JUDGMENT
1. In the suit which is the subject-matter of this appeal the plaintiff claimed damages for breach of contract from the defendants. It appears that on 19-8-1946, the plaintiff entered into a contract with, the defendants for the supply of Rs. 3000 gross of safety matches at the rate of Rs. 4/- per gross, the plaintiff also deposited a sum of Rs. 900/- in advance with the defendants. On 12-11-1946, the defendants wrote a letter to the plaintiff cancelling the order and also returned the sum of Rs. 900/- deposited by the plaintiff as advance. The amount was sent by the defendants to the plaintiff by a Bank draft.
It is the admitted position that the plaintiff realised the money covered by the bank draft. On 18-11-1946, the plaintiff sent a letter to the defendants requesting that another wagon of safety matches may be supplied in January. 1947. The plaintiff sent a pleader’s notice on 20-11-1946, claiming damages from the defendants for breach of contract dated 19-8-1946. The plaintiff thereafter brought the present suit against the defendants. The suit was contested by the defendants on the principal ground that though there was a breach of the first contract the plaintiff had dispensed wholly with the performance of that first contract and the plaintiff was, therefore, not entitled to claim any damages for the breach.
The trial Court decreed the suit, but the decree was upset by the Additional District Judge of Dar-bhanga, who heard the appeal, on the ground that there has been a waiver on the part of the plaintiff of the performance of the first contract and so the plaintiff was not entitled to damages for breach of that contract. The Additional District Judge came, to the finding that the letter, exhibit 1 (b), dated the 12th November, 1946, was received by the plaintiff on 18-11-1946, before the plaintiff despatched the letter exhibit A (1). Exhibit 1 (b) reads as follows:
“Dear Sirs,
Enclosed please find a Bank Draft for Rs. 900/-(Rupees Nine Hundred) only lying with us as deposit for safety maches. As there is no chance of Supply of matches in the near future we have cancelled your order and hence the money is being returned to you. Please own receipt.
Thanking you
Yours faithfully
For B. N. Kataruka and Sons.
sd/illg.”
The other letter exhibit A(l) written by the plaintiff, placing a fresh contract for the supply ol matches, is reproduced below :
“Dear Sir,
Will you please supply us one wagon matches in January, 1947. So we request you to let us know, so that we may be able to deposit the advance money in time.
Thaking you much for an early compliance.
Yours faithfully.
Sd/L. Nayak.
For Lakhan Nayan Tapeshwar Naik”.
The learned Additional District Judge came to the finding that the plaintiff despatched exhibit A(l) after be had received the letter of cancellation of : the first contract from the defendants, exhibit 1(b). He also came to the finding that the bank draft for Rs. 900/- was accepted by the plaintiff. On the basis of this evidence the learned Additional District Judge held that there was a waiver of the performance of the first contract on the part of the plaintiff and so the decree for damages could not be granted to him. When the matter came up in second appeal, the learned Single Judge reversed the decision of the Additional District Judge of Dar-bhanga and held that the plaintiff was entitled to a decree for damages to the extent of Rs. 750/- for breach of contract.
2. The main question for consideration in this Letters Patent appeal is whether the plaintiff had dispensed with the performance of the contract within the meaning of Section 63 of the Indian Contract Act and whether the learned Single Judge was right in holding that the plaintiff was entitled to a decree for damages for breach of contract. On behalf of the appellants the argument put forward was that upon the evidence the inference must bo drawn that the plaintiff dispensed with performance of the first contract and so he was not entitled to damages for its breach. Section 63 of the Indian Contract Act is in the following terms :
“63. Every promisee may dispense with or remit wholly or in part, the performance of the pro-anise made to him or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.”
On behalf of the respondents reference was made to Section 60 of the Indian Sale of Goods Act, which states as follows:
“60. Where either party to a contract of sale repudiates the contract before the date of delivery, the other may either treat the contract as subsisting and wait till the date of delivery or he may treat the contract as rescinded and sue for damages for the breach.”
In our, opinion, this section of the Indian Sale of Goods Act is not relevant for the determination of this case. It is true that that section gives the right to the plaintiff who was a party to the contract of sale either to treat the contract as subsisting and wait till the date of delivery or treat the contract as rescinded and sue for damages for breach. It is tme that the plaintiff bad either of the two alternative rights, but it was still open to him to waive the performance of the contract under the provisions of Section 63 of the Indian Contract Act. The crucial question for determination in this case is whether in the circumstances of this case there was a dispense firm by the plaintiff of the performance of the contract.
On this point the Additional District Judge referred firstly to the circumstance that the plaintiff received the letter exhibit 1 (b) dated 12-11-1946 from, the defendants cancelling the contract on the 18th November, 1946. He also found, after a discussion of the material evidence adduced by the parties on the point, that the plaintiff received ex-nibit 1(b) before he despatched the fresh order contained in exhibit A(1) dated 18-11-1946 for the supply of matches. It has also been found that the plaintiff accepted the bank draft for Rs. 900/- sent by the defendants which amount was deposited by the plaintiff as advance money for the performance of the first contract.
It is also remarkable that in the letter exhibit A(1) dated 18-11-1946, the plaintiff while placing a fresh order for matches nowhere mentioned about the breach, of the first contract dated 19-8-1946. If there was no intention on the part of the planitiff to waive the performance of the first contract, there is no reason why he should not mention in his letter exhibit A(1), dated 18-11-1946 that there was a breach of the first contract and the defendants were liable to pay damages for that breach. In our opinion, the conduct of the plaintiff .shows that there was a dispensation by the plaintiff of the performance of the contract within the moaning of Section 63 of the Indian Contract Act.
Our view is borne out by a derision of the; Privy Council in Chunna Mal Rani Nath v. Mool-chand Ram Bhagat, 55 Ind App 154 : (AIR 1928: PC 99) where it was pointed out by Lord Atkinson that under Section 63 of the Indian Contract Act a promisee can effectually dispense with performance of a contract in whole or in part, without either an agreement by the promisor, or consideration for the dispeasation. It follows, therefore, that the plaintiff was not entitled to a decree for damages) for the breach of the contract and the view taken by the learned Additional District Judge of Dar-bhanga is correct and the suit brought by the plaintiff must be dismissed with costs throughout.
3. We accordingly allow this appeal, set aside the decree of the learned Single Judge of this Court, dated 5-8-1954 and order that the suit of the plaintiff be dismissed with costs throughout.