Sambhar, with the plaintiff for the purchase of a 26 H. P. engine with a tank and all its equipments for Rs. 9,000/- and 3 expellers for Rs. 2,000/ -. Rs. 800/-were paid in advance, and it was agreed that the balance would be paid within 15 or 30 days, and the delivery of the purchased goods would then be taken. THE agreement was reduced into writing in two parts - one signed by Sugan Chand, defendant No. 3 on behalf of defendants Nos. 1 and 2, Govar-dhan and Amarchand, which was delivered to the plaintiff, and the other signed by the plaintiff, which was delivered to the defendant. After the expiry of 30 days, the defendants did not turn up to make payment of the balance of the price, and take delivery of the engine and the oil expellers. THE plaintiff sent reminders to the defendants for payment of the balance, and for taking delivery of the engine and the oil expellers, so that a mechanic might be sent to install the engine at the defendant's place and put it in a working order. THE defendants promised to pay the balance within two to four days, but it was not done, although many more reminders were sent thereafter. Finally. , a notice dated 2nd August, 1944 was served on the defendants, but they did not send any reply to it. It was alleged that the plaintiff was always prepared to perform his part of the contract, but as the defendants, despite many reminders and notice, did not make payment, the suit had to be filed. THE plaintiff claimed in the first instance a sum of Rs. 10,441/- as follows: - (1) Rs. 10,200/- balance of the price of the engine and the expellers; (2) Rs. 221/- interest at the rate of 6% p. a. till the date of the institution of the suit; and (3) Rs. 20/- rent @ Rs. 5/- p. m. alleged to have been paid for the premises in which the engine and the expellers were kept. Rs. 10,441/- Alternatively, he claimed Rs. 7,000/- as damages, and crediting the sum of Rs. 800/- paid in advance, he prayed for the recovery of Rs. 6,200/- on that account.

(3.) IN C. Sharpe & Co. , Ltd. vs. Nosawa & Co. (1) (L. R. 1917 King's Bench Division 814.) it was held that the damages should be measured by the difference between the contract price and the market price on the day when the goods ought to have been delivered within the meaning of sec. 51 (3) of the English Act. IN that case it was also held that the delivery intended by the contract was a constructive delivery by tender of the shipping documents as soon as possible after shipment, and that the said documents if sent forward with reasonable despatch would have reached London on July 21, and July 21 was, therefore, the date, the price prevailing on which should be taken into account, and not the date when the goods actually arrived on August 30.