{"id":143489,"date":"1954-08-27T00:00:00","date_gmt":"1954-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramdhan-das-ram-kissan-firm-vs-kishori-chand-geor-firm-on-27-august-1954"},"modified":"2018-12-12T09:22:54","modified_gmt":"2018-12-12T03:52:54","slug":"ramdhan-das-ram-kissan-firm-vs-kishori-chand-geor-firm-on-27-august-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramdhan-das-ram-kissan-firm-vs-kishori-chand-geor-firm-on-27-august-1954","title":{"rendered":"Ramdhan Das Ram Kissan Firm vs Kishori Chand Geor Firm on 27 August, 1954"},"content":{"rendered":"
Orissa High Court<\/div>\n
Ramdhan Das Ram Kissan Firm vs Kishori Chand Geor Firm on 27 August, 1954<\/div>\n
Equivalent citations: AIR 1954 Ori 254<\/div>\n
Author: Narasimham<\/div>\n
Bench: Narasimham, Mohapatra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Narasimham, J. <\/p>\n
 1. This is an appeal by the defendant-firm again the  concurrent   decisions   of  the  two   lower  Court decreeing  the plaintiff-firm’s   suit  for   damages   of breach of contract.\n<\/p>\n
2. The plaintiff and the defendant are two firm carrying on business in Cuttack town.    The plain tiff-firm alleged that the defendant-firm entered  to two forward contracts dated 22-8-45 and 23-8-45 with them for the supply of a certain quantity of tobacco  of the variety known as   ‘Motichur  K.   G. No. 2’ at the stipulated prices.    The  due date for the first contract was  19-11-45 and for the second contract 19-12-45.    It was alleged that the defendant firm failed to supply the goods on the stipulated dates   and   the   plaintiff   firm,    therefore,    claimed damages on the basis of the difference between the contracted rate and market rate for the goods  19-11-45 and  19-12-45.\n<\/p>\n
3. The defendant firm, however, denied the fire contract altogether.    They admitted the second cortract but alleged that they were unable to supply the goods on the date fixed due to the conduct of the plaintiff firm in purchasing all available stock of  Motichur  K.   G.  No.   2  apprehending  a  fall  to the   prices   and    fraudulently    changing    the   trade mark to P. S.  and S.  B.’ and selling the same a such a low rate as Rs. 73\/- per maund.    On 6-1-4 the  defendant firm offered to supply  Motichur  of P. S. and S. B. brand but the plaintiff firm refused to accept the same.\n<\/p>\n
The defendant firm, therefore, made a counter claim for damages against the plaintiff firm. Both the Courts held that the first contract was well proved by the entry in the Sauda Book of the plaintiff firm (Ext. 1) and the evidence of their broker (P. W. 4). This is a pure finding of fact which was rightly not challenged in this appeal. As the second contract was admitted it may thus to be taken as well established that both the contracts were entered into by the defendant firm with the plaintiff firm as alleged in the plaint.\n<\/p>\n
4. Both the Courts further held that the plainti)–firm did not comer all tobacco of K. G. variety in the   market   as   alleged by the  defendant  firm  no. did they alter the brand from K. G. No. 2 to P. S. and S. B.    Hence, they held that the defendant firm had no excuse for failure to supply the contracted brand of tobacco.    As regards the measure of damages,  they held that  the plaintiff firm were  entitled to the  difference between  the  market price and the  contracted  price  on the  due   dates.     The market  price   on   the   due   date   in   respect   of  the first contract (19-11-45) was available from the evidence   on   record.     But   the   market   price   on   the due date in respect of the second contract (19-12-45) was not available as no transaction took place on that date.    Both the Courts, therefore, took .in to   consfderation   the   rate   that   was   prevalent   just before and just after that date relying on — ‘J ‘ mohan Das v. Nusserwanji’, 26 Bom 744 (A).       ;\n<\/p>\n
5. Mr. Das on behalf of the appellant raised following questions of law:<\/p>\n
\n  \n \n\n(i) There was a commercial impossibility in peforming the second contract inasmuch as K. C\nNo.   2   was   not   available  in   the   market   in       December,   1945;\n \n\n(ii) The finding of the appellate Court was that\nK. G. No. 2 was of the same quality as P. S.\n     and S. B. and consequenty  the plaintiff-firm\n11     should   have   accepted   the    defendant   firm's      offer dated 6-1-46 to supply tobacco of P. S. and S, B. variety, time of delivery of the goods      being not of the essence of the contract;\n \n\n(iii) Both the Courts were not justified in taking\n    the market price on the dates preceding and\nsucceeding the date of the breach of contract\nfor   the   purpose   of   ascertaining   the   market\nrate on the  date of the bread.  \n \n\n<\/pre>\n
6. The first point must fail on the findings of fact of  both the Courts. Doubtless, the trial Court observed that there was very little tock of K. G. variety of tobacco by Margasir-Punima (December, 1945) at Cuttack in the markt and it was not possible for the defendant-firm to deliver the goods as contracted by them. But he trial Court
\nfurther found that one Kumar Sahuwho had contracted with the plaintiff firm to suply 4,500 bag if K. G. No. 2 delivered 375 bags between 28-11-5 and 27-12-45. Similarly, on Ramchandra Banshidhar supplied 25 bags of K,G. variety on 2-12-45 and Sundar Das Damoda: Hansaraj sold 25 bags of the same variety on 9-1945.\n<\/p>\n
 Hence tobacco of K. G. variety as available at “attack in December, 1945, though not in large quantities, and in the absence of any clear evidence on the side of the defendantirm it cannot be held that the contract could not b performed due to commercial impossibility. The place of manufacture of the variety of tobacco MS admittedly at Bhotmali and there is nothing onrecord to show that the defendant-firm could not ive secured that variety of tobacco from that place and supplied it to the plaintiff-firm on the due da.\n<\/p>\n
7. The second point, however,’equires detailed consideration. Mr. Das’s argumen was that K. G. No. 2 and P. S. and S. B. varietie of tabacco were identical. The letters ‘K. G.’ stood for ‘Keshori chand Gheorchand’ which is the me of the plaintiff-firm. The letters ‘P. S.’ stood in ‘Pushraj Sagarial’ and ‘S. B.’ for ‘Sampatroy Badeb’. All these persons are said to be partners of the firm ‘Keshori-Cheorchand’. It was therefore aeged by the defendant-firm that the plaintiff-fin purchased all available stock of K. G. variety otobacco and finding that the market was falling langed the brand to ‘P. S. and S. B.’ and sold the  me in the market at a low price thereby putting the defendant-firm to loss. This is, however, a pur question of fact on which both the Courts held  against the defendant-firm. Apart from the urorroborated testimony of the defendant-firm the is practically no evidence to show that the plaintiff-firm cornered
\nK. G. variety of tobacco and aered the brand to P. S. and S.  B.\n<\/p>\n
 8.  Mr.   Das   next   contended that   the   appellate
\nCourt had come to a clear finds that K. G. No. 2<\/span>
\nof  the same quality as P. S and S. B. and that
\nenough   the  parties  had   stiputed   in   the   original
\natract that K. G. No, 2 along would be supplied,
\nwas intended by both of   them that “K. G. No.
\nshould stand for quality art not for description
\n  the goods.    Mr.  Das  therefore  urged  that  so
\nIon as tobacco of the same quality as K. G. No. 2-wa supplied the plaintiff firm were bound to accpet the same in accordance with the true intention of the parties when they entered into the contract.\n<\/p>\n
He relied on — ‘Hopkins v. Hitchcock’, (1863)’  LJCP 154 (B). In that case the contract between the parties was for the supply of iron marked ‘S. and H.” The iron which was supplied was. however, marked ‘H and Co.” The parties were aware that the original firm of iron manufacturer was “S. and H. Co.” but it had been changed to “H. and Co.” and that the iron manufactured by both the companies was of identical quality. On these materials the Court found as a fact on a true construction of the contract that there was no stipulation for supply of a particular brand of iron, the letters “S. and H” being used to describe a particular quality of iron only. The applicability of the aforesaid decision to the present case would arise only if the defendant-firm bad established that tobacco of the variety known as K. G. No. 2 was identical in quality with tobacco marked P. S. and S. B. The judgments of both the lower Courts would not support the assumption that the said two varieties of tobacco were of the same quality.\n<\/p>\n
Mr.  Das   relied  on  the penultimate   sentence  of the  judgment  of the   lower appellate   Court  while discussing  point  No.   (2)   to   the   following   effect:\n<\/p>\n
“and   there   is   satisfactory  evidence   to   hold  that S.   B.  and P.  S.  marks of Motichur was  of the-same  quality as K.   G.  No.  2  Motichur.”\n<\/p>\n
He urged that this was a clear finding of fact about the qualities of the two varieties being the same. But in the earlier portions of the judgment the lower appellate Court has observed:\n<\/p>\n
“Though  they  placed  orders   for  K.   G.,   perhaps they  received   inferior   stock   as   the   former   was not available   at Bhotmali.”\n<\/p>\n
 Again, it was observed:\n<\/p>\n
“they are not bound  to  receive  P.   S.  and S.   B.\n<\/p>\n
marks even if it be accepted for the same  quality
\nas K. G. No. 2 sun mark.\n<\/p>\n
Hence, if the entire discussion of  the  lower appellate Court regarding point No, 2 ‘be’ carefully considered it would applear that he did’, not come to a finding that K. C. No. 2 and P. S.’and S. B. are of the same variety land, that perhaps thee word ‘not’ was omitted through oversight’ in the penultimate sentence of that paragraph quoted above. The trial Court has come to a finding  that P. S. and S. B. is inferior stuff compared to K. G. No. 2 and the appellate Court has, in essence, confirmed this finding. As there is some ambiguity in the judgment of the appellate Court we went through the evidence adduced by the parties in this connection. Apart from the bare statement of the defendant (D. W. 1) there is practically no evidence on record to show that they are of the same quality.\n<\/p>\n
On the other hand, the defendant’s own exhibit (Ext. A-3) gives the price of tobacco of P. S. and S. B. variety on 16-11-48 at Rs. 85\/- per maund and Ext. A-8 gives the price of K. G. No. 2 on the same date to be Rs. 90\/- per maund. This difference of Rs. 5\/- per maund as disclosed from the defendant’s exhibits in respect of the two varities of tobacco prevailing in the market on the
\nsame day would lead to a reasonable inference that the qualities of the two varities were not the same. Hence, the assumption on which Mr. Das has buit up his argument cannot be accepted.\n<\/p>\n
9. Again,   Mr.  Das   is   not right  in  saying  that the time of delivery was not of the essence of the
\ncontract. Mr. Das relied on Section 11, Sale of Good Act, which runs as follows:\n<\/p>\n
“Unless   a   different   intention   appears   from   the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of contract of a sale.     Whether  any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.”\n<\/p>\n
  Though the section makes it clear that stipulations as   to   time   of   “payment  would   ordinarly   be   not of the essence of a contract for sale of goods, yet that section does not support Mr. Das’s contention that the time of delivery of goods  would  also be not of the essence of the contract.    On this question  the   section   merely   says   that   it   depends   on the terms of the contract.    But it is well settled by a   series   of  decisibns   that   in   ordinary   commercial contract for sale of goods  time  is prima  facie  of the  essence with respect to  delivery  ‘Bowes v. Shand’, (1877) 2 AC 455 at pp. 463 and 464 (C);\n<\/p>\n
— ‘Reuter v. Sala’, (1879) 4 CPD 239 at p. 249 (D) and — ‘Sharp v. Christmas’, (1892) 8 TLR 687 (E). Here, the very nature of the contract between the parties is sufficient to show that the time of delivery was of the essence of the contract. Forward contracts were entered into by the parties who were anticipating fluctuations in prices. The defendant’s own exhibits (Ext. A series) show how the price of tobacco fluctuated from 14-11-45 to
\n31-12-45. In the absence of any evidence to the contrary the prima facie view that in commercial transactions of the type time was of the essence of delivery may be accepted.\n<\/p>\n
It   was,   however,   urged   that   these   were   mere forward   contracts  in   which   actual   delivery
\n (SIC) never the main consideration and that the (SIC)  were gambling on fluctuation in prices. This (SIC) ment also   would go   against  Mr.   Das’s  conten (SIC) inasmuch   as  the parties   who   were   gambling (SIC) fluctuation in prices must obviously have inten     that time was of the essence of the contract. Hence, the   plaintiff-frm  were   not   bound   to   accept   the belated  offer of the   defendant-firm   on  6-1-46  to supply P. S. and S. B. variety of tobacco.\n<\/p>\n
10. As reguds the third point, the Bombay decision relied on by the lower Courts, namely, — ’26 Bom 744 (A)’ s a complete answer.    The rate on the date of the breach (19-12-45) was not available. Mr.   Das,   however,   urged   that   Ext.   A-9   showed that K. G. varety was avilable at the rate of R(SIC) 72\/8-   per  maud  on   28-12-45   and   that  the   trial Court should not have estimated the  price  at Rs 96\/- per mauni on 19-12-45.    The lower appellat Court   has,   however,   discussed   the   importance   of Ext.   A-9   and given   reasons   for   disbelieving   the rate as given in that exhibit.    This is a pure question of fact which cannot be reagitated in the second appeal.\n<\/p>\n
11. I would,  therefore,  affirm the judgments (SIC). both the Courts and dismiss the appeal with cost.\n<\/p>\n
 Mohapara J.\n<\/p>\n
12.  I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Ramdhan Das Ram Kissan Firm vs Kishori Chand Geor Firm on 27 August, 1954 Equivalent citations: AIR 1954 Ori 254 Author: Narasimham Bench: Narasimham, Mohapatra JUDGMENT Narasimham, J. 1. This is an appeal by the defendant-firm again the concurrent decisions of the two lower Court decreeing the plaintiff-firm’s suit for damages of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-143489","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nRamdhan Das Ram Kissan Firm vs Kishori Chand Geor Firm on 27 August, 1954 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramdhan-das-ram-kissan-firm-vs-kishori-chand-geor-firm-on-27-august-1954\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramdhan Das Ram Kissan Firm vs Kishori Chand Geor Firm on 27 August, 1954 - 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