P L D 1964 (W (PLP)

FARUQUI, J.

‑This is a plaintiffs' appeal whose suit (No. 78/52) for damages was dismissed by Qadeeruddin Ahmad, J. sitting on the Original Side on the sole ground that the plaintiffs, though they succeeded in establishing the liability of the defendants for breach of contract, had failed to prove damages.

2. The three plaintiffs in this suit are partners in a firm at Edinburgh, Scotland and are importers of raw wool. The defendant is a firm carrying on business at Karachi, in the course of which they export raw wool from Pakistan. By a contract which was brought about by correspondence between the parties and was finalised on 26th October 1949 the defendants sold to the plaintiffs 400 bales of raw wool in 4 lots of 100 bales each of varying quality. The 200 bales which they failed to deliver and with which we are concerned in this appeal were of the following description and were sold to the plaintiffs on the terms and conditions noted below "(a) 100 bales Medium Vicanere Yellow wool, reciprocal yield guaranteed 75%, for C & F shipment to Glasgow or Liverpool up to 30th November 1949, at 31 d. per lb. (b) 100 bales Medium Vicanere Yellow wool, reciprocal yield guaranteed 80% for C & F shipment during December 1949 to Glasgow/Liverpool at 33 d. per lb. Each bale of wool was to contain 320 lbs. nett." The defendants failed to deliver these goods to the plaintiffs who have claimed damages as stated below (a) First lot of 100 bales Nett bought at the rate of 31 d. per lb. C & F. Market value on 31‑3‑50 i.e., the date of default... 47 d. per lb. C & F. Difference per lb. nett. 16d. per lb C & F. (b) Second lot of 100 bales: Nett bought at the rate of 331 per lb. C & F. Market value on 31‑3‑50 i.e., the date of default ...50d. per lb. C & F. Difference per lb. nett. 161d. per lb. C & F. Difference on 320.00 Ibs. net pound 2200‑0 _________ Total damages pound ... 4333‑6‑8." _________ In the first plaint as originally filed the plaintiffs had claimed Rs. 40,039‑6‑4 in Pakistani currency which was evidently calculated on the basis of Rs. 9‑4‑3 to a Sterling. However, in the amended plaint they claimed Rs. 57,958‑5‑4 which was calculated at the devalued rate of Pakistan rupee. The plaintiffs accordingly opened the necessary letters of credit in favour of the defendants. These were extended from time to time at the request of the defendants and were finally extended till 31st March 1950.

3. The material parts of the written statement of the defendants relevant for the purposes of the contentions raised before us are these: It was denied that the defendants had neglected or failed to give delivery. This was explained by saying that the defendants had shipped 100 bales out of the first 200 bales of the contracted goods and the plaintiffs raised a dispute as to the yield of the shipment made to them and it without testing the goods in accordance with the usage of the trade sold away by the same. The defendants insisted on a test of 5% being made in accordance with the usage of trade but the plaintiffs failed to comply with this demand of the defendants. The defendants had claimed the yield to be 85% and the plaintiffs had accordingly to remit to the defendants on the basis of the difference of the yield contracted for and the yield of the wool shipped by the defendants. Moreover, the plaintiffs failed to test the goods within 18 days of the arrival of the goods and to inform the defendants of the yield within the period allowed, i.e., 72 hours. The defendants had further shipped 100 bales of wool of the second lot and the plaintiffs had acted with regard to these goods also in the same manner which was in breach of the terms of the contract. It was stated that the plaintiffs' suit was in respect of the 100 remaining bales of the first lot of 200 bales and a similar 100 bales of the second lot of 200 bales. The defendants waited for these disputes to be settled, which being delayed the period of the letters of credit expired which the plaintiffs did not extend to enable the defendants to ship the 200 bales which were the subject‑matter of the suit. It was averred that the defendants were always ready, able and willing to perform their part of the contract. The breach as explained above was entirely on the part of the plaintiffs.

4. Two further written statements were filed and in the first it was pleaded that the plaintiffs' suit was barred under section 22 of the Limitation Act and in the second it was contended that the plaintiffs could not claim damages in Pakistan currency at the rate of at which they had claimed in the amended plaint.

