Judgement

Appeal (No. 80 of 1927) from a decree of the High Court (January 5, 1925) reversing a decree of the

Senior Subordinate Judge of Delhi.

The appellants brought a suit against the respondents in May, 1920, claiming damages for breach of

contract in failing to deliver goods under a contract of sale made in 1916.

The facts of the case appear from the judgment of the Judicial Committee. The trial judge made a decree for Rs.47,737 damages.

4 Law Rep. 55 Ind. App. 154 ( 1927- 1928) C hunna Mal-Ram Nath, Firm V. Mool C hand-Ram Bhagat, Firm 15

Both parties appealed to the High Court, the defendants contending that they were under no liability, and the plaintiffs contending that the damages awarded were insufficient.

The defendants appeal was allowed by the High Court, and the suit dismissed. The learned judges (Harrison and Campbell JJ.) were of opinion that the plaintiffs were entitled to put an end to the contract under s. 29 of the Indian Contract Act, 1872, and had done so. They considered also that the suit was not maintainable having regard to s. 63,

1927. Nov. 29. De Gruyther K.C. and Wallach for the appellants.

Sir George Lowndes K.C. and Dube for the respondents.

[Reference was made to the Indian Contract Act, ss. 39, 56, 63 ; Bradley v. Newson Sons & Co. ([ 1919] A. C. 16.); and Abaji Sitaram Modak v. Trimbak Municipality. (( 1903) I. L, R. 28 B. 66.)]

1928. Feb. 13. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal from decrees of the High Court of Judicature at Lahore dated January 5, 1925, which reversed the decree of the Senior Subordinate Judge of Delhi dated January 14, 1924, and dismissed the suit of the plaintiff with costs.

The suit out of which this appeal has arisen was one claiming damages for the non-delivery by the respondents of certain goods which the latter had agreed to sell and the appellants had agreed to purchase.

The principal question for decision in the appeal is whether under the circumstances proved in the case the plaintiffs are entitled to recover damages from the respondents for the alleged breach of their contract for the sale and delivery of the aforesaid goods.

In the order of Court of the Subordinate Judge of Delhi dated August 9, 1921, it is stated that the respondents (the defendants) had presented for the second time an application to be at liberty to add a plea that the plaintiffs were not ready or willing to perform their part of the contract entered into between the parties, and apropos of this application the Court said " The real question in dispute is whether the plaintiff, in face of the correspondence, could claim damages, and could he consider the contract as subsisting.

These points are covered by the issues already framed by me. If I find that the contract was cancelled and the plaintiff could not claim damages, the point as to readiness and willingness would not arise. If it is held by me that the contract subsisted, the question, as to readiness and willingness, would not crop up. We have got letters sent by the defendant that he considered the contract as cancelled, and if I hold that he was not justified in considering the contract as cancelled, he had no locus standi to raise the plea as to the want of -readiness and willingness on the part of the plaintiff."

The material parts of the aforesaid contract, which was dated November 29, 1916, and is very long, ran as follows "We had purchased one hundred and fifty (150) cases of white shirting marked D.-l May to November, i.e., seven shipments, of the office of R. J. Wood, at 205. 2d. We have sold the same to you at a net profit of Re. 0-4-0 per piece. The patterns and the invoices of the goods will be given to you on receipt. You shall have to take delivery of the goods on payment of their price to the Bank. You shall have to remove the goods on compliance with the condition of the office of R. J.

4 Law Rep. 55 Ind. App. 154 ( 1927- 1928) C hunna Mal-Ram Nath, Firm V. Mool C hand-Ram Bhaga