P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.

This is a first appeal from the judgment of Mr. Abdul Kadir

1. Kazi, First Class Sub-Judge, Nawabshah, in Suit No. 29 of 1952, dated 24th of June 1953, awarding the respondent a decree of Rs. 20,350 with interest. Briefly, the facts giving rise to this appeal are that on 8th October 1951, by two contracts (Exhs. 35 and 36) M. S. Balagamwala Cotton Ginning and Pressing Factory at Karachi, the appellants, agreed to sell 4,000 maunds of cotton seeds N. T. Roller of 1951-52 to Messrs Lalchand Nerumal, the respondent. Under the first contract (Exh. 35) 2,000 maunds of cotton seeds N. T. Roller of 1951-52 were to be supplied at Rs. 5/4 per maund including Sales Tax, Tando Adam Station Bilty-Cut, October Waida, 1951, Seller's option. Under the second contract of even date the appellants sold a further quantity of 2,000 maunds at Rs. 5/2 per maund including Sales Tax, Tando Adam Station Bilty-Cut, November Waida, 1951, Seller's option. Under both the contracts, the respondent had to pay arenas eight per maund as earnest money and the balance of the price was to be paid at Karachi on the endorsement or against R/R. The respondent also undertook to provide the empty gunny bags to the appellants their factory at Tando Adam on their demand at his own cost. These two contracts were how ever not carried into effect and the goods in dispute were not supplied to the respondent. On the 24th of December 1951, the appellant by letter (Exh. 40) informed the respondent that it had not been possible for them to obtain railway wagons inspite of their best efforts and therefore could not fulfil the terms of the contracts entered into with the respondent and offered to return the earnest money of Rs. 2,000 paid by the respondent to them. The respondent, however, rep lied that the appellants have committed breach of the contract and they are bound by its terms and ought to supply the goods in terms of the contract. The appellants did not accept this position and eventually the respondent on the 15th of January 1952, filed a suit in the Court of the First Class Sub- Judge, Nawabshah, against the appellants for the recovery of Rs. 5,000 and Rs. 5,250 as damages on the first contract and, second contract respectively, Rs. 9,000 as value of Bardana of 4,000 gunny bags supplied to the appellants, Rs. 2,000 for the refund of earnest money and Rs. 250 as incidental charges. The learned First Class Sub-Judge, after considering the oral and documentary evidence of the parties, found on all the points in favour of the respondent and decreed the suit in the sum of Rs. 20,

350. The learned Subordinate Judge, however, allowed Rs. 8,600 only instead of Rs. 9,000 in respect of the value of the gunny bags supplied to the appellants. The appellants resisted the suit inter alia on the ground that the Nawabshah Courts had no jurisdiction to entertain the suit, that the respondent committed breach of the contracts, that due to the non-availability of railway wagons the contract was frustrated, that the respondent's claim for gunny bags was unjustified as they are prepared to return them and lastly, that even if they are found to have committed breach of the contract the damages can only be awarded at the market rate prevalent on 31-10-1951 and 30-11-1951 and not those prevalent in January 1952. The learned Subordinate Judge's findings on the material points at issue between the parties are (1) that Nawab shah Courts have jurisdiction to entertain the suit; (2) that the delivery of the goods was to be made at Tando Adam Railway Station; (3) that the appellants committed breach of the con tract; (4) that the appellants by their conduct have extended the time for the performance of the contract; (5) that the contract was not frustrated on account of the non-availability of the railway wagons ; and (6) that the appellants are liable to pay damages at the market rates of the goods in dispute prevalent in January 1952. The learned counsel for the parties have taken us through the entire record in this case. The respondent in support of his claim examined six witnesses viz, P. W. 1, Lalchand, the proprietor of the respondent firm; P. W. 2 Khubchand, the Manager; P. W. 3 Muhammad Sarwar, an employee of Messrs Leghari Francis & Co. at Multan; P. W. 4 Daud; P. W. 5 Atta Muhammad, a nephew of Lalchand and P. W. 6 Ibrahim, a representative of Messrs Karachi Steam Ruller Flour Mills. The appellant on the other hand have examined seven witnesses viz, D. W. 1 Abdul Sattar, merchant of Nawabshah; D. W. 2 Daud; D. W. 3 Umar Khan, Station Master; D. W. 4 Muhammad Ahmad, Secretary, Merchants' Association, Nawab shah; D. W. 5 Taiybhai, another merchant; D. W. 6 Haji Yusuf and Abdul Sattar, one of the partners of the appellants. Besides oral evidence, the parties have also relied in support of their contention on the documentary evidence produced by them on the record. Mr. Abdul Ghani, the learned counsel for the appellants very rightly did not canvass before us the question of the jurisdiction of the Nawabshah civil Courts in respect of the matter in dispute. He also conceded that there was no dispute between the parties about the refund of Rs. 2,000 paid by the respon dent as earnest money and referred us to the appellants' notice dated 24-12-1951 (Exh. 41) to show that his clients offered this amount as far back as December 1951 and the respondent refused to accept it. The learned counsel for the appellants