5. A large number of issues were framed of which several were abandoned by the defendants and on the rest the learned Single Judge found in favour of the plaintiffs except on the issue relating to damages, and finding that these were not proved he dismissed the suit but did not allow any costs to the defendants. The plaintiffs have preferred this appeal.

6. This appeal first came up for hearing before another Bench who decided to take additional evidence on the question of damages and examined two witnesses Muhammad Siddiq Khan and Moosa Desai. It is the latter's evidence which is material on the question of market price and to this we shall refer presently.

7. Mr. Fazlur Rehman, the learned counsel for the appellants, in the first instance addressed us only upon the question of damages and the evidence in support of the market price. However, Mr. Sharifuddin, the learned counsel for the respondents, in his turn addressed us upon the main defenses raised by the defendants in the trial Court besides the question of damages. He pointed out and rightly that as the result of the suit had been in his favour he is entitled to raise all those questions which would entitle him to that result and to attack the findings of the learned trial Judge upon the other issues and this he could do without filing a cross appeal or cross objections. We allowed him to do so. Since these objections, if upheld, would disentitle the plaintiffs to the relief of damages we will deal with these contentions of the learned counsel for the respondents in the first instance before we go on to consider the question of damages. Mr. Sharifuddin urged the following points before us (1) That the suit when instituted was incompetent because it was filed in the name of a firm which was not carrying on business in Pakistan and the subsequent amendment of the plaint amounted to a substitution of a new party and the suit would therefore be barred having regard to the provisions of section 22 of the Limitation Act. (2) The breach was on the part of the plaintiffs. (3) No cause of action arose on 31st March 1950, because the contract was kept alive and the period for performance was extended. (4) In the alternative the date of the breach would be when the defendants repudiated the contract. (5) The last contention was with regard to the proof of damages but to this we shall revert after we have dealt with the four points stated above. On this question we would naturally have to deal with the contentions of the learned counsel for the appellant first.

8. With regard to the first point the following facts are material. The suit in the first instance was instituted in the name of Messrs Russel and Ramsden, a firm carrying on business at Edinburg. The plaint was presented on 11th January 1952. An application was then made on 27‑11‑53 praying for the amendment of the plaint by naming the three partners individually as plaintiffs instead of the firm in whose name the plaint stood. These three partners are (1) Henry Stanley Ramsden, (2) Henry James Ramsden, and (3) Albert Blair. This application of the plaintiffs was opposed by the defendants. The matter came before Inamullab, J. who by a reasoned order dated 26th January 1954, allowed the application as a result of which the name of the three partners was substituted for the firm and the plaint was accordingly amended. The point was urged by the defendants before Qadeeruddin Ahmad, 3. in the arguments at the conclusion of the evidence but the learned Judge over‑ruled them and said that he was not sitting in appeal against the order of Inamullah, J. whereby he had allowed the substitution of the name. Mr. Sharifuddin contended before us that in so far as the persons, who are partners of Messrs Russel and Ramaden,, were not carrying on business in Pakistan, they were not entitled to the facility provided by Order XXX, rule 1, C. P. C. and they could not sue in the name of the firm. That being so, it was urged in the first instance that the suit, when it was instituted, was a nullity and should have been dismissed. In the alternative it was urged that this was not a case of misdescription but of substitution of new plaintiff's in the case, which having been done under Order 1, rule 10, sub‑clause (1), the provision of section 22 of the Limitation Act would be attracted which, it was pointed out, was specifically mentioned in sub‑clause (5) of the said rule. Section 22 (1) of the Limitation Act which is relevant reads as follows "22. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party." It was then pointed out that according to the plaint the cause of action arose on 31‑3‑50 and the new plaintiffs having been substituted on 26‑1‑54 when the order of Inamullah, J. was made upon an application for amendment dated 27‑I1‑53, the suit was barred by limitation. The first part of the argument, viz., that the suit was incompetent and should have been dismissed, was not seriously pressed and in any case it was devoid of force. The institution of the suit in the name of the firm was clearly a case of bona fide mistake and the Court had ample power under Order 1, rule 10 to allow the correction as it did. It was, however, vehemently argued that this was a case of substitution of a new party and not a case of correction of a misdescription and, therefore, the suit must be held to have been instituted when such a substitution was made, thereby attracting the mischief of section 22 of the Limitation Act. Reliance was placed upon a judgment of the Bombay High Court reported in Vyankatesh Oil Mill Co. v. N. V. Valimahomed (A I R 1928 Born. 191). In this case the plaintiff had brought a suit in the name of a firm which carried on its business outside British India and a preliminary issue to the effect whether the plaintiff was entitled to sue in the name of the firm was decided in the negative whereupon he sought to amend the plaint by inserting the names of the individual partners. It was held by Blackwell, J. that the suit was brought by an entity which had no legal existence in the eyes of Indian Law and, therefore, the amendment could not be treated as an amendment following upon a mere misdescription but must be treated as an application for the substitution, as plaintiffs of the individual persons who composed the entity which the law does not recognize. In taking this view the learned Judge did not follow an earlier decision of the same Court in the case reported in I L R 17 Bom.

