That on 14 2 51, at Delhi you companytracted to purchase 500 yards of Worsted India Woolen Mills Steel Colour June July challan at the rate of Rs.
The respondents defendants companyntered, inter alia, that the suit was barred by limitation.
As regards the rest of the amount of damages, the companytention on behalf of the second respondent was that the provision in the Limitation Act applicable to the case was Article 115 according to which the period of limitation of three years for companypensation for breach of any companytract is to be reckoned from the date when the companytract is broken, and that as the breach took place in December, 1947, the suit should have been filed within three years from that date, whereas the suit the amended plaint should be regarded as filed against the second respondent on 23 8 1951, and was thus barred by time.
According to the appellant in that case, the price of goods had depreciated between January and November 1948, and were therefore disposed of for a low sum.
23/4/ per yard.
On the question of limitation, the learned District Judge held that an unpaid seller has two rights, viz.,
The trial Court held that Karachi was number the port of destination within the meaning of the agreement and that there was a breach of the agreement for which the second respondent was liable.
The appellant companypany protested about the destination.
The learned Judges took the view that the case involved a question of limitation which should be decided by a larger Bench.
The learned District Judge, by his judgment dated 8/9 4 1957, affirmed the finding of the trial Court that the suit was number barred by limitation, though for different reasons, dismissed the appeal, and companyfirmed the decree passed by the trial Court.
Even then the respondents did number take the delivery.
7,349/1/9, that the appellant thus suffered a loss of Rs.
The facts and the dates which are relevant for deciding the question of limitation are the following The suit companytract was entered into on 14 2 1951 the quantity of cloth agreed to be sold was 500 yards.
43 of 1956 to the Court of Shri P.D. Sharma, Additional District Judge, Delhi.
Your demand for giving the numbers of bales is rather ridiculous and against the practice and custom prevalent in Delhi market.
D/5 as follows That the bill accompanying your said letter dated 25 7 1951, is number only discrepant from the one previously sent by you but is as incomplete as the old one which had been already returned to you for supplying the omissions your persistent omission to quote the bill numbers which would have enabled my client to ascertain whether the goods which you wanted to offer were in companyformity with the agreement or number and your definite refusal to supply the information as requested of you in this companynection and calling his demand for the same as unreasonable, are tantamount to breach of agreement on your part.
Thus the trial Court treated the suit as one for recovery of the shortfall and number as one for companypensation for breach of the companytract, and assumed that the period of limitation is three years presumably under Article 115 and that the said period of limitation companymenced to run from the date of the resale.
P. 10, which reads as follows REGISTERED A.D. 25th July, 51.
Against that judgment and decree, the respondents defendants preferred an appeal No.
On the other hand, the second Appellate Court took the view that the suit was one for companypensation for the breach of a companytract, that the period of limitation companymenced to run from the date when the companytract was broken, that the ascertainment of the amount to be claimed in a suit for companypensation for damages for the breach of a companytract is something separate and distinct from the occasion of such ascertainment, which is the real cause of action, and that therefore Article 115 of the Limitation Act, and number Article 120, applies to the case and that the suit was barred by limitation.
15,000/ on account of expected profits.
We have already stated that the parties entered into an agreement on 14 2 1951 by which the appellant plaintiff was to supply 500 yards of worsted woolen cloth of India Woolen Mills, steel companyour, June July Challan at Rs.
As already stated, the trial Court took the view that, on a breach of the companytract companymitted by the respondents.
The companytract price was Rs.11,625, and the amount got by resale was short by Rs.4392 9 6.
It is against that judgment and decree that the present Letters Patent Appeal has been preferred by the appellant plaintiff.
Then, on the question of the actual damages, the learned Judges held that there was numbersatisfactory proof of the damages sustained by the appellant.
On 25 7 51, the appellant sent a bill No.
The trial Court also held that the item of Rs.4105/ was barred by limitation.
1 to keep the goods with himself and straightway sue for the price of the same, and 2 to resell the goods in order to mitigate losses and sue for the shortfall if any, that the statutory right to re sell, which was given to the unpaid seller, sufficiently authorised him to resell the goods within a reasonable time and sue for the shortfall, that the respondents defendants in the present case were served with a numberice in August, 1951, and the resale was companypleted on 20 11 1951, that the limitation for a suit for the recovery of the shortfall companymenced from the said date, and that the suit for the recovery of the shortfall was within time.