confined his attack on the judgment of the trial Court on the grounds (1) that the appellants did not commit breach of the contract; (2) that the time for performance of the contract was not extended; (3) that the contract in any case was frustrated on account of the non-availability of the Railway wagons; (4) that the learned Subordinate Court was not justified in awarding damages at the market rates prevalent in December 1951 or January 1952; (5) that the claim of the respondent in respect of gunny bags was wrongly allowed and (6) that the claim for incidental charges was also not rightly allowed. We will discuss these questions at their appropriate place. We will first consider the dispute between the parties on the terms of the contract agreed upon between them on 8-10-1951. The learned counsel for both the parties admitted that the terms of the contract are to be spelled from the contents of the two con tracts Exh. 35 and Exh.

36. The contents of these two documents clearly show that the appellants bound themselves to sell to the respondent under the two contracts 2,000 maunds of cotton seeds N. T. Roller each, 1951-52 at the rate of Rs. 5-4-0 and Rs. 5-2-0 respectively for October and November Waida at the option of the sellers. One of the most important terms of the contract is that the respondent who was the buyer was to supply empty gunny bags on the demand of the appellants and there after the appellants were to fill the cotton seeds in the gunny bags for loading them to the railway wagons and after obtaining the R./R. were to deliver the R./Rs. at Karachi on payment of the balance of the price of the goods agreed to be supplied to the respondent. According to the terms of the aforesaid contract the respondent's responsibility was two-fold. Firstly, that they shall pay the earnest money to the appellants at the rate of 0-8-0 per maund and supply the gunny bags for packing the goods in dispute on the demand of the appellants. On the other hand, the appellants undertook to supply 2,000 maunds of cotton seeds N. T. Roller (1951-52) Tando Adam Station Bilty-Cut in the month of October 1951 at their option and the other lot of 2,000 maunds of cotton seeds in the month of November 1951 at their option on the same terms, and receive the balance of the sale price at Karachi against R./R. They also undertook to book the goods by Railway to their destination. It is admitted that the two contracts are in the nature of F. O. R. contract. Now as far as the first contract is concerned it is not disputed by the parties that the respondent paid Rs. 1,000 as earnest money immediately on the execution of the contract to the appellants. It is also not disputed that the respondent supplied the necessary gunny bags for the performance of this contract on 12-10-1951 Within four days of entering the contract. In these circumstances there was nothing else to be done by the respondent and he had fulfilled his part of the contract. It is therefore to be seen whether the appellants in terms of the contract performed their part of the contract or not. The evidence on the record shows that although the respondent supplied the empty gunny bags for the first contract on 12th October 1951, the appellants did not fill the bags and load them on the railway wagons for despatch to their destination. The case of the appellants is that as there was shortage of railway wagons it became impossible for them to perform the contract and they were absolved from performing their part of the contract. Mr. Abdul Ghani, the learned counsel for the appellants, strenuously argued that the implied term of the contract was the continued availability of the railway wagons for despatch of goods to Karachi and as sufficient railway wagons were not available in the month of October the appellants under section 56 of the Contract Act were discharged from the obligation to perform it. The learned counsel referred us to the evidence on the record to show that only 33 wagons were supplied to the appellants during the month of October and as the appellants' demand was much more they were unable to meet their commitment with the respondent. He further argued that the securing of the railway wagons was not within the appellants' power and control and the breach if at all was on account of unforeseen supervening circumstances. In support of his contention, the learned counsel has referred us to Kunjilal Mohohar Das v. Durga Prasad Debi Prosad (A I R 1920 Cal. 1021). Sannidhi Gundayya v. Illoori Subbaya and another (A I R 1927 Mad. 89), Ram Kumar v. P. C. Roy & Co. (India) Ltd. (A I R 1952 Cal. 335) and Shree Kishen and another v. Gambhirmal (A I R 1955 Hyd. 233). Two principles emerge from these decisions. One, that a man who promises without qualification is bound by the terms of his promise and must have weighed and accepted the risk of his not being able to carry out the contract, and another, where parties enter into a contract upon a common postulate the contract will be implied ly conditional upon that common assumption holding good and will not be enforced by the Court so as to throw upon one of the parties a risk which neither of the parties intended that he should bear. But none of these decisions help the appellants and on facts are clearly distinguishable. In the instant case neither the parties entered into a contract with full knowledge of the restrictions imposed by Government as regards affreight ment of goods by rail on the assumption that by the time of the performance of the agreement normal state of affairs would return nor subsequent to the contract. Government imposed prohibition on the booking of the goods to a particular place. As laid down by their Lordships of the Privy Council in Twentsche Overseas Trading Co. Ltd. v. Uganda Sugar Factory Ltd. (A I R 1945 P C 144) the question whether frustration of the contract occurs or not depends on the nature of the contract and on the events which have occurred. It therefore appears to us that in each case the question for consideration will arise what was the common intention and a common purpose for entering into a) contract and whether that purpose and intention has been frustrated by supervening circumstances and it is not permissible for a Court of law to imply a term which is not consistent with the express terms of the contract merely on the ground that parties being reasonable men must be deemed to have provided for a particular event. It is not the case of the appellants that at the time when they entered into a contract there were any restrictions placed on the movement of the goods from one place to another; nor is it the case of the appellants that subsequently any restrictions were placed by the Government on the movement of the goods from Tando Adam to other stations. The simple forward by the learned counsel for the appellants is that at the time when the contract was entered into the goods sent from Tando Adam to outside stations in the priority list introduced by the railway respect of the various commodities. Thus there was no restriction placed either when the contract was entered into or at the time when the contract was to be performed on the movement of goods. The appellants fully knew the difficul ties in getting the wagons for cotton seeds which were down below on the priority list and therefore when they entered into various contracts they should have known whether they would be able to obtain the necessary wagons for the supply of the goods of the contract in question, and in case of doubt should have provided in the terms of the contract that the contract is entered into subject to the availability of railway wagons. On the terms of the contract the appellants were to procure wagons and there is nothing in the contract that the supply of the goods in dispute was dependent on the availability of the railway wagons. In our opinion the doctrine of frustration recognised in section 56 of the Contract Act has no application in the present case. The evidence of D. W. 3 Umar Khan, Station Master, shows that during the month of October 1951 the appellants obtained four wagons for Sukkur and 29 for Karachi. This witness categorically stated: "We cannot say wagons were not available due to running of higher priority. The cotton seed comes under Class V viz., lower priority. Cotton was Class I priority. Cotton seeds were last class priority. According to priority registration we were allotting the wagons." It is thus clear from the statement of this witness that no restric tion was placed by Government on the movement of the goods. Certain priority list was in vogue at the time when the parties entered into a contract and continued to remain in force during the time when the contract was to be performed. The appellants entered into the contract with full knowledge of these facts and if they were doubtful about the availability of the wagons it the relevant time, they should not have committed them selves to large number of other contracts with a view to avoid the contingency of breach on account of the non-availability of the wagons. As the appellants failed to take necessary precau tions in this respect and committed themselves to a large number of contracts, it is not open to them to raise the plea of frustration of contract on account of the shortage of wagons or non-availability of them. In fact this is a clear case of self -imposed frustration. We therefore find no force in the plea that the contract became impossible for performance on account of unforeseen circumstances or for reason which were beyond the appellants' control. The next question in this connection for consideration is when did the breach of the first contract take place. The case of the appellants is that as the contract was of October Waida the breach took place on 31st October 1951. On the other hand, the case of the respondent is that by mutual consent or by the appellants' conduct, time for the performance of the contract was extended and breach took place in December 1951. Ordinarily in a contract for sale of goods the date of the breach of the contract is the date when the contract ought to have been fulfilled but was not and not the date of the refusal of liability or repudiation of the contract. Mr. Chandnani the learned counsel for the respondent very rightly in view of the decision of their Lordships of the Privy Counsel in A I R 1932 P C 196 conceded that in case the respondent fails to make out a case of extension of time for the performance of contract, the breach on the terms of the contract was committed on 31st October 1951. In these circumstances the burden was on the respondent to prove that the time for the performance of the contract extended till the month of December 1951. At this stage it will be worthy to note that the plea of the extension of the time for the performance of the contract was neither taken in the correspondence that was exchanged between the parties nor was taken as a ground in the plaint itself. Mr. Abdul Ghani, the learned counsel for the appellants, therefore argued that the learned Subordinate Judge was not justified without any specific allegation in the pleadings to make out a case for the respondent on this point during the trial of the suit and to decide this question without any issue. In reply Mr. Chandnani, the learned counsel for the respondent, referred us to a decision of the Indian Supreme Court in Kedar Lal Seal and another v. Hari Lal Seal (A I R 1952 S C 47) In that case it was held that "the Court will be slow to throw out a claim on the mere technicality of pleading when the substance of the thing is there and, no -prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs." This case is clearly distinguishable because in that case the simple question was whether a relief should be granted to a party in the absence of any prayer to that effect. On the other hand the question in this case is whether the learned sub ordinate Court was justified in deciding a case on a point which was not raised in the pleadings. It is now well settled that a plaintiff is bound by his pleading and cannot succeed on a case not set out in the plaint. In Lala Hem Chand v. Lala Pearey Lal and others (A I R 1942 P C 64) their Lordships of the privy Council charac terised as irregular the procedure of the trial Court in allowing evidence to be adduced on points not raised in the pleadings or issues and observed that this should not have been allowed without amendment of pleadings and issues. In this case if the respondent's case was that the time for performance was extended by mutual consent or conduct of the appellants, he should have alleged it ink the plaint. In our opinion, as the respondent did not raise any such plea in the pleadings, the learned Subordinate Judge was not right and justified in considering the claim for damages of the respondent from this angle, and erroneously awarded damages on the basis of the market price of such goods in the month of, December 1951. Assuming for the sake of argument that the respondent was entitled to agitate this question without making any allegation in the pleadings and without getting any issue raised on it, the evidence on the record does not at all advance his case. There is nothing in the evidence of Lalchand, Khubchand or Atta Muhammad who are the principal witnesses in the case to suggest that the appellants at any time agreed to the extension of the time for the performance of the contract. At best the evidence of Muhammad Sarwar and Khubchand shows that they approached the appellants in the month of November 1951 for the performance of the contract, who informed them that as they had used the Bardana supplied to them for other contracts they will perform their part of the contract after they received the Bardana from Karachi and the moment the wagons are available the goods will be loaded on the railway wagons. But this talk, apart from the fact that it took place in the month of November when one of the contract was still subsisting, is of interested persons. Lalchand is the proprietor of the respondent firm, Khubchand is the manager and Atta Muhammad is Lalchand's nephew. P. W. 7 Abdul Sattar, a partner of the appellants' firm categorically denied this allegation on oath and in such circumstances we are not prepared to attach any importance to the statement of the respondent witnesses on this point, particularly as it was not raised in the correspondence exchanged between the parties and was also not alleged in the plaint. P. W. Muhammad Sarwar admittedly is a representative of Messrs Leghari Francis & Co., Multan, for whose benefit the contract in dispute was obtained and is interested in supporting the respondent's case. The mere fact that certain goods were found lying at the railway station in the gunny bags bearing messrs Sadiq Ali & Co. mark does not show that the appellants were waiting for the wagons to fulfil the contract in dispute, because they had also directly committed themselves to supply the goods to the aforesaid firm. In these circumstances we are not prepared to place any reliance on this witness's statement that the appellants had kept the contract alive and were ready to perform it in the months of November and December 1951. The finding of the learned Subordinate Judge that the appellants by their conduct extended the time for the performance of the contract is based on wholly insufficient evidence and cannot be upheld by us. We will therefore hold that the respondent failed to prove satisfactorily his allegation that the time for the performance of the contract was extended till December 1951. In view of the above finding the damages in the first contract can only be awarded on the market price of the goods prevalent D in October 1951. The respondent did not produce any evidence on this point. The market rate produced by them on the record is of December 1.951 and January 1952, which are irrelevant for determining the damages in this case. Fortunately' for the respondent the appellants have produced some rates of the market price prevalent in October 1951. D. W. Muhammad Ahmed (Exh. No. 157) Secretary, Merchants' Association, Nawabsbah, gave the rate of N. T. Roller (Popta) on 31st October 1951 as Rs. 6 per maund. D. W. Abdul Sattar (Exh. No. 160), a partner of appellant in his examination-in-chief admitted the rates of cotton seed on 31-10-51 F. O. R. up-country as Rs.

6. In the absence of any proof we considered this evidence as best for determining the; damages and hold that on 31-10-51 the market rate of the goods in dispute was Rs. 6 per maund. Accordingly we well award the respondent damages for the breach of the first contract on the difference between the contract rate, viz. Rs. 5-4-0 and market price Rs. 6 per maund. We will therefore hold that the respondent is only entitled to claim damages in the sum of Rs. 1,500 (Fifteen hundred) on the first contract. Coming now to the second contract, it is an admitted position that the appellants called upon the respondent to supply the gunny bags on the 6th of November 1951 and they despatched them from Nawabshah to Tando Adam through railway on 24th November 1951 which reached Tando Adam on 30th November 1951. Mr. Abdul Ghani contended that the respondent was guilty of the breach of the contract; as he supplied the Bardana too late and the appellants could not perform their part of the contract. He referred us to Cox v. Todd and others ((1825) IV K B 35) in support of his contention. In that case sellers agreed to deliver certain goods in April or sooner alongside the buyer's warehouse. A vessel arrived with the goods on the 28th of April and went into dock but it would have occupied four days to unload her; on these facts it was held that there had not been a delivery within the time stipulated and the vendee could not recover the price of the goods in the agreement. On the analogy of this case it is manifestly clear that the respondent did not supply the gunny bags for the second contract within reasonable time in order to enable the appellants to fulfil their part of the contract to supply the goods within the month of November 1951. It was conceded by Mr. Chandnani that on the terms of the second contract the contract was to be fulfilled by 30th November 1951, but he argued that in respect of this contract also the parties had by mutual consent or by the appellant's conduct, the time for the performance of the contract was extended till December 1951. We have already discussed the evidence on this point and find no force in this contention. In these circumstances the respon dent was guilty of breach of the contract in respect of the second contract and he is not entitled to claim any damages on it. We will therefore set aside the decree of the learned Sub-Judge in respect of the damages awarded to them for the second contract. This brings us to the last question: whether the respondent is entitled to claim any amount as price of 4,000 gunny bags supplied by him, the appellants in the months of October and November 1951. The evidence produced by the respondent show that these gunny bags were not purchased by him front the market, but were purchased to him by Messrs Sadiq Vegetable Oil Co., Multan. Both Lalchand and Khubchand admitted in their evidence that they were not aware at what price these gunny bags were purchased by Messrs Sadiq Vegetable Oil Co. or at what rate they were supplied to the respondent by them. The learned Subordinate Judge has accepted the claim of the respondent in this respect at the rate of Rs. 215 per hundred bags. The learned counsel for the appellants, however, contended that these bags are still with them and the respondent can take them back, but this contention appears to be an after-thought because at no time the appellants offered the gunny bags in question to the respondent. Even in their notice dated 24th of December 1951 they offered only to return the earnest money' and did not mention anything about the gunny bags. We also find much force in the argument of Mr. Chandnani that these bags might have been used by the appellants and therefore lost their utility. In these circumstances we fully agree with, the view of the learned Subordinate Court that the respondent is entitled to claim compensation for the gunny bags supplied by them to the appellants. However, Mr. Abdul Ghani challenged the finding of the trial Court about the market rate on the basis of which the respondent has been compensated. Both the parties have led evidence on the question of the market rate of the gunny bags in the months of October, November and December 1951 and January 1952. The appellant's counsel's contention that the respondent should be compensated at the rates prevalent in October and November 1951 is not well founded. It was the duty of the appellant to return the Bardana to the respondent immediately: after the breach of the contract. There could be some excuse for keeping it till the month of November 1951 but there was not justification to retain it beyond it. In our view the respondent was entitled to get the gunny bags in the first week of December 1951 and the market rate prevalent about that time ought to be the basis in awarding compensation to him on this account. It is an admitted position that the gunny bags in question were of the quality of first filling. According to the statement of P. W. 5 Atta Muhammad, the rate of Bardana B-12 between 31st December 1951 to 6th January 1952 mentioned in the issues of "Dawn" was Rs.

