MURALIDHAR JALAN Vs. PARESH CHANDRA CHATTERJEE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs in a suit for damages for alleged breach of contract. The plaintiffs state that there was a contract between them and the defendant by which the latter agreed to supply both Finland and Japanese tea chests of different sizes at different rates. The total quantity of Finland chests which the defendants under, took to supply was 4975 and the total quantity of Japanese chests was 8125. The defendant failed to supply 1700 Finland chests and 1450 Japanese chests of different sizes towards the end of November, to be more precise, refused to supply them on 28-114939. Their further case is that at the date of the anticipatory breach on the part of the defendant the market for tea chests was very high and they claimed the difference between the alleged contract prices and the prices then prevailing as damage.

(2.) They say in their plaint that the contract was concluded through correspondence and the letter written by them to the defendants on 16-2-1939, which has been marked as Ex. Q, the letter of the defendant to them dated 7-3-1939, which has been marked as Ex. 63 and the further letter of the defendant to them dated 13-3-1939 which has been marked as Ex. 64 constituted the contract. There was further correspondence between the plaintiffs and the defendant before 16-2-1939, but those letters are not material except one which has been marked as Ex. 1 and an annexure to Ex. 1 which has been marked as Ex. 71. It is the common case of the parties that about 10,000 chests were supplied to the plaintiffs or to the plaintiffs order by the defendant from time to time. The plaintiffs paid most of the bills, but at the date of the suit, it is admitted by the plaintiffs that bills amounting to Rs. 4000 odd had not been honoured by payment by the plaintiffs. The main defence of the defendant was that there was no contract as alleged in the plaint. In his written statement the defendant prayed for a decree for the sum of Rs. 4300 odd in respect of which his bills had not been honoured by the plaintiffs. The plaintiffs were given the opportunity to reply to the cross-claim of the defendants. They availed themselves of that opportunity and filed statements in answer to the defendant's cross-claim on 16-12-1940. That document is printed at pp. 18 and 23 Part I of the paperbook. The learned Subordinate Judge held, that there was no contract as alleged by the plaintiffs but there was only a standing order on the defendant to supply chests, meaning thereby that the defendants were entitled to charge for the chests supplied by them, prices according to the market. He further held that the evidence to prove the amount of damages was insufficient. The plaintiffs have preferred the appeal to this Court.

(3.) In the view that we are taking it is not necessary to consider whether the evidence given in support of the claim for damages is satisfactory or not, because we are of opinion that there was no contract between the defendant and the plaintiffs as alleged in the plaint. It appears from the evidence that there were no dealings between the plaintiffs and the defendant before 1939. On 28-1-1939 the defendant wrote a letter, Ex. 1, to the plaintiffs. In that letter the defendant gave certain rates for some sizes of Finland chests and Japanese chests. A copy of their price list was also enclosed with that letter. That price list has been marked Ex. 71. The rates quoted by him in the letter Ex. 1 were lesser than the prices mentioned in the price list Ex. 71. The negotiations started from this letter. It is not necessary to refer to all the correspondence which followed after this letter. The most important letter to notice is-the letter of the plaintiffs dated 16-2-1939. That letter has been marked as Ex. Q. It is the common case of the parties that the proposal which must be taken to have come from the plaintiffs-is contained in this letter Ex. Q read with Ex. 1. We do not mention Ex. 71 in this connection, but we will have to refer to a portion of that, exhibit later on. The letter runs thus: Dear Sirs, "We thank you for your letter of the 11 instant. We are sending herewith the indents of the following concerns for total 4975 Finland chests (Elephant or Golden) and 8125 Japanese chests as follows: Please charge your ordinary rates in the bills and send a credit memo for the difference of the amount which is with jour special quotation as written in your letter of the 28 ultimo. Deliveries:--Should be made in the months as per requirement and per the route as written in detail in each of the indent. The Madarkhat, Parbatipur, Sadasiva and Kailashpur have intended 19x19x22 size Finland chests, but we had no quotation from you for this size, so if your manufacturers do not manufacture this size, please supply 19 x 19 x 24 instead of 19 x 19 x 22. R/R or B/L and bills to be sent direct to us for payment. Quality of shooks and fittings: Quality of shooks should be as per sample given to us, fittings should be as better as possible (detailed cballan for fittings should accompany each consignment to enable the Estate Managers to verify the sample). Marks:--If you cannot arrange for our marks on the first consignment, please have it from next consignment. Payment at 60 days sight. War risk or any other accident risks: Please see that on apprehension of such occurrence, you would adjust the supply accordingly; there would be nothing irregular if you would supply the whole of balance monthly requirement at a time, whenever you would have much apprehension, but you would get our confirmation before doing so. We would have, placed a bigger indent, but only with the apprehension of troubles in regular supply due to the factors written here in above, we are taking about 1/4 requirement from elsewhere. We hope out this new business with you would develop more satisfactory to our mutual interest, which only depends on your good quality and regular supply be completed during this year. Further, you should promise that you would not quote directly or take the order from any of our constituents in future or in the present without consulting us. We think we are fully clear in this matter. Kindly acknowledge receipt of the above at an early date and oblige. One paragraph of this letter which is of importance runs thus: War risk and any other risks: Please see that on apprehension of such occurrence you would adjust the supply accordingly; there would be nothing irregular if you would supply the whole of balance monthly requirement at a time, whenever you would have much apprehension, but you would get our confirmation-before doing so. This clause seems to have been put in view of the postscripts, in Ex. 71. That postscript runs thus: Though we expect to deliver the goods timely against contract, we shall not be responsible for failure to deliver or for late delivery of goods due to consequences of war or warlike operations.