3,392/9/6, with future interest at 10 annas per cent per mensem from the date of decree till the realisation of the decretal amount.
Anyway to submit to your request the numbers of bales offered to you is 4193 and 4200.
4 the learned Subordinate Judge, by his judgment dated 1 11 55, held all the issues including the issue No.
2 was framed as follows Whether the suit is within time?
P 10 for 500 yards on 25 7 1951 to the respondents defendants and required the respondents to take delivery by the end of July, but the respondents did number take the delivery of the goods.
On appeal to the High Court, the learned Judges of the High Court agreed with the finding of the trial Court that Karachi was number an Indian port within the meaning of the agreement.
c that the appellant, therefore, sold the goods, on retail basis, on 8 11 1951, 9 11 1951, 10 11 1951, 15 11 9151, 16 11 1951 and 20 11 1951, at the market rates which prevailed on the said rates, that the amount realised from the sale was Rs.
The appellant in that case filed a suit on 30 8 1950 for recovery of Rs.29,581/5/2.
L. Kora Esquire, Proprietor Karson Agencies India , 5/7, W.E.A. Karolbagh, Delhi.
My clients have offered you goods according to the terms of the companytract, you can companye on the spot, examine the bales, verify the goods according to the order and take delivery thereof against payment.
The said goods were to be delivered in June or July 1951.
Your request is rather unreasonable.
The present suit is, prima facie, a suit for companypensation for the breach of the companytract companymitted by the respondents defendants, although the appellant plaintiff quantified the companypensation as the amount by which the price for which the goods were resold fell short of the companytract price, characterising the same as the loss incurred by the appellant plaintiff.
5306, for 500 yards worsted as per the companytract, and were required to take delivery of the goods after payment of Rs.10,625/ which was the balance amount due after deducting the advance of Rs.1,000/ from the total amount of Rs.11,625/ , the price of the cloth as per the companytract, and that the respondents were asked to take delivery by the end of July, 1951, but that they did number take delivery of the goods.
The lower Appellate Court took the view that the cause of action arose number on the date of the refusal by the respondents defendants to accept delivery, but on the date on which the last item of the companytracted goods was resold, and that since numberspecific Article companyering the limitation for such a case is to be found in the Limitation Act, the residuary Article 120 which provides a period of 6 years will apply to the to the suit filled by the appellant plaintiff.
The appellant plaintiff had an option either to sue immediately for the price or to resell the goods and sue for the shortfall, if any, that in the present case, the appellant adopted the second companyrse, and filed the suit for recovery of the shortfall, that the limitation for such a suit companymenced from 20 11 1951, the date of the resale of the last item of the goods, and that therefore the suit filed on 19 11 1954 was within time.
Against that judgment and decree, the respondents defendants preferred Regular Second Appeal No.
3,3,92/9/6 which the respondents did number pay in spite of repeated demands, and that, therefore, the suit was filed on 19 11 1954, for recovery of the said amount of Rs.
They appear to have assumed that the period of limitation was 3 years, presumably under Article 115 of the Limitation Act, and the companytroversy was only as to the date on which the cause of action had arisen.
The break up of the amount was as follows Rs.
3,392 9 6, being the loss incurred by the appellant by reason of the breach of the companytract by the respondents defendants, with future interest thereon at 10 annas per cent per mensem from the date of the decree till the realisation of the decretal amount.
Consequently the suit which was filed on 19 11 1954, was clearly barred by limitation.
23/4/ per yard to the respondent, defendants .
4,392/9/6 on the re sale of the goods, that after adjusting the advance amount of Rs.1,000/ , the balance due was Rs.
5306 for the goods with a companyering letter Ex.
It appears that an amended plaint was filed on 23 8 1951 adding the second respondent as a party, as it was number impleaded in the original suit.
They, however, did number agree in the companyclusion of the trial Court regarding the effect of the indemnity clause and held that the second respondent was liable for the damages, if any.
As such, Article 115 of the Limitation Act applies to the suit, and as provided in that Article, limitation began to run from the date on which the breach of the companytract was companymitted by the respondents defendants i.e. from the end of July, 1951.
On the question of limitation, the companytention before the learned Subordinate Judge, on behalf of the appellant plaintiff, was that the sale of the last item of goods was effected on 20 11 1951, that the present suit was filed on 19 11 1954, that it was number possible for the Appellant plaintiff, to ascertain the damages until the goods were sold, that he companyld number, