SHEOCHARANLAL Vs. RAMRATAN

JUDGEMENT

(1.) . 1. The plaintiff-appellant's suit has been dismissed in both the lower Courts. His case was that he booked, before 2nd March 1921, 54 brass gunds to Raipur from Uhilmili (Chhindwara) and that, on the said date, the defendant-respondent and he entered into a contract under which the former agreed to purchase from the latter gunds worth Rs. 328 odd. The plaintiff also paid Rs. 90 towards the iprice and it was further agreed between stlie parties that the gunds booked by the plaintiff to Raipur were to be taken over by the defendant who was to allow credit for their value. In pursuance of this contract, the railway receipt was also made over to the defendant and he is alleged to have taken delivery of the 54 gunds in question on 7th March 1921.

(2.) THE parties were at variance as regards various details of the bargain, but the Judge of the first Court found that the agreement had been that the plaintiff was to pay in advance the price of the gunds purchased from the defendant. In pursuance of this alleged agreement the defendant sent a postcard to the plaintiff asking for the balance of the price and it is highly significant that no reply was sent by the plaintiff thereto. On the contrary, he remained quiescent for some three years and then filed the present suit in which he alleges that the defendant was responsible for the breach of contract and that he is accordingly entitled to recover the Rs. 90, earnest money, or first instalment of price, as well as the price of the old gunds taken delivery of from the plaintiff. The Judge of the first Court held that, as the plaintiff had broken the contract, he could, at the most, only claim the actual money paid by him, but he further found that money was due to the defendant on the contrary from the plaintiff. Further, he held that the suit was time barred and accordingly rejected the plaintiff's claim. The appeal to the District Judge, Chhindwara, proved equally unsuccessful. The District Judge, confirmed the first Court's finding as to the terms of the contract and held that, in the circumstances, the defendant had committed no breach and that the plaintiff could not sue for damages. He further held that the claim for refund of the Rs. 90 was time barred under Article 62, Schedule 2, Lim. Act. He further pointed out that the first Court had failed to determine the question of jurisdiction and that in this connexion also the suit should not have been filed in Chhindwara but in Raipur. Against these findings, the plaintiff has now come up to this Court.

(3.) SOME argument has been addressed to me that the circumstances of the present case bring it under Section 70, Contract Act. The section in question, I need hardly say, has no application whatever to a case like the present where we are concerned with the question of a specific contract entered into by the parties, in which the real bone of contention was as to which side had broken it. On that point, there is a concurrent finding of both the lower Courts that the plaintiff was responsible for the breach and, even if it were open to me to vary that finding, I can see no reason for doing so.