A party's failure to fulfill a vital condition of a contract, such as timely payment of bills or maintenance of a road in good condition, can constitute a breach of contract, entitling the other party to rescind the contract under Section 55 of the Indian Contract Act.

Judgment

HIDAYATULLAH, J. : Mahabir Prasad Rungta, appellant in these two appeals, was plaintiff in his own suit and defendant in a counter suit filed by Durga Datt, the respondent. The two appeals have been filed on certificates granted by the Judicial Commissioner, Vindhya Pradesh against a common judgment and decree of the Judicial Commissioner s Court in four appeals filed by the rival parties, two in each civil suit. Certificate was also granted to the respondent; but he did not take steps in that behalf, and we are, therefore, concerned only with the appeals of Mahabir Prasad Rungta.

2. The two suits were filed in the following circumstances : Rungta owns a colliery at Budhar in Madhya Pradesh. On October 30, 1950, an agreement was executed between Rungta and the respondent, Durga Datt. Durga Datt agreed to transport coal from the colliery to the railway station at the rate of Rs. 2-8-0 per ton for a period of two years commencing from November 11, 1950 to November 10, 1952. That agreement is Ex. P-1. The case of Rungta was that Durga Datt broke the contract from July 29, 1951, by stopping the work of transport. Durga Datt in his suit, on the other hand, averred that Rungta had broken the agreement and work of carriage as a result was stopped from July 30, 1951. The difference of a day between them is of no consequence. Rungta s case was that as a result of the breach of the contract on the part of Durga Datt, he was required to employ other carriers and to pay them at Rs. 3 per ton, and he incurred demurrage and damages to his constituents for delay in supplies. He, therefore, claimed a sum of Rs. 60,000 as damages, including Rs. 20,000 as general damages for loss of business, credit and reputation. He admitted that a sum of Rs. 15,087-5-0 was owed by him to Durga Datt on account of coal carried by the latter, and he thus claimed Rs. 44,912-11-0, after allowing credit for that sum.

3. Durga Datt, in his suit, asked for a decree for Rs. 49,544-12-0. This included Rs. 26,139-11-0 on account of arrears of bills and Rs. 905-1-0 as interest on the amount The balance (Rs. 22,500) was claimed as damages for loss of business and profits of the unexpired period of the contract at Rs. 1,500 per month. In giving the particulars for Rs. 26,139-11-0, Durga Datt stated that he had transported 15,844 tons 2 Cwts of coal to the end of July 1951, which were loaded in the wagons and despatched. He also claimed Rs. 7,500 in respect of 3000 tons of coal which he had transported to the railway yard, but which had not been loaded on the wagons. After adjusting sundry amounts and allowing credit for rupees 21,861-7-6, he claimed Rs. 26,139-11-0, as stated above. Durga Datt alleged that Rungta was guilty of breach of the contract particularly of cls. (4), (5) and (8) thereof, which compelled him to rescind the contract. These clauses may be quoted here :

"(4) Petrol :- It will be arranged by party No. 1 himself but party No. 2 will help in time of need to get the petrol; the expenses incurred by party No. 2 for securing such petrol will be borne by party No. 1. If party No. 2 in spite of his best efforts cannot arrange for petrol then in such case party No. 1 will not be responsible for any loss in regard to transportation of coal.

(5) Payment of Bills : party No. 2 will make payment of Bills of party No. 1 for actual despatch of coal on the 10th of the following months;

(8) The road will be kept in repair by party No. 2."

4. The two suits were consolidated by the trial Judge, and evidence was partly recorded separately and partly for the two suits together. The trial Judge held that the breach of the contract proceeded form Durga Datt, and the suit of Rungta was decreed in the sum of Rs. 12,900 as damages due to him. In the other suit, the trial Judge held that Durga Datt was entitled to a payment of Rs. 26,695-6-6 and a decree for rupees 13,795-6-6 was passed in his favour after setting off the two amounts against each other. The rest of the claims