BISSESSAR DASS DAGA Vs. EMMUNUEL VAS

JUDGEMENT

(1.) On November 5, 1923, two applications came on for hearing before the Additional District Judge of Nagpur in execution proceedings taken in Suit No. 4 of 1921. The first in date was that of the present respondents, defendants and judgment-debtors in the suit, for leave to deposit Rs. 28,649-2-9 to be paid over to the decree-holders, and for an order declaring the decree to have been thus fully satisfied. Tin other was that of the decree-holders for execution of their decree by seizure and delivery to them of certain manganese ore, alleged to be lying at several mines and railway sidings, and by the appointment of a receiver and other relief, The respondents, having got wind of the appellants intention to apply to the Court, lodged their application first, but nothing turns on this. The learned Judge, holding that under the decree the judgment-debtors were entitled to take the course proposed, granted their application and held 1627 that the decree-holders were not entitled to the relief prayed but must tike in satisfaction the amount deposited by the judgment-debtors, and his determination was affirmed on appeal by the Court of the Judicial Commissioner of the Central Provinces. The case now comes to their Lordships Board on the construction of the decree in question and particularly of Clause 10, which is as follows :- 10. That in the event of the defendants failing to deliver the full quantity of 4,000 tons of ore of the stipulated grade in any particular year or violating-any of the conditions of this compromise, the defendants shall pay to plaintiffs damages at the rate of Rs. 1 (rupee one) per ton on the whole of the quantity which may thon have remained undelivered out of the total quantity of 31.231 tons and the same shall be recovered by execution of this decree.

(2.) On March 1, 1916, the respondents, a syndicate possessed of and working manganese mines and dealing in the ore produced there, had contracted with K. Ettlinger & Co., of London, for the purchase of 18,000 tons of their manganese ore by instalments over an extended period. The contract contained provisions to secure to the buyers the exclusive supply of the sellers ore till the contract quantity had been worked out. At the end of the year the benefit of this contract was assigned to the present appellants by the Official Liquidator under the war legislation applicable, and deliveries of ore under it and payments for purposes connected with it were made for some time. In 1921 the buyers commenced the suit, No. 4 of 1921, above mentioned, alleging deliveries of ore by the defendants to third parties in breach of the contract to the extent of over 1,000 tons and claiming a mandatory injunction and other relief. The defendants in their written statement alleged that the contract was all along wholly void as constituting a trading with the enemy; that the assignment of it was invalid; that their deliveries of ore to third parties were justifiable on various grounds; and that the appellants on their side were guilty of numerous breaches of contract.

(3.) The suit proceeded as far as the formulation of the issues, but they were never tried. The parties arrived at an agreement of compromise, and the terms, with one variation, which their Lordships agree with the Judicial Commissioner's Court in thinking immaterial for present purposes, were embodied in the compromise decree of February 28, 1922, out of which the execution proceedings now in question arose. It is entitled in the suit; it recites that "this suit coming on this day for final disposal it is hereby ordered and decreed in terms of the compromise arrived at between the parties and sanctioned by the Court", and it then sets out the agreed clauses. The second of these restrains the defendants from selling ore from the mines mentioned in the l" agreement of March 1, 1916, or alienating the mines themselves (except as provided in Clause 8), till they have delivered the whole remaining balance of 31, 234 tons. The third provides for deliveries at the rate of 4,000 tons per year for seven successive years ending in February, 1929, with a balance delivery of 3,234 tons in the next and final year. Then follow provisions for the quality of the ore to be delivered and for determination of that quality by analysis; for tender of each lot in writing, with particulars of the mine of origin and the place of delivery, each lot not being less than 500 tons, with liberty to the defendants in case they raise more than 4,000 tons in one year to sell the surplus to third parties, giving notice of the same with full particulars to the plaintiffs. Clause 9 fixes the price payable by the plaintiffs at Rs. 8 per ton. Then follows Clause 10 quoted above. The general tenor of this agreed decree shows that, like the original agreement on which it is founded, the parties had in contemplation the execution and completion of this contract by actual deliveries in annual instalments, the performance being secured by the present grant of an injunction preventing the defendants from finding any alternative market for their ore.