FIRM CHUNNI LAL MANSA RAM THROUGH L VIDYA RAM Vs. FIRM SHEOPRASAD BANARSI DAS THROUGH SETH BANARSI DAS, SETH MUNNA LAL, SETH KASHI NATH ALIAS KASHI RAM

JUDGEMENT

(1.) This is a plaintiff's appeal. The plaintiff, Firm Chunni Lal Mansa Ram, which carries on business in molasses at Agra, sued to recover damages to the extent of Rs. 20,655 odd with interest, Rs. 227 odd, and earnest money amounting to Rs. 500 deposited with the defendant along with interest amounting to Rs. 9 odd, a total of Rs. 21,892 odd, on the allegation that the defendant, Firm Sheo Prasad Banarsi Das, Bijnor, (through its proprietor) had without justification broken the contract entered into by the latter for the supply to the former of 80,000 mds. of molasses. The plaintiff's case, put shortly, was that on 4 December 1938 the plaintiff firm and the defendant firm, through their proprietors, entered into a contract for the purchase by the plaintiff and supply by the defendant Sugar Mills of 50,000 mds. of molasses (sheera) at the rate of 1 anna 3 pies per maund. It was agreed that the delivery of the molasses would be taken by the plaintiff in 12 equal monthly instalments of 4200 mds., the delivery of each instalment being taken between the 16 of one month and 14 of the following month beginning from 16 December 1938. The plaintiff in his plaint mentioned some of the terms of the contract (Ex. A-1) but not all of them and he was specifically silent about term No. 6 of the contract which provided that "the responsibility of arranging tank wagons would be solely and entirely on us (the plaintiff firm)." In place of this term it was stated in the plaint that it was further agreed between the parties that the defendant would make arrangements for tank wagons for the plaintiff at his (plaintiff s) cost as the Railway Administration did not like to deal with individual merchants in this matter.

(2.) The plaintiff went on to allege that the defendant failed to make arrangements for the supply of tank wagons from the Railway Administration on behalf of, and at the cost of the plaintiff, in respect of the third instalment and that although the plaintiff actually sent other containers for the transport of the molasses, the defendant refused to take delivery of them and cancelled the contract on 24th March 1939; hence the present claim for damages on the allegation that the plaintiff had all along been ready to carry out its part of the contract but the defendant dishonestly failed to carry out the terms of the contract and thus committed a breach of the contract. The defendant firm in reply contended that the responsibility for the arrangement of tank wagons lay upon the plaintiff firm and that it was only at the special and personal request of the plaintiff, to oblige the plaintiff, that it wrote to the railway authorities for wagons and informed the plaintiff of the results, i.e., the replies received. It contended that in view of the provisions of Section 92, Evidence Act, it was not open to the plaintiff to prove the alleged term which was inconsistent with the terms of the written contract. It further contended that the suit in respect of the value of instalments of molasses subsequent to the date of the institution of the suit (30 May 1939) was premature, and that under the terms of the contract, on the failure of the plaintiff firm to take delivery of the molasses up to 20 March 1939, the defendant was entitled to cancel the con. tract. In this connection it was pleaded on behalf of the plaintiff that under the terms of the contract the defendant firm had no such right of cancellation.

(3.) The learned Civil Judge framed a large number of issues, some of which require only a passing mention. Upon these he held that the plaintiff firm was a registered firm and the suit was, therefore, maintainable; that as the defendant had cancelled the whole contract the suit was maintainable for the entire subject- matter of the contract; that Clauses (3) and (4) of the contract were not penal but just and proper in view of the fact that time was of the essence of the contract. He also held that it was shown that the suit was defective in form on the ground that the defendant firm consisted of six partners whereas it had been sued through three of its partners only. The first question of real importance which arose in the suit was covered by issues 2 and 3 which run as follows : Issue 2--Which party wag responsible for supplying tank wagons under the contract in question and which party committed breach of the terms of the contract in this respect ? Issue 3--Whether the responsibility of supplying tank wagons was taken by the defendant under same contract ? Whether oral evidence is admissible to prove such contract ?