413. It may however be observed that though the learned Judge held that the suit was brought by an entity which had no legal existence, he eventually allowed the amendment sought by the plaintiff on payment of costs. There is ample authority for the proposition which in fact was conceded by Mr. Sharifuddin that where there is a misdescription of a plaintiff or a defendant in the title of a suit there is complete power in the Court to make the necessary correction without regard to the lapse of time. It was, however, contended that this was not a case of a new plaintiff. This aspect of the question was not considered in the Bombay case relied upon by the learned counsel. Indeed this judgment was criticized in a later Bench decision of the same Court reported in A I R 1933 Bom. 304.

9. In the case before us the suit was instituted in that name of the firm Messrs Russel and Ramsden. Later on it was realised having regard to the limitation contained in Order XXX, rule 1 that this description was not correct. The plaintiffs, therefore, applied to bring the name of the partners as the plaintiffs instead of the firm. We cannot agree that these amount to substitution of new partners, nor can we agree that the suit was by a non‑existent entity. A firm, it is true, is not a legal person but partners are allowed by procedural law to use the name of the firm for the purposes of a suit. The name of the firm, therefore, is nothing but a short description of those who constitute the firm. If, however, such a facility is not permitted in the case of a firm not doing business in Pakistan it does not follow that the suit was by a non‑existent person. When the partners instituted this suit they described themselves by the name of the firm. This description, however effective for the purposes of business, was not effective for being used as a name in a suit. Such a facility is permitted only in the case of persons carrying on business in Pakistan. Therefore, for the purposes of the procedure the description given by the partners to the case was not an effective description. There can, however, be no doubt that by using the name of the firm they were attempting to describe the partners. These partners were not non‑existent. They were very much in existence and later on figured as plaintiffs. The inference is irresistible that the description was given of the plaintiffs which was not effective having regard to the limitation contained in Order XXX, rule 1, C. P. C. This was, therefore a case of misdescription and not of substitution of new plaintiffs. The suit even in the first instance though brought in the name of the firm was still a suit by the partners who eventually were brought on record as plaintiffs. Since they were not properly described the Court allowed the amendment to enable the plaintiffs to describe them properly. There can, therefore, be no question of the application of section 22 of the Limitation Act and the suit must be deemed to have been instituted in the name of the plaintiffs from the date of the presentation of the first plaint. With great respect we do not agree with the view taken by Blackwell, J. that the amendment in such a case would amount to substitution of new plaintiffs.

10. On the second point regarding the question of breach of contract the contention of Mr. Sharifuddin was that it were the plaintiffs who committed the breach in the first instance in so far as‑(a) they did not submit the wool of the consignment received by them for test within the stipulated time, (b) they did not communicate the result of the test to the plaintiffs within time, and (c) they sent only 3% of the goods for test and not 5% as they should have these premises it was urged that in respect of two lots bales received by the plaintiffs they would have been liable to pay to the defendants in respect of the excess yield which would have resulted if the test had been properly carried out and since the plaintiffs did not pay on account of the excess yield with regard to the consignment received by them, the defendants were absolved of their obligation to deliver the remaining two lots of 100 bales each. It was urged that this was a case of reciprocal premises within the meaning of section 55 of the Contract Act and when the plaintiffs failed to pay for the excess yield the defendants were entitled to avoid the contract. Before we deal with this point we must salt that this was not the case set up by the defendants in their written statement. It would be useful to reproduce paras. 4 and 7 of the written statement of the defendants to show that it was not their case that by reason of the alleged default of the plaintiffs in paying for the alleged excess of yield, the defendants had avoided the performance of the rest of the contracts "

