P L D 1962 (W (PLP)

KHAMISANI, J.‑The present appeal arises out of a suit filed for claiming damages to the tune of Rs. 21,185‑9‑Don 21st Septem ber 1950.

2. The facts which led to the filing of the suit briefly are that the defendants‑respondents contracted on 27th May 1949 to pur chase 5,000 maunds of cotton seed of new crop of 1949 at Rs. 6‑15‑0 per maund. The delivery was to be taken by them in the month of November 1949 at the option of the sellers. The buyers were to supply Bardana within a reasonable time before the due date of delivery. The payment for the supplies made was to be made against the Railway Receipts. The terms of this contract were accepted by a letter of confirmation sent by the plaintiffs‑appellants on 13th June 1949. The agreement giving terms of contract has been brought on record as Exh. 6 whereas the letter of confirmation sent by the appellants is Exh.

7. The appellants thereafter on 14th November 1949 are alleged to have sent a letter, Exh. 8, calling upon the defendants‑respondents to send Bardana as stipulated so that the goods contracted for; might be despatched. No reply to this letter is said to have been received. The plaintiffs‑appellants, therefore, are alleged to have sent another letter Exh. 9, dated 30th November 1949 under which they reiterated their demand for the sending of the Bardana. The admitted position is that the defendants‑respondents never sent Bardana up to 30th November 1949. They, however, entered into an agreement with Messrs Ali Muhammad and Latif Brothers on 20th December 1949 under which the defendants‑respondents agreed to sell the contracted goods to Ali Muhammad and Latif Brothers at the rate of Rs. 4‑15‑0 per maund. The agreement between the defendants-- respondents and Messrs Ali Muhammad and Latif Brothers has been exhibited as Exb.23. Consequent upon the agreement between the defendants‑respondents and Messrs Ali Muhammad and Latif Brothers, the defendants‑respondents addressed a letter, Exh. 10, to the plaintiffs‑appellants on 21st December 1949 stating that they had contracted the goods to be sold to Messrs Ali Muhammad and Latif Brothers who would send the gunny‑bags to them within a couple of days. The plaintiffs‑appellants on the receipt of this letter sent a reply to the defendants‑respondents, Exh. 11, on 27th December 1949 stating that they were not pre pared to honour the commitments made by them to Messrs Ali Muhammad and Latif Brothers and that they would not, therefore, supply the goods contracted for to them. Letter, Exh. 24, was also addressed on 15th January 1950 by Messrs Ali Muhammad and Latif Brothers to the defendants‑respondents telling them that 200 gunny‑bags had been despatched to the plaintiffs‑appellants between 22nd December 1949 and 12th January 1950. The plain tiffs‑appellants thereafter wrote letter, Exh. 12, dated 2nd February 1950 to the defendants‑respondents calling upon them to send gunny‑bags in order that the contracted goods may be sent to them. The defendants‑respondents did not send any reply to this letter. Consequently legal notice, Exh. 13, was sent through an advocate by the plaintiffs‑appellants to the defendants‑respondents on 21st February 1950. The defendants‑respondents sent a reply (Exh. 29) to this legal notice on 20th March 1950. The plaintiffs‑appellants are thereafter said to have brought their goods from Shahdadpur to Karachi and through an auctioner disposed them of on 3rd May 1950 at the rate of Rs. 5‑4‑6 per maund with gunny‑bags. The plaintiffs‑appellants thereafter filed a suit for recovery of damages on account of the difference in the contract price and the price of the goods sold in auction.

3. The defendants‑respondents resisted the suit on the main ground that the plaintiffs‑appellants were responsible for the breach of the contract. The lower Court framed the following issues:‑ (1) What was the term of the contract ? (2) Whether the defendants failed to take delivery of the seeds ? (3) Whether the plaintiffs refused to deliver the goods and if so, were they justified in it and with what effect ? (4) Whether the plaintiffs were ready and willing to perform their part of the contract ? (5) Whether the goods were validly auctioned ? (6) To what relief are the plaintiffs entitled ? (7) General.

4. On issue No. 1, the Court held that the terms of the contract were as embodied in letter dated 27th May 1949. On issues Nos. 2, 3 and 4, the Court held that the plaintiffs‑appellants refused to deliver goods for which they had no justification and that the defendants‑respondents were, therefore, not responsible for the breach of the contract. The Court did not give any findings on issues Nos. 5 and

6. The suit was, however, dismissed with costs.

5. The main question on which the present appeal is argued before us is the question relating to the responsibility regarding breach of contract. The learned counsel for the appellants assert ed that the respondents were responsible for the breach of the contract and were, therefore, liable for damages to the appellants. The burden of his argument throughout was that the goods con tracted for were to be despatched by the appellants at their option on the condition of the defendants‑respondents sending Bardana well in advance before the due date of delivery. The argument of the learned counsel was that the appellants had written two letters, Exhs. 8 and 9, on 14th and 30th November 1949 calling upon the defendants‑respondents to send Bardana so that the goods contracted for may be despatched to them. The argu ment of the learned counsel is that despite the fact that Bardana was not sent the appellants sent a letter even on 2nd February 1950 to the respondents for sending Bardana. Accord ing to him, the appellants were all along endeavouring to give opportunity to the respondents to take delivery but they had neither taken the delivery nor fulfilled their part of the contract in sending Bardana within a reasonable time from the date of delivery. The breach of the contract, therefore, according to him, was committed by the respondents and not by the appellants. The case put forward by the learned counsel for the appellants, there fore, was that the respondents were definitely liable to the appel lants for damages. The case of the learned counsel for the defendants‑respondents was that they had never received letters, Exhs. 8 and 9, calling upon them to despatch Bardana for the purpose of sending goods to them. The argument advanced was that under the terms of the contract the contracted goods were to be delivered to the respondents at the option of the appellants and it were, therefore, the appellants who were to fix the date of delivery so that Bardana could be sent to them. In the event of no date for delivery having been fixed by the appellants, the respondents were under no obligation to send Bardana to them. The breach, according to the learned counsel for the respondents, was on the part of the appellants and not on the part of the respondents. We have considered the arguments of both the counsel in this matter and we are of the view that there is no proof of the fact that letters, Exhs. 8 and 9, were not despatched by the appellants to the respondents for sending Bardana to them. Ors the other hand, there is clear proof of the fact that these two letters were written. If these two letters, Exhs. 8 and 9, had not been written there would be no justification for the respondents to enter into a fresh agreement for the goods contracted for to be contracted to be sold by the respondents to Messrs Ali Muhammad and Latif Brothers. The natural course of conduct on the part of the respondents would have been in the event of non‑receipt of Exhs. 8 and 9 to wriggle out of the contract and hold the appel lants responsible for the breach of contract and claim damages or at any rate have the contract rescinded. The prices of the contracted goods were obviously falling every day and no reason can be assigned why the respondents would take upon themselves the responsibility of honouring their obligation in taking the goods contracted for if letters, Exhs. 8 and 9, had not been received by them and they had not found themselves at fault for not sending the Bardana. Apart from that, the very fact that letter, Exh. 10, dated 21st December 1949 was written by the respondents to the appellants for giving delivery of goods to Messrs Ali Muhammad and Latif Brothers would indicate that the respondents were at fault and they were, therefore, anxious to avoid damages and shift a part of their liability on somebody else by way of selling the contract goods to them. Letter from Messrs Ali Muhammad and Latif Brothers, Exh. 24, dated 15th January 1950 also is proof of the fact that the breach of the contract was not on the part of the appellants. The evidence on record clearly establishes that the respondents were responsible for the breach of the contract.

6. The only question which has been the subject‑matter of a lengthy argument in this appeal is as to the date on which the alleged breach of contract occurred. According to the learned counsel for the appellants the date of breach started from the date of legal notice, Exh. 13, given by the appellants on 21st February 1950. He explains the delay from 21st February 1950 to 3rd May 1950, the date on which the goods were re‑sold by auction, by saying that the appellants waited for the reply from the respon dents till 20th March 19:0 when actually the reply was received. He also ,argues to say that from 20th March 1950 to 22nd April 1950, the appellants were busy in despatching the goods from Shabdadpur to Karachi as the market for the contracted goods at Karachi was better than at Shahdadpur. Pamphlets for the auction, according to him, were issued on 22nd April 1950 and an advertisement for the same was made on 28th April 1950 in "DAWN". This advertisement has been brought on record as Exh.

18. It is after this advertisement that the contracted goods were auctioned on 3rd May 1950. We have considered the case of the appellants and we are clear in our mind that the time taken by the appellants in having the goods auctioned at Karachi was unduly long and in contravention of the terms of the contract. The due date obviously on which these goods could have been auctioned as per the terms of the contract by the appellants was immediately after 30th November 1949. No explanation whatever has been offered as to why the appellants waited up to 21st December 1949 when the respondents had written to the appellants informing them that the goods had been sold by them to Messrs Ali Muhammad and Latif Brothers. Even if it be assumed that the time for the performance of the contract was extended by the implied consent of parties, it cannot be by any stretch of imagina tion said to have been extended beyond 27th December 1949 when the appellants had made it quite clear to the respondents that they would not be prepared to deliver the goods to Messrs Ali Muhammad and Latif Brothers. The time taken from 27th Decem ber 1949 to 3rd May 1950, according to us, is unjustified and absolutely unexplained.

