ANANDRAM MANGTURAM Vs. BHOLARAM TANUMAL

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Kania dated June 20, 1944. The action is by a purchaser of certain goods against the vendors, who are the appellants in this Court, for damages for breach of contract. The breach which is now admitted was the failure of the appellants to deliver thirty-six bales of cloth, the balance of forty-one bales, the subject- matter of the contract, before the expiry of the month of February, 1943.

(2.) The only question in dispute is the date on which damages are to be assessed which becomes very material by virtue of the somewhat violent fluctuations in the market prices. Four different dates have been suggested, and the difference in the quantum of damages is substantial. The first date is February 28, 1943, resulting in damages of approximately Rs. 7,000; the second date is May 5, 1943, resulting in damages of approximately Rs. 19,000; the third date is June 19, 1943, resulting in damages of approximately Rs. 14,000; and the last date is July 28, 1943, resulting in damages of approximately Rs. 1,400.

(3.) It is common ground that unless the date of the performance of the contract, was in some way or other extended, the time of the breach must be on February 28, 1943. Mr. Munshi on behalf of the appellants contends that the relevant date is July 28, alternatively that it is March 1. Mr. M.V. Desai for the respondent-purchaser claims that the date is May 5, and the learned Judge in the Court below has decided in favour of June 19, 1943. The answer to this problem is to be found by determining what is the construction to be put upon certain correspondence which passed between the legal advisers of the parties after the purchase and up to July 28 having regard to two sections of the Indian Contract Act, that is to say, Sections 55 and 63. Section 55, so far as material, is as follows: When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. Section 63 is in these terms: Every promisee may dispense with or remit, wholly, or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. So that the question is : did the respondent purchaser extend the time for the performance of the contract?