4. Para. 4 of the plaint is emphatically denied. The defendants did not neglect and/or fail to give delivery. The defendants had shipped 100 bales out of the first 200 bales out of the contract of 600 bales and the plaintiffs raised a dispute as to the yield of the shipment made to them and without testing the goods in accordance with the usage of trade sold away the same. The defendants insisted on a test of 5% being made in accordance with the usage of trade but the plaintiffs failed to comply with the demand of the defendants and without retaining 5% of the goods for the purpose of retest sold away the entire consign ment. The defendants had claimed that the yield was 85% according to the test performed by the defendants at Karachi and had duly informed the plaintiffs in advance of this fact. The plaintiffs had accordingly to remit to the defendants, on the basis of the difference of the yield contracted for and the yield of the wool shipped by the defendants, 10% of the contractual value of the goods. The plaintiffs failed to do so in spite of repeated demands and committed breach of the terms of the contract. Moreover, the plaintiffs failed to test the goods within 18 days of the arrival of the goods and to inform the defendants of the yield within the period allowed (namely 72 hours) by the usage of trade and thus committed breach of the terms of the contract. "

7. That the defendants had already shipped to the plaintiffs in accordance with the terms of the contract 400 bales before the defendants were apprised of the false dispute as to yield by the plaintiffs and the defendants came to know of this false dispute raised by the plaintiffs in the second week of March 1950 a few days before the expiry of the letter of credit. The defendants waited for the dispute as to the first lot of 100 bales being settled and the plaintiffs delaying in settling the said dispute and by that time the period of the letters of credit had expired and the plaintiffs did not extend the period of the letters of credit to enable the defendants to ship the 200 bales in suit which they should have done." 10 (sic). The question whether it was the usage of the trade that 5% and not 3 % of the goods had to be submitted for test for the purpose of ascertaining the percentage of the yield and whether there was delay on the part of the plaintiffs in sending the goods for test or in getting the test completed and in com municating the result thereof to the defendants has been dealt with by the learned trial Judge under issues 3, 4 and

5. The learned Judge after referring to the correspondence and the oral evidence on record found against the defendants on the point of the alleged delay. In fact, Mr. Sharifuddin himself stated before us that he was not pressing the question of time though he was not formally abandoning that point. On the point whether it was the usage of the trade that 5% and not 3% of the goods delivered should have been sent for test, the learned Judge held as follows "It is not, therefore, possible to hold on issue No. 4 that the usage of trade in Scotland was that 5% of the goods should be retained for test." We find no good reason for disagreeing with these findings. But even if it was held that the plaintiffs should have sent 5% of the goods for test and not 3% as they did or that they did not send the goods for test and get the result quickly and communicate it to the defendant as soon as they should have, we are of the opinion, that this would not have advanced the case of the defendants.

11. The contract in question was for the supply of 400 bales of raw wool in four separate lots of 100 bales each. The price, the percentage of guaranteed yield and the period of shipment were different in each of the four lots which were of 100 bales each. The particulars of the two lots which were not delivered have been stated in the opening part of this judgment and would illustrate the point of difference. The contracted goods had to be delivered in four instalments of 100 bales each on the terms stated in respect of each lot. Section 38 of the Sale of Goods Act was clearly applicable to this case. It reads as follows "38. (1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. (2) Where there is a contract for the sale of goods to be delivered by stated instalments which are to be separately paid for, and the seller makes no delivery or defective delivery in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalment it is a question in each case depending on the case, whether the breach of contract is a repudiation of the whole contract, or whether it is severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated." In the present case there was no question of refusal to pay for one or more instalments. The payments of all the four lots had been guaranteed by letters of credit in respect of each lot. The claim of the defendants that they had supplied goods of which the yield would be more than the contract yield and this would entitle them to certain credits upon the basis of the difference., in the percentage of the yield contracted for and the yield which the defendants alleged in the first instance was not established and even if it was established we are clearly of the view that this did not entitle the defendants from refusing to deliver the remaining two lots. In fact, this was not the case of the defendants. Their grievance was that the plaintiffs did not extend further the letters of credit to enable them to deliver the goods. We shall deal with this part of the case a little later. For the present let us revert to section 38 of the Sale of Goods Act. According to it even when the buyer refuses to take delivery or pay for one or more instalments it has still to be determined on the facts of the case whether this breach is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated. This section is based on section 31 of the English Act. It was held in some old cases that where a contract provided for delivery in instalments the refusal by the buyer to accept or pay for the particular instalment was a breach which went to the root of the contract. A contrary view was taken in other cases which have been referred to by the learned trial Judge. The latter view was followed in some of the Indian Courts, e.g. (1) I L R 4 Cal. 252, (2) I L R 9 Mad. 359, and (3) I L R 18 Mad.

