NARAYANASWAMI REDDIYAR Vs. MADRAS RAILWAY COMPANY (LIMITED)

JUDGEMENT

(1.) This is an appeal against the decree of Boddam, J., dismissing the suit brought by the appellant as the assignee (Exhibit W) of all "the moneys and outstandings" due, from the respondent, to one Mr. O Shaughnessy under a contract (Exhibit B) between him and the respondent, in regard to the construction of the Kolar Gold Fields Re-alignment Line. The suit was for the recovery of Rs. 8,361-13-11, being the balance (with interest) alleged to be due under the said contract, after giving credit to the sum of Rs. 6,498-3-11 (Exhibit KK) paid by the Company to the appellant as the assignee of Mr. O Shaughnessy, The amount sued for copsists of two items i.e., a sum of Rs. 3,000, being the amount deposited by Mr. O Shaughnessy as security for the performance of the contract and another sum of Rs. 4,767- 12-7, representing the 10 per cent deductions withheld by the Company, (under the provisions of the contract) as further security, from payments made, from time to time, to Mr. O Shaughnessy (and subsequent to the assignment, to the appellant) for works actually done by Mr. O Shaughnessy before the 21 June 1900, on which date the Railway Company, under the provisions of the contract, took over the remaining works from his hands, after giving him due notice (Exhibit 26) and entrusted the same to the appellant, under a fresh and independent contract (Exhibit S) entered into with him.

(2.) The respondent resists the appellant's claim principally on two grounds, viz., (1) that Mr. O Shaughnessy having failed to complete the works within the stipulated time, to the satisfaction of the District Engineer, has forfeited the two items claimed in the suit ; and (2) that by reason of his breach of contract the Company has sustained loss and damage to the extent of Rs. 10,300-11-8 (paragraph 7 of the written statement) and the Government of His Highness the Maharajah of Mysore,--for whose benefit the contract was entered into by the respondent--has also " lost profits and incurred liabilities for exceeding the amount claimed" (paragraph 9 of the written statement).

(3.) In support of the appeal it is urged that there was really no breach of contract by Mr, O Shaughnessy as he was unable to complete the works within the stipulated time partly because of the laches and negligence of the respondent (in furnishing him with the plan of one of the bridges to be built) and partly in consequence of the fact that the quantity of work which had to be actually done turned out to be much in excess of the estimated quantity and that the respondent therefore acted unlawfully in taking over the unfinished works from Mr. O Shaughnessy. It is further contended that even if Mr. O Shaughnessy had committed a breach of contract, the respondent has sustained no loss or damage thereby, inasmuch as the unfinished works were entrusted to the appellant at the same rates as under Mr. O Shaughnessy's contract and that the item of Rs. 7,400 representing the cost of the special establishment continued to be maintained by the Company in connection with the unfinished contract work, from the 3 June to February 1901, and the items of loss of profits to and liabilities incurred by the Government of Mysore (in consequence of the working of the realignment line having been delayed) cannot be claimed as damages flowing from the alleged breach of contract by Mr. O Shaughnessy.