The Court further held that 3,693 tons of ore offered by the defendants under Contract No, 66 between December 28 to 31, 1953, were below the agreed specifications, and the defendants had companymitted breach of companytract, and were liable in damages.
On the allegation that the defendants had companymitted breach of companytract, the plaintiffs companymenced an action in the Court of the Additional District Judge, Bhandara, for a decree in which they originally claimed Rs.
66 the defendants agreed to supply on or before December 31, 1953, 6000 tons of High Grade manganese ore at the rate of Rs.
1,84,137/5/6 which was later by amendment increased to Rs.
In appeal by the defendants the High Court companyfirmed the decree passed by the Trial Court.
that in pursuance of the agreement 2,873 tons were number analysed in respect of number manganese companytents that the stacks of 3,693 tons of ore were pre pared and offered but were number accepted by the plaintiffs that the plaintiffs by their declarations, acts and omissions intentionally caused and permitted the defendants to believe that they will number enforce the terms stipulated in the companytract, but will accept the ore under the terms as modified by the subsequent oral agreement that the plaintiffs had never sis formed the defendants that they intended to enforce the original terms of the companytract and the plaintiffs having failed to do so in good time before December 31, 1953, the delivery offered to them of 3,693 tons was according to the specifications as agreed after the terms of the companytract were originally recorded.
65 the defendants agreed to supply before the end of November 1953, 4,000 tons of Second Grade manganese ore at the rate of Rs.
Under Contract No.
The Trial Court held that the stipulation as to time was of the essence of companytract under both the companytracts, and that the terms of the companytracts were number orally modified by the parries subsequent to the execution of the companytracts.
The defendants thereafter did number supply the balance of 351 tons.
Under Contract No.
They also companytended that the companytract was acted upon till August 7, 1958, and thereafter the parties agreed to waive the companytract.
3,56,949/ .
68 Rs.
65 which the plaintiffs did number accept.
65 and 66 both dated May 7, 1953.
The Trial Court on that view decreed the claim against the defendants for Rupees 1,87,955/ and proportionate companyts.
142/ for Sitasaongi and Dattapohar.
In respect of Contract No.
The defendants agreed to supply manganese ore of certain specifications to the plaintiffs under two companytracts Nos.
66 the defendants companytended that they had supplied manganese ore to the plaintiffs since January 1953 under several companytracts, and that there used to be distinct subsequent oral agreements by which the written terras about the specifications of the various companytents of the ore were modified, and the plaintiffs agreed number to enforce the specifications regarding silica, iron and phosphorous companytents of the ore but to accept the ore that there was a distinct subsequent oral agreement after Contract No.
The plaintiffs claimed that time was the essence of the companytracts and the defendants had failed and neglected to deliver manganese ore according to the specifications within the period of the companytracts.
103/ per ton for Sitasaongi and Dattapohar, By the second companytract No.
tons of ore offered by the defendants was number accepted, because it was according to the plaintiffs, number according to the specifications.
The defendants also offered to supply between 28th 31st of December, 1953, 3,693 tons in ten lots, but on sampling it was found that the companytents of silica, phosphorous and iron of the manganese ore were number according to the specifications under the terms of the companytract, and the plaintiffs declined to accept the quantity offered.
88,596/ and under Contract No.
Under Contract No.
66 was executed by which the plaintiffs agreed that they would number enforce the stipulation about the companytents of silica, iron and phosphorous, and even about the manganese companytents of each lot it was agreed that the plaintiffs would accept on the basis of average of grouped lots taken together provided the overall average came to 46.25 percent, though any one or more lots show the companytents less than 48 percent, But number less than 45.1 per cent.
Under Contract No.
2,68,853/ .
66 upto December 27, 1953, the defendants supplied 2,873 tons 3 c.w.t.
65 the defendants supplied 3,649 tons which were accepted.
85 the plaintiffs claimed Rs.
The defendants companytended, inter alia, that they had offered 851 tons of manganese ore under Contract No.
8 B of 1956.
C. Shah, J. This is an appeal with special leave by the defendants against the judgment of the High Court of Bombay Nagpur Bench companytaining the decree of the Additional District Judge in Suit No.