63. However, having regard to the plain words of section 38 of the Sale of Goods Act the question whether the breach is sever able or must go to the root of the whole contract must be determined with regard to the facts of each case. In the present case, it must be remembered that the payment was provided C for each lot separately. The price and even the quality of the goods of each lot were different. The payment of the price had been guaranteed by the letters of credit which were admittedly opened in this case. How could then the defendants refuse to deliver the remaining two lots of 100 bales upon a claim such as was made in this case which has been referred to above ? The plaintiffs on the other hand were seriously complaining that the goods delivered were such which did not even produce the yield which was contracted for and yet they were not only prepared to take delivery of the remaining two lots but were frantically begging for it and even extended time for delivery for as much as four months in the case of one lot and three months in the case of the other. Some of the documents which would show that the plaintiffs were pressing for the delivery of the goods are Exh 14 dated 6‑12‑49, Exh. 49 a cable of the same date, Exh. 16 dated 10‑12‑49, Exh. 50 dated 21‑12‑49 being a cable intimating the extension of credit, Exh. 17 dated 23‑12‑49 requesting expediting of shipment in all existing contracts immediately and Exh. 28 dated 15‑2‑50 requesting the defendants to ship the said 200 bales urgently and a cable of the same date to the same effect. In Exh. 89 which is a letter from the plaintiffs to the defendants dated 7‑3‑50 they have expressed their serious predicament with regard to their customers caused by the non‑delivery of the 200 bales in question and they added‑ "In view of this extremely awkward position we are pre pared to pay you on an 80% yield basis the consequent loss being entirely borne by us, in order to clear up this unfortunate incident, and we feel sure you cannot but agree to this very fair and reasonable proposition. Immediately on arrival of the 200 bales outstanding we will make immediate arrangements with our Bankers to send settlement in full on an 80% yield basis. Future relationship.‑We would strongly advise you to consider the whole matter very seriously and accept our proposal. Credits.‑We have extended our credits to 31st March but if you require a further 15 days for document purposes, we will make the necessary arrangements with our Bankers, on hearing from you." On 28th March 1950, Exh. 38, the plaintiffs sent a cable asking for a reply but to these and further letters the defendants sent no reply and took no action to fulfil their obligation as to the delivery of the remaining 200 bales. We, therefore, agree with the learned trial Judge that the breach was on the part of the defendants and not on the part of the plaintiffs. We accordingly overrule the second point raised by the learned counsel for the respondents.

12. We will now deal with the third and the fourth points raised by the learned counsel for the respondents, namely that no cause of action arose on 31st March 1950 and in the alternative the date of breach would be the date when the defendants repudiated the contract. The argument of the learned counsel was that in so far as the date of delivery had been extended from what was agreed upon in the contract no dead line could have been fixed on 31st March 1950 and the plaintiffs should have further extended time for delivery and made the necessary extension in the letters of credit. In the alternative it was urged that it had not been established that this extension up to 31st March 1950 was with the consent of the defendants and therefore the breach would have been on 28th February 1950, and not on 31st of March. The emphasis on 31st March 1950, is because the damages have been claimed on the basis of the market price prevailing on or about that date.

13. According to the contract the shipment was to be up to 30th November 1949, in respect of one lot of 100 bales and in respect of the other lot during December 1949. The defendants had asked for extension of the letters of credit and the plaintiffs who were anxious to get the goods had willingly done so. This position was admitted in the pleadings. In para. 2 of the plaint the plaintiffs alleged that "the letters of credit were extended from time to time at the request of the defendants and finally were extended till 31st March 1950". In their reply this is what the defendants said in para. 3 of their written statement :‑ With regard to the para. No. 3 of the plaint it is submitted that the letters of credit were extended from time to time to suit the convenience of the parties. From this it must follow that the extension of the letters of credit up to 31st March 1950, was with the consent of the defendants. It is, therefore, not open to the defendants to raise a contention to the contrary on this point. The letter of the plaintiffs Exh. 19 dated 13‑1‑50 would show that the credits were extended till the end of February and then by another letter, Exh. 89, the plaintiffs informed the defendants that the credits were extended up to 31st March 1950, but if the defendants required they would be prepared to extend it by a further 15 days. In this letter as has been shown above, the plaintiffs had also shown their willingness to pay to the defendants on the basis of 80% yield though it was said that this would involve them in loss vis‑a‑vis their buyers. A cable was then sent by the plaintiffs on 28‑3‑50, Exh. 38, asking for the reply but there was no response from the defendants. They cannot, therefore complain about the lack of further extension of credits by the plaintiffs. As for the contention that the breach should be deemed to have taken place on the date of the repudiation by the defendants the short answer is that it was neither the case of the defendant in the written statement that they had repudiated their obligation to perform the contract, nor has any repudiation been established from the records. In fact, the two stands, namely that there was repudiation of the contract by the defendants and that the plaintiffs should have further extended the credits are contradictory. It may also be pointed out that there is authority for the proposition that an agreement to postpone performance for an unspecified time operates as an extension for a reasonable time and consequently the date to be taken must then be a date at which there appears to be a failure or refusal to perform. There can be no doubt that in the present case there was an agreement to postpone performance. It was under this agreement that extension of credits was made up to 31st March 1950. This would be a reasonable time even otherwise and as we have pointed out this position was admitted in the written statement. We, therefore, hold that 31st March 1950, was rightly fixed as the date of breach for the purposes of ascertaining the damages. The third and fourth points raised on behalf of the respondents are, therefore, also overruled.

14. We then come to the last question, that is with regard to the question of damages. It was the contention of Mr. Faalur Rahman that the evidence of Mr. Blair taken on commission on the question of market price had not been challenged by the defendants in cross‑examination. Mr. Blair had said that the market price on or about the 31st March 1950, of the wool with the guaranteed yield of 75% for C & F shipment to Glasgow or Liverpool was about 48d. per lb. This was with regard to the first lot of 100 bales. With regard to the second lot he stated that the market price of guaranteed 80%. yield of the same goods at the same time was 51 pence per lb, The learned trial Judge on this point has observed as follows :‑ This proof of the market price is clearly inadequate. The counsel of the plaintiffs has contended that the witness has not been cross‑examined on this part of his statement and therefore he should be believed. I do not disbelieve him but find that he has not proved the market price. His statement regarding the price of wool with guaranteed 75 per cent. yield is merely his own opinion. However, there is further material now with regard to the market price which was furnished by the additional evidence recorded in appeal. This is contained in the evidence of Moosa Desai, the additional witness No.

2. He stated that he was in wool trade since 1948 and he was employed with Messr Kaishojee Yousuf and Walker Ltd., whose business was in wool. He produced the contract book of the said firm for the yea 1950. This is a bound register and we are satisfied that it was maintained, in the ordinary course of business. It contains the record of numerous contracts in respect of exports of wool from Karachi to countries abroad. The entries in this register E commence from 27th October 1949 and end with 28th February, 1952. The four contracts referred to by him in his evidence are contained in the entries Exh. 5/1 to Exh. 5/4. With reference to the entry Exh. 5/1 which is dated 21‑3‑50 the witness stated that on that date wool of No. 27 was sold at 55 pence per lb. C & F. This entry shows that the place of destination of these goods was Glasgow and these 50 bales were dispatched per s. s. Cilicia. The next entry, Exh. 5/2, referred to by this witness proves the sale of 400 bales of No. 31 at 54d. per lb. and it was despatched per s. s. Cireassia. The date of the contract is 25th March 1950 and the place of destination is Liverpool. The third contract is dated 30th March 1950, Exh. 5/3. This is in respect of 27 bales of No. 27 at 54d. per lb., the destination being glasgow and despatched per s. s. Cilicia. The fourth entry referred to by this witness, Exh. 5/4, is of a contract dated 21‑4‑50 in respect of 300 bales of No. 31 at 52d. per lb., the destination being Glasgow. The goods were despatched in two lots per s. s. Cilicia and s. s. Tarantia. All these entries also contain the invoice number of these goods and the details of their despatch. We have preferred to refer to the entries themselves because there is some error of dates in the evidence given by this witness. He has, however, deposed with reference to Exh. 5/1 to Exh. 5/4.

15. Mr. Sharifuddin challenged this evidence mainly upon two grounds ; firstly that these entries did not show the quality of the goods showing the percentage of the yield and the wool sold bore the number of this particular firm. It was next pointed out that this witness himself admitted that the type of wool of other firms was different from the wool of the firm to which this witness belonged and this would also affect the rates. This criticism is good as far as it goes but this evidence and the evidence of Mr. Blair has to be read with other circumstances in this case, the most important amongst them being the admission of the defendants themselves in several letters written at the material time that the price of the contracted goods had scared very high and that in fulfilling the contract with regard to the other 200 bales the defendants had put themselves to considerable financial loss. In fact the defendants were clamouring in their letters for fresh orders from the plaintiffs on the rates prevailing at that time, so as to compensate them for the heavy loss which they had suffered on the 200 bales supplied and which they would further suffer on the remaining 200 bales which is the subject‑matter of the suit and which eventually remained undelivered. Reference may be made to Exh. 53 dated 30th January 1950 and Exh. 54 dated 17‑2‑

50. It has further to be noted that though it was for the plaintiffs to prove the damages upon the basis of the contracted and the market price at the time of the breach yet we cannot completely ignore the fact that the defendant took no steps to controvert the evidence showing that the market rate on the date of the breach was as stated by Mr. Blair or as deposed to by Moosa Desai. It would have been open to him to lead evidence after the additional evidence of Moosa Desai had been recorded by the Bench but he made no such attempt. The defendants' only witness Mr. Riaz Hussain, who is the son of the managing partner of the defendant‑firm, gave evidence in this case but he has not said a word about the plaintiff's allegation about the market price on the date of breach and at which rate they had claimed damages in the plaint. It is true that the evidence of Moosa Desai with reference to Exh. 5/1 to Exh. 5/4 does not definitely establish that the quality of the wool referred to in the four contracts was exactly the same as were contracted to be sold by the defendants in this case. Moosa Desai, however, has stated that the wool was of 75 YO yield medium, vicanera yellow wool. This witness was not asked whether the wool bearing certain numbers of the firm which was the subject matter of these four contracts would be superior to the wool which was contracted to be sold in this case. However, even if there was some margin it must be noted that the market price with regard to the first lot of 100 bales with reference to which damages are claimed has been stated in the plaint at 471d. per lb. and with regard to the second lot at 50d. per lb. This is lower than the rates mentioned in the four contracts, Exh. 5/1 to Exh. 5/4. Taking all the circumstances into consideration we are of the opinion that the market price as claimed in the plaint on the date of breach has been established by the plaintiffs. The damages in this case have been claimed on the basis of the difference between the contract price and the market price and P this satisfies the rule contained in section 73 of the Contract Act.

16. We, therefore, find that the plaintiffs have established their total claim of damages amounting to .433‑6‑8d. This converted into Pakistani rupee at the exchange rate prevailing on the date of the breach i.e., 31st March 1950, would amount to Rs. 40,039‑6‑

4. This is in fact what was claimed by the plaintiffs themselves in their fist plaint. Their claim in the amended plaint at the higher rate of exchange cannot be sustained because these have to be determined with reference to the rate prevailing on the date of the breach. This point in fact was conceded by Mr. Fazlur Rahman, the learned counsel for the; appellants.

17. In view of our findings we allow this appeal and we decree the plaintiff's claim for Rs. 40,039‑6‑4 with proportionate cost and interest at 3% from the date of suit till realisation. A. H. Appeal allowed.