7. The other fact which is material for the purpose of decid ing this appeal is that the goods were brought by the appellants from Shahdadpur to Karachi for disposal. There is nothing in the contract to give any authority to the appellants to transport the goods from Shahdadpur to Karachi and have them disposed of there on the consideration of there being a better market for them. The conduct of the appellants obviously appears to be that they were waiting for the respondents to take delivery of the goods despite the time for the performance of the contract having expired. They were probably finding excuses to have the time extended for the performance of the contract and to find justifica tion for re‑selling the goods and claiming damages. Letter dated 2nd February 1950, Exh. 12, written by the appellants to the respondents for sending gunny‑bags after their letter dated 27th December 1949 would be considered to be totally unjustified and would be conducive only to an ‑Inference that the appellants were finding excuses for disposing of the goods and entitling themselves to a claim for damages.

8. We are therefore, on the evidence on record, clear in our mind, that the respondents were responsible for the breach of the contract. We are also clear in our mind that the appellants have lost their claim for damages on the basis of re‑sale of the goods after a protracted period of several months after the stipulated time for the performance of the contract having expired.

9. When the learned counsel for the appellant was confront ed with the situation visualised above he became conscious of the position that his claim on the basis of re‑sale of the goods would not find justification he pressed into service an argument that the damages could be given to him on the basis of difference in the contract price of the goods and the market price of the goods at the time of the breach of the contract. We are unable to agree with the learned counsel even on this argument. The learned counsel in support of his argument relied on Narsinggirji Manu facturing Co. v. Budansaheb Abdulsaheb Kaji (A I R 1924 Bom. 390). The view taken in this case was: "Though vendor claims difference between the contract price and the price realised on re‑sale the Court can grant damages to which he is entitled under the law though the plaint is not amended." The view expressed in this case is not founded upon any reasoning. The learned Judges have merely said: "In the next place, the fact that the plaintiff claimed as the measure of damages the difference between the price, which he realised on the re‑sale of goods and the contract price, would, in my opinion, be no reason for the Court to refuse to award damages according to the correct measure. With all due respect to the Judges who decided Anguilla & Co. v. Sassoon & Co., (1912) 39 Cal. 568; it seems to us that it is going too far to hold that when a plaintiff has made a mistake in demanding damages on a wrong basis, the Court must refuse to set right the mistake by directing the damages to be calculated in the proper way unless the plaint is amended." We do not see our way to agree with the view expressed in this case. It will be going too far to permit the plaintiff to take prevari cating positions at the time of the suit and at the appellate stage. The case put forward by the appellants was on the basis of re‑sale of goods but to permit them to claim damages on the difference 6 in the contract price and the market price would be tantamount to allowing the claim of the appellants without offering the respondents any chance to defend themselves. Neither the case of the appellants was based on the basis of difference of contract price and the market price nor was any issue framed. One of the witnesses, Abdul Aziz P. W. 4, examined by the appellants inspite of the fact that there was no issue framed, gave evidence with regard to the market price of the goods prevailing at different times. The market price as deposed by him on 3rd May 1950 was Rs. 6‑1‑0 per maund without gunny‑bags but the goods are said to have been auctioned at Rs. 5‑4‑6 a maund with gunny- bags. This shows the motive of the appellants clearly as to the claim for damages preferred by them on the basis of re‑sale. The respondents were, however, well within their rights not to lead any evidence questioning the rates of the goods with reference to the market price on the due date of the breach of the contract. We, therefore, do not consider it fit to allow the claim of the appellants on the basis of difference in contract price and the market price of the goods. We find support of our view from Messrs Tikam Chand Bhag Chand v. Firm Kakhan Lal Din Dayal (A I R 1937 Lah. 842) in which it was held:‑ "Where in a case for damages for breach of contract a party claims damages on the basis of a re‑sale and fails to prove it, it cannot in appeal set up an alternative claim for damages on the basis of a market price." We therefore see no reason for awarding damages to the appellants on the basis of difference in the contract price and the market price of the goods.

10. The result is that the appellants are not entitled to any damages both on the basis of the re‑sale of the goods and on the basis of the market price. The appeal filed by the appellants is consequently dismissed with costs. K. B. A. Appeal dismissed.