Suit No. 702 of 1948. Case: India Red Lead Factories Co. Vs Pursottamdas Narsingdas. High Court of Calcutta (India)
| Case Number | Suit No. 702 of 1948 |
| Counsel | For Appellant: M. Hazra and M. Dhar, Advs. and For Respondents: S.S. Roy and S. Tibrewal, Advs. |
| Judges | A.N. Ray, J. |
| Issue | Sale of Goods Act, 1930 - Sections 36, 36(2) and 60; Civil Procedure Code (CPC) - Order 1, Rule 10 - Order 30, Rule 1; Limitation Act, 1908 - Section 22 |
| Citation | AIR 1960 Cal 327 |
| Judgement Date | September 15, 1959 |
| Court | High Court of Calcutta (India) |
Judgment:
A.N. Ray, J.
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This is a suit for the recovery of Rs. 29647/9/3 as damages and a sum of Rs. 4401/12/9 as the amount lying with the defendant out of the sum of Rs. 48000/- paid by the plaintiff to the defendant as and by way of payment in advance towards the price of 60 tons of pig lead.
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The plaintiff's case is that by a contract entered into in the month of January 1947, the defendant agreed to sell and the plaintiff agreed to buy 120 tons of pig lead of Australian origin at Rs. 39/ 120/- per cwt. ex defendant's godown. The terms alleged by the plaintiff in paragraph 1 of the plaint are, inter alia, as follows:
(a) The defendant would deliver to the plaintiff the said 120 tons of pig lead in two lots of GO tons each;
(b) The plaintiff would pay the defendant the price of each lot of 60 tons at Rs. 39/12/- per cwt.
(c) The defendant would give delivery of the aforesaid lot of 60 tons to the plaintiff immediately after full payment of the price of the said 60 tons at the said rate;
(d) The remaining quantity of the second lot weighing 60 tons to he delivered to the plaintiff after delivery of the first lot of 60 tons;
(e) The full value of the remaining quantity of 60 tons at the contract rate to be paid by the plaintiff after delivery of the first lot of 60 tons to the plaintiff.
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On these terms the plaintiff alleges that on 16-1-1947 the plaintiff advanced to the defendant a lump sum of Rs. 48,000/- which covered more than the full value of the price of the first lot of 60 tons. In paragraph 3 of the plaint it is alleged that it was further agreed between the parties that after debiting the plaintiff with the full value of the first lot of 60 tons at the contract rate against the sum of Rs. 48,000/- advanced by the plaintiff the balance would be carried over to the credit of the plaintiff and appropriated towards part payment of the price of the second or remaining lot of 60 tons of pig lead.
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In paragraph 5 it is alleged as follows: "The plaintiff at the request of the defendant extended the time for delivery from time to time and accommodated the defendant to deliver the said goods in instalments within a reasonable time."
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In paragraph 7 it is alleged as follows: "By a letter dated 6-9-1947 in wrongful breach of the contract the defendant refused to deliver the remaining portion of the said goods, namely, 65 tons 3 cwt. 0 qr. 21 Ib. 4 oz. within a reasonable time or at all."
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In paragraph 8 the plaintiff alleges that by reason of the terms the plaintiff has suffered loss of Rs. 29,647/9/3 being the difference between the contract rate of Rs. 39/12/- per cwt. and the market rate on 8-9-1947, the date of the breach in respect of delivery in terms of the contract.
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Counsel on behalf of the defendant raised preliminary objection as to the competency of the plaintiffs cause of action with regard to damages on the grounds, first, that there was no pleading of agreement of extension of time for delivery of the goods and secondly, that there was no pleading that there was extension of time up to any defined point. Counsel for the defendant also contended that the plaintiff's claim with regard to Rs. 4401/12/9 was barred by limitation by reason of the fact that the plaintiff originally instituted the suit against Pursottamdad Narsingdas a firm and by an amendment dated 4-9-1953 the Karta of the joint Hindu Mitakshara family was included as a defendant. The contention was that it was not a case of mis-description which was cured by an amendment but that it was a case of bringing to the record a new party and as such the suit would be barred by limitation on 4-9-1953. 1 should indicate here that when the amendment was allowed the question of limitation was left open to be canvassed at the trial.
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When the case came up for hearing a few weeks ago the aforesaid objections were indicated by counsel for the defendant. Counsel for the plaintiff thereupon asked for an adjournment of the suit in order to apply for an amendment of the plaint. Eventually counsel for the plaintiff stated that the plaintiff did not want to amend the plaint in any manner whatever. Counsel for the plaintiff also stated that the plaintiff could not stated on oath that there was any agreement of extension of time on any particular date or up to any particular date.
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As to the plaintiff's claim for damages the questions to be considered are, first, whether there is any pleading that there was an agreement for extension of time for delivery; secondly, whether there is any pleading that the time for delivery was extended up to any definite point of time; thirdly, whether the plaintiff can ask for damages without acceptance by the plaintiff of the repudiation of the contract by the defendant and fourthly, whether the plaintiff is entitled to claim damages on the basis of rates prevalent on 8-9-1947.
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The plaintiff's claim in paragraph 1 of the plaint is that 60 tons were for immediate delivery. The remaining 60 tons were to be delivered after delivery of the first lot of 60 tons. The contract was entered into in the month of January 947. The term being for immediate delivery, delivery was to be is the month of January 1947 or within a reasonable time from the date of the contract. Reasonable time is always a question of fact. If there was no case of extension of time for delivery it would have to be found out as to what would be the reasonable time for delivery when the contract was entered into in the month of January 1947 for immediate delivery.
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It is not the plaintiff's case that there was to be the delivery within a reasonable time after the entering into of the contract. It...
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