274. This evidence is, however, of no evidentiary value, because it is based on news item appearing in the newspaper "Dawn". The learned Sub-Judge admitted the issues of "Dawn" without any proof of the source on the basis of which these rates were given in these issues. It was rightly contended by Mr. Abdul Ghani that any news item appearing in a newspaper has no evidentiary value unless it is proved by primary evidence. In our opinion the learned Sub-Judge was not justified in relying on these documents without the proof F of the source or the basis on which these items appear in the said newspaper. We will therefore decline to take into con sideration the rate of gunny bags given in the issues of "Dawn" of December 1951 for awarding compensation to the respondent. The other evidence on this point consists of the statement of P. W. 6 Ibrahim (Exh. 102), representative of the Karachi Steam Roller Flour Mills, a firm which deals in old Bardana in Karachi. According to him the rate of first Bharti Bardana on 3-12-1951 was Rs. 200 per hundred bags. But this witness admitted that besides Karachi all the bigger towns like Nawabshah, Sukkur, Rawalpindi and other places have got their own markets. He also admitted that the rates of first Bharti gunny bags depend on local conditions. The respondent has not produced any evidence to show the market rate of first Bharti gunny bags in the first week of December 1951 in Nawabshah or Tando Adam. The appellants' witness D. W. 1 Abdul Sattar (Exh. 89) of Messrs Abba Umer Habib & Co. gave the rate of once used Bardana on 11-12-1951 at Rs. 140 per hundred gunny bags. D. W. 2 Daud gave the rate of old Bardana on 20-11-1951 as Rs.

155. According to him on 4-12-51 the rate of new Bardana was Rs.

250. The rate given by D. W. 6 Haji Yusuf (Exh. 159) only relates to October 1951 and is of no value in this case. On consideration of the evidence produced on the record it appears to us that the rates prevalent at Karachi cannot be taken as a criterion for determining the market rate prevalent in mofussil towns because the demand in Karachi is much more and there is sudden fluctuation of rates on account of demand. In the circumstances of this case we will fix Rs. 175 per hundred bags as the market price of the bags in Nawabshah in the first week of December 1951. The respondent is entitled to be compensated at this rate and on this account is entitled to Rs., 7,

000. We will accordingly reduce the amount awarded by the learned First Class Sub-Judge from Rs. 8,600 to Rs. 7,

000. The respondent also claimed Rs. 250 as incidental charges. There is no proof about the incidental charges incurred by him in this respect. He has not led any evidence on this point and the learned First Class Sub-Judge was not justified in awarding him any amount on this account. Accordingly we will disallow this item. During the course of the arguments a subsidiary question arose whether the goods in question were to be booked by railway to Karachi or some other station on the instructions of the respondent. The contract is silent on this point. There is also no direct evidence on behalf of the respondent to show that at any time he instructed the appellants to despatch these goods from Tando Adam to Rahimyarkhan. But the appellants' partner D. W. Abdul Sattar has categorically denied that any such instruction was given to them. He stated that the destination of the goods was Karachi and the payment of the balance of the price was to be made in Karachi on the endorsement of the R/R. P. W. Atta Muhammad also admitted in his statement: "We had to pay the price at Karachi. We were to pay the price against R/R at Karachi. The R/R always is issued to pay. The seller always endorses the R/R at the destination and only then we can get the delivery of the goods." It is clearly stated in the contract that the R/R was to be endorsed at Karachi on the payment of the balance of the price. In the light of the statement of P. W. Atta Muhammad the case on of the appellants that the goods were to be sent to Karachi is well-founded and the respondent's case that its destination was to be determined later on is unfounded. But this finding on the conclusion reached by us has no material bearing on the decision of this appeal. In the result the respondent is only entitled to (1) Rs. 2,000 as refund of earnest money, (2) Rs. 1,500 as damages on the first contract, (3) Rs. 7,000 as the value of the gunny bags. They are thus entitled to recover from the appellants a total sum of Rs. 10,500 (Rupees Ten thousand five hundred only) with interest. Accordingly the decree of the learned Sub-Judge is modified to this extent. For the reasons given above, the appeal is partly allowed with proportionate costs. The respondent will get costs in the trial Court on the amount awarded in the appeal. A. H. Order accordingly.