(BOLISETTI) VENKATANARAYANA Vs. (VAKKALAYADA) LAKSHMI PUNNAYYA

JUDGEMENT

(1.) This suit deals with two-contracts for the delivery of paddy of various kinds by the defendants to the plaintiffs. The contracts are represented by Ex. C, dated 21 January 1919, and Ex. B, dated 2 June, 1919. At this stage of the litigation it is not disputed that the defendants failed to complete the delivery of the paddy required under either of these contracts and that the plaintiffs are, therefore, entitled to some damages. But it has first been contended by Mr. Venkatarama Aiyar for the defendants that the damages must be limited in the special circumstances of this ease to four annas a bag. It appears that at the dates of these contracts and at all material dates food-control by the Government was in force in this Presidency; and it also appears from Ex 6 series that the plaintiffs, when obtaining a license for the transport of the paddy covered by these contracts from Repalli, where it was to be delivered, to Guntur, where they then intended to mill it, gave an undertaking to the Government officers concerned that they would not sell it at a price above what would bring them a profit of four annas a bag. It has not been suggested for the plaintiffs before me that they had any right to disregard that undertaking, and it is, therefore, contended for the defendants that in respect of the paddy concerned in these contracts instead of looking to the market-price for the purpose of fixing the damages the lower Courts should have-limited the damages to four annas a bag. The answer given by Mr Somayya for the plaintiffs to that contention is that, though the plaintiffs undertook not to-sell at a price higher than that which would give them a profit of four annas a bag if they transported the paddy from Repalli to Guntur, there was nothing to prevent them from giving up the idea of transporting the bags to Guntur and selling them at Repalli; and, so far as the evidence goes, that appears to be correct. Even if the whole number of bags covered by these contracts had been delivered by the defendants at Repalli, the plaintiffs were under no obligation to transport them to Guntur, and, therefore, they could have sold them at Repalli at the market price. That being so, I think it is clear that the damages must be calculated in this case in the ordinary way on the market- price at the place of delivery i.e. at Repalli.

(2.) Mr. Venkatarama Aiyar's next contention is that the lower Courts have gone wrong in fixing 22 November, 19l9 as the date in respect of which the damages should be calculated. The learned Subordinate Judge has stated in his judgment that the time for performance of these contracts and the connected con-tract represented by Ex. A was one week from the dates of the contracts, and Mr. Venkatarama Iyer has suggested that that statement is not incorrect. But when we look at the contracts, we find that no time is fixed except in Ex. A. Ex. A was made a considerable time after Ex. C and a few days before Ex. B. But apart from the fact that one week is fixed as the time for performance in Ex. A there is no evidence that the time for performance in respect of the other two contracts was to be a week or any particular time and I cannot see any justification for a finding that the time for the performance of the two contracts with which we are now concerned was a week. That being so, it is clear that the defendants had to perform their part within a reasonable time. It will be convenient for the moment to deal with the two contracts separately. Ex. B was executed on 2 June, 1919. The date which the plaintiffs give as the date in respect of which they calculate their damages is 22 November, 1919. I do not think it can be seriously contended that, unless there are some special circumstances, the period from 2 June, to 22 November, 1919 can be taken as a reasonable time for the performance of that contract. In ordinary circumstances a reasonable time for the performance of such a contract would have expired long before November. Mr. Venkatarama Aiyar, relying upon Muthaya Maniagaran V/s. Lekku Reddiar [1912] 37 Mad. 412, con-tends that the plaintiffs had no right to extend of their own accord and for their own purposes the time for performance of the contract to so late a date as 22 November, and so make the defendants liable for a higher rate of damages. I think it is quite clear that the plaintiffs could have no such right. But it does not appear to me that they tried to do anything of that sort. This is not a case of the plaintiffs lying by for a long time and then suddenly saying on a date when the prices had risen that they would treat the contract as broken. It appears that the defendants went on making deliveries under the contract, Ex. B, in August, September, October and lastly on 21 November 1919, and those deliveries the plaintiffs accepted towards the contract. At one stage of his argument Mr. Venkatarama Aiyar contended that those could not be treated as deliveries towards this contract and pointed out that the defendants on the contrary maintained that they had on 16 June 1919 by Ex. 12 (c) declared that they would no longer perform the contract. That letter, Ex. 12 (c), was found by the District Munsif to be a fabrication, and the learned Subordinate Judge has found on the first point which he discusses in his judgment that those contracts were not cancelled by the defendants. That being so, I think we must take it that the deliveries made by the defendants after June were towards this contract.

(3.) It is not suggested that there was any subsequent contract between the parties, and, if the deliveries were not towards the performance of this contract, then there was no agreement, so far as we can see, between the parties about the price or any other conditions of the transaction. If we take it, as I think we must take it, that the defendants went on making deliveries towards this contract and the plaintiffs went on accepting them up to 21st November 1919, what is the proper inference from that in the circumstances of the case? It might mean that there had been some definite agreement between the parties to extend the time for delivery; but that has not been suggested on either side. It might mean that the defendants, although they were in default, chose to treat the contract as subsisting and went on making deliveries as in Ashmore V/s. Cox [1889] 1 Q.B 436, Or, it might mean that the plaintiffs at the request, express or implied, of the defendants were willing to wait for delivery and to accept delivery after time, though long delayed. The circumstances then would be similar to those in Ogle V/s. Earl Vane [1866] 2 Q.B. 275. I think it is quite possible and reasonable to draw either of the last two inferences mentioned from the facts of this case, and either is sufficient for the plaintiff's purpose. Mr. Somayya for the plaintiffs urges that the proper inference is that the plaintiffs were willing to wait at the implied request of the defendants until 21 November and up to that date continued to take delivery. If that is so, then there would be nothing unjustifiable in the plaintiffs, after waiting so long saying on 22nd November that they would wait no longer and that they put an end to the contract on that date; and that was what they did by Ex. D. If they did that, then the date for the calculation of damages would be the date fixed by the District Munsif and the Subordinate Judge namely 22 November, 1919: of. Ogle V/s. Earl Vane [1866] 2 Q.B. 275 and Brandit & Co. V/s. Moris & Co. [1917] 2 K.B. 784. I see no sufficient reason, therefore, to interfere with the decision of the learned Subordinate Judge in respect of this contract so far as it turns on the date for the calculation of damages. The same principles must be applied to the contract represented by Ex. C. That con-tract was made on 21 January 1919; but the defendants went on making deliveries towards it until 5 November 1919. The plaintiffs were entitled to put an end to that contract, as they did on 22 November, 1919 and to claim damages calculated as on that date.