The plaintiff, who proves the breach of the contract, has a duty to mitigate the loss consequent on the breach of the contract.

M. NANJAPPA VS. M. P. MUTHUSWAMY

( 1 ) THIS second appeal is by the defendant against the decree passed by the Principal District judge, Bangalore, in Regular Appeal No. 25 of 1966 modifying the decree passed by the principal Civil Judge, Bangalore (Urban), in Original Suit No. 83 of 1964. The plaintiff has also preferred cross-objections.

( 2 ) THE respondent Muthuswamy was employed by the appellant Nanjappa as a salesman under the contract Ex. D-1 dated 2nd January, 1962. The contractual period stipulated therein is five years. The salary fixed was Rs. 120 per month and Muthuswamy was entitled to annual increments at the rate of Rs. 10. The contract also provides that in the event of Muthuswamy deciding to start his own business, he is free to quit the job on the completion of three years of service. On the same day another contract came into existence between the parties under which nanjappa agreed to pay a further sum of Rs. 80 per month if Muthuswamy secured good business from places outside the city of Bangalore. It is not disputed that no occasion arose for payment of the additional amount as ,per the contract Ex. P-3. Muthuswamy was employed as a salesman in the employer's shop situated in the city of Bangalore, which deals in silk fabrics and garments. Muthuswamy rendered service as a salesman till 17-3-1964, when his service was terminated by the employer. Muthu-swamy instituted the suit on the 18th of July, 1964 for damages for breach of the contract of service Ex. D-1 and claimed a sum of Rs. 10,540. 00 as damages. This amount, according to Muthuswamy, represents the remuneration which he would have got if he had continued in service for the full period of five years stipulated in the contract of service Ex. D-1. He has claimed this amount after giving deduction to the amounts received from his employer.

( 3 ) NANJAPPA resisted the suit on various grounds. It is his case that it is Muthuswamy that has committed the breach of the contract and abandoned the service voluntarily and therefore, he is not entitled (liable) to pay any damages. His further case is that the amount of damages claimed by Muthuswamy is excessive and unreasonable.

( 4 ) THE Court of first instance awarded Rs. 500 to Muthuswamy, as nominal damages for breach of the contract. The Court held that it is Nanjappa the employer, that committed the breach of the contract as the termination of the service was brought about without any just or proper cause. The Court further held that Muthuswamy not having taken any reasonable steps to mitigate the damages, he is not entitled to claim remuneration for the un-expired period of the contract of service, which in this case happens to be 2 years, 9 months and 15 days.

( 5 ) THE decree passed by the Court of first instance was challenged by Muthuswamy in appeal to the District Judge, Bangalore. The learned District Judge allowed the appeal and made a decree in favour of Muthuswamy and awarded a sum of Rs. 5,130. 00 as damages for breach of the contract of service with interest on the said amount at 6 per cent. per annum from the date of suit till the date of realisation.

( 6 ) IT is the decree passed by the learned District Judge that is challenged by Nanjappa in this appeal. Muthuswamy has also filed his cross-objections and claimed higher amount as damages.

( 7 ) SRI K. M. Jagadeesa Sastry, learned counsel appearing for the appellant (defendant) contended that the learned District Judge committed an error in law in holding that the defendant not having placed any evidence on record to prove that other employment was available to the respondent (plaintiff), the plaintiff was not under an obligation to prove that he has taken reasonable steps for mitigating the damages resulting from the breach of the contract The learned District Judge has taken the view that the plaintiff, having successfully established that the defendant has committed the breach of the contract, would be entitled, by way of damages t

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