This first appeal arises out of the judgment and decree dated 27.8.90 passed by the learned Assistant District Judge, Tinsukia in Money Suit No.110 of 1986. By the impugned judgment and decree the learned Assistant District Judge decreed an amount of Rs. 71,050/- being the amount of damage of Rs.59,400/-+ 18% interest on it being the amount of Rs. 10,990/- and Rs.6,660/- the interest of Rs. 10,000/- for the security money for sometime.

2. The admitted position in this case is that the plaintiff entered into an agreement with the defendant No.l for supply of 4 wagons of Rapseed Oil by two contracts, that is, one is RRT 4 and the other is RRT 8. The further admitted position is that according to the terms of the contract against each contract a security deposit of Rs. 10,000/- is to be made. But in this particular case security deposit of Rs. 10,000/- was made towards one contract only and the Contract No. RRT 4 was executed by the defendant No.l. But with regard to contract No. RRT 8, that was not performed by the defendant No.l on the ground of security not being given. But it appears from Ext.5, the letter of the Broker, defendant No.2 through whom the contract was made, that was subsequently agreed that Rs. 10,000/- which was not refunded by defendant No.l after completion of the first contract shall be adjusted towards the second contract as security.

3. Be that as it may this contract was not performed and a suit for damages was filed. This case shall be squarely covered by section 73 of the Contract Act. Section 73 of the Contract Act provides for compensation for loss or damage caused by breach of contract. Section 73 requires that before any compensation or damage can be assessed, the first thing that must be established/proved by the plaintiff that there was a breach of contract on the part of the defendant and that the plaintiff was not guilty for the breach of that contract and regarding assessment of damage two considerations arise. They are as follows :

1. Whether the damage naturally arose in the usual course of thing from the breach ?

2. Whether the plaintiff had the means of remedying the inconvenience and has neglected to avail himself of it ?

4. The Court in the first instance must decide that defendant is liable and then it proceeds to assess what are liabilities. But till that determination there is no liability at all upon the defendant. A claim for damages for a breach of contract is, therefore, not a claim for a sum presently due (see AIR 1974 SC 1265, Union of India vs. Raman Iron Foundry).

5. In the instant case the findings have been arrived at that there was a breach of contract and the defendant No.l is responsible for it.

6. I have perused the materials on record and I am satisfied that the findings which have been arrived at by the lower Court is justified on this count.

7. The next question is what should be the quantum of damage. Regarding the measure of damage the principles have been laid down in the leading case of Hadley vs. Baxendable, 5 AC 25, and that English case has been accepted by the Court in India althrough as a guide of determining damage. The law laid down in that case is that two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such a breach of contract should be such as may be fairly and reasonably be considered either arising naturally i.e. according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both the parties, at the time they made the contract, as the probable result of the breach of it.

8. It is that aspect of the matter which must be proved in a case claiming damages for a breach of contract. In the instant case a bare perusal of the evidence will show that aspect has not been considered by the learned Judge in his judgment and he calculated Rs.59,400/- at the rate of Rs.50/- per tin of Refined Rapseed Oil of 11

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