JUGAL KISHORE Vs. RAM NARAIN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of damages for breach of a contract to supply sugar-cane juice. This and other remaining appeals are connected and in all of them practically the same point arises for determination. I propose to take up Second Appeal No. 1627 of 1920 as the principal case. In this case there was a contract between the plaintiff, on the one hand, and defendant No. 1 on the other, entered into on the 21 of February 1919 under which Rs. 40 were paid by the plaintiff as an advance and it was agreed that the defendant No. 1 would supply to the plaintiff the sugar-cane juice which would be the product of the 8 bighas of land mentioned in the contract and that this juice would be supplied at the rate of Rs. 34 per karda each karda being equivalent to 50 maunds. There was a provision in the deed that, if the juice supplied was not in value equal to the amount advanced then the plaintiff would be entitled to recover the balance together with interest at the rate of 2 per cent. per mensem. It contained an undertaking that defendant No. 1 would not sell the juice to any one else and would not enter into a contract for the supply of this juice with any third party, that in case he did so and broke the contract the plaintiff would be entitled to recover damages at Rs. 10 per bigha. The amount advanced was made a charge on the future produce of the land. On the findings of both the Courts below it is clear that defendant No. 2, with a full knowledge of the existence of this contract, purchased the juice from defendant No. 1 and appropriated it and thereby assisted defendant No. 1 in breaking his contract with the plaintiff.

(2.) The plaintiff had claimed damages at the rate mentioned in the written contract both as against defendant No 1, and his transferee defendant No. 2. On behalf of the transferee it was pleaded that he himself was not liable in as much as he was a purchaser without notice. Both the Courts below have found it, as a fact, that defendant No. 2, had full notice of the previous contract and was liable equally with defendant No. 1.

(3.) The Court of first instance decreed the amount claimed in full but that amount has been reduced by the lower Appellate Court. The plaintiff has come up in second appeal from the decree of the lower Appellate Court and asks for the whole amount claimed. The defendant transferee has filed cross-objections denying his liability to pay anything at all. I propose to take up the cross-objections first, because, if those objections are allowed, defendant No. 2, would have to be exempted completely. On his behalf it is strongly contended that the mortgage of moveable property which was not in existence at the time when the contract was made was invalid and that in any case the plaintiff is not entitled to any relief against the defendant transferee. In my opinion, this point is concluded by the case of Bansidhar V/s. Sant Lal 10 A. 133 : A.W.N. (1888) 35 : 6 Ind. Dec. (N.S.) 90 which I am unable to distinguish. In that case a contract was entered into by one Deoki Prasad with the plaintiff for supplying indigo produce for the years subsequent to 1292 Fasli and the said produce was agreed upon to remain hypothecated in lieu of the amount from Deoki Prasad and attached the indigo produce in the hands of Bansidhar the latter objected on the ground that the property had been previously sold to him. On a suit brought by the plaintiff against Deoki Prasad as well as Bansidhar it was held that in effect a valid charge had been created on the indigo produce even though that produce was not actually in existence at the time when the contract was entered into and further that Bansidhar having wrongfully converted the security created by the bond was liable to the plaintiff for damages sustained by him. The decision was based on the general principles of equity and the claim was held to be enforceable as against the transferee of the produce with notice of the equitable interest. This case does not seem to have been dissented from in any subsequent case. On the other hand, the principle laid down therein has been followed in the case of Navajee V/s. The Administrator General of Madras 22 I.C. 566 : 38 M. 500. The facts of the former case are parallel to the facts of the case before me and I am unable to distinguish the two cases and as a single Judge I am bound to follow the ruling in Bansidhar V/s. Sant Lal 10 A. 133 : A.W.N. (1888) 35 : 6 Ind. Dec. (N.S.) 90. In my opinion, therefore, the objections raised by the defendant-transferee that he is not liable at all are without force and must be dismissed.