GAURI DATT BASDEO Vs. NANIK RAM CHAUTHMAL

JUDGEMENT

(1.) THE facts of the case are these. On the 2nd of February 1915 the parties entered into a contract by which the defendant undertook to deliver to the plaintiffs 69 maunds 30 seers of sugar at the rate of Rs. 13-4-0 per maund; no time was fixed for delivery. THE plaintiff stated that the defendant from time to time promised to deliver the sugar but never did so; that in May 1915 the plaintiff gave notice to the defendant that unless the sugar was delivered by the 17th of May 1915 the contract would be deemed cancelled. THE sugar not having been delivered, the plaintiff brought this suit for damages claiming the damages at the difference between the contract rate and the rate prevailing on the 17th May 1915. On that date the market rate was stated to be Rs. 17-4-0; THE plaintiff accordingly claimed damages at the rate of RB. 4 per maund. THE defendant admitted the breach to contract alleged by the plaintiff, but stated that the parties had agreed that damages would be given to the plaintiff at the rate of annas two per maund. He also urged that in such cases goods were usually delivered within two or four days and that the plaintiff could only claim damages at the rate prevailing at the end of the two or four days. THE Court bellow disbelieved the defendant s allegation that the parties had agreed to assess damages at the rate of two annas per maund. It was, however, of opinion that the usual practice of the trade was where no date was fixed for delivery that the goods were delivered within a week or ten days and that the breach, therefore, took place on the expiry of the ten days and damages should be awarded with reference to the market rate prevailing at the time. It is contended on behalf of the plaintiff that the contract not having been put an end to until the 17th of May 1915, the market rate prevailing on that date should have been taken into consideration in assessing the damages. This contention seems to me to be correct.

(2.) ORDINARILY damages are to be calculated at the market rate prevailing on the date on which a breach of contract was committed. In this case it is admitted that no time was fixed for delivery. Therefore, the contract subsisted until it was terminated by the plaintiffs giving notice to the defendant that they would not accept delivery after the 17th of May 1915. This case comes within the purview 6f illustration (c) to Section 73 of the Contract Act. In this case no custom of trade was clearly asserted and proved on the question of delivery. On the contrary the plaintiffs statement was that the defendant from time to time promised to deliver the goods and this statement stood uncontradicted. Therefore, the contract must be deemed to have subsisted till the 17th" of May 1915 when the plaintiffs by notice put an end to it. The damages should, therefore, have been calculated on the difference between the rate prevailing in the market on that date and the contract rate. According to the evidence adduced the prevailing rate was Rs. 17 a maund in May 915. Therefore, the difference between the contract rate and the market rate was Rs. 3-12-0 a maund and the plaintiffs were entitled to damages calculated at the rat6 of Rs. 3-12-0 a maund. The amount due thus comes to Rs. 261-9-0. I allow the application aud varying the decree of the Court below make a decree in the plaintiffs favour for Rs. 261-9-0 with proportionate costs in both Courts to be paid to and received by the respective parties.