SHRIMANT KUNWAR LAXMANRAO Vs. BUDHULAL

JUDGEMENT

(1.) THE plaintiff-appellant, Shrimant Kunwar Laxmanrao of Nagpur filed the present suit against the defendant-respondent, Budhulal for damages assessed at Rs. 9,182-1-3, in respect of an alleged breach of contract. His case was that the defendant on 20th February 1920, entered into a written agreement with him (of. P. 1) to supply 20 lacs of table-bricks of the size 8 3/4 x 4 1/2 x 2f" at Rs. 16 per . thousand and 10,000 Allahabad tiles at Rs. 45 a thousand, the tiles to be delivered in Nagpur free of all costs. The contract was to be completed within three years from the date of the agreement. The plaintiff's case further was that the defendant had, in pursuance of the agreement, only delivered 3,42,120 bricks to the Public Works Department at Nagpur, and that, although he had been pressed on several occasions to complete the contract, he had failed to do so. The plaintiff had advanced from time to time a total amount of Rs. 7,975 to the defendant under the contract. On the balance of account, after allowing for town duty and rejected bricks and damage claimed in respect of the difference between the market rate prevailing for bricks and the contract price and in respect of the undelivered material, the above sum of E3. 9,182-1-3 was claimed.

(2.) THE defendant's position was that he duly admitted the kararnama (P. 1) and that he had supplied 3,97,000 bricks and not, 3,42,120 bricks as alleged by the plaintiff, the bricks having been delivered on various dates in the early part of 1921. He duly admitted further having received advances or payments amounting only to Rs. 7,975. The defendant's case was, however, that the plaintiff under the contract was only entitled to bricks of the size specified above, which, according to the plaintiff, were required for the construction of a new palace in Nagpur. Later on, however, the plaintiff asked the defendant to supply a larger size of brick as he had entered into a contract with the Public Works Department to supply them with this larger size, the dimensions in this case being 9" x 4 1/2 x 3". Defendant declined to supply these bricks, as they were not according to the specification in the agreement. Thereafter, the plaintiff's agent agreed to pay Rs. 3 a thousand towards the extra cost of the larger kind of brick, but although 3,97,000 bricks of the larger size were supplied, the extra rate was not paid. Defendant continued to offer supply of the small sized bricks but these were refused by the plaintiff. In those circumstances the defendant pleaded that the plaintiff was, in reality, liable for the breach of contract. He also offered counter allegations as to the market rate for bricks of the larger size, which prevailed on 20th February 1920, and disputed various other matters of detail which formed part of the plaintiff's case. (Here the judgment narrated the issues and findings of the lower Court and proceeded.) The first point which arises for consideration is whether the original contract between the parties was varied by an agreement between the plaintiff's Kamdar, Moinuddin, and the defendant in order to obtain the supply of bricks of the larger size instead of the size specified in P. 1 and whether it was agreed to pay Rs. 3 per thousand extra for the said larger size of bricks, (The judgment then discussed the evidence on these points and finding, that the understanding must have been that the defendant was to supply bricks of the larger and standard size, the only ones which the Public Works Department would accept, and that the defendant must have delivered bricks of the larger size on the understanding that he would be paid extra therefor, but that the plaintiff or his agents were attempting all through to enforce delivery of the larger sized bricks at the rate agreed for the smaller, and proceeded.) I now come to the question of whether the plaintiff is entitled to demand refund of the surplus of Rs. 1,475 which admittedly now remains with the defendant. The Subordinate Judge's method of disposal of this item was not, in my opinion, a satisfactory or legal one. He takes into account an allegation of the defendant to the effect that he intended filing a separate suit for damages in view of the breach of the contract by the plaintiff, and the lower Court has held that under these circumstances the surplus in question should be forfeited towards compensation due to the defendant. In the first place, it is not clear how the lower Court could be certain that the damages, if any, the defendant could claim would amount to Rs. 1,475. The probabilities are against the defendant having suffered any material loss, for it is obvious that he had the larger bricks on hand and could have been able to arrange, and did so far arrange, a contract with the Public Works Department on far more remunerative terms than the plaintiff's contract would have been. In this Court the learned Counsel for the defendant has candidly admitted that he is prepared to agree to a refund of Rs. 500 being the advance made on 8-3-20, but he has urged that the plaintiff is not entitled to recover whatever balance may be left on the general account out of the original advance of Rs. 2,625. In this connexion he has relied on the following decisions: Mangalal v. Mt. Nanni A.I.R. 1922 Nag. 104; Natesa Aiyar v. Appavu Padayachi [1913] 38 Mad. 178; and Kunuar Chiranjit Singh v. Har Swarup A.I.R. 1926 P.C. 1.

(3.) THE judgment and decree of the lower Court are accordingly reversed and instead a decree for Rs. 1,475 will issue in favour of the plaintiff-appellant against the 'defendant-respondent, The latter will bear the plaintiff-appellant's costs in both Courts on this amount, while the plaintiff-appellant will bear the defendant-respondent's costs in both Courts on the balance of his claim as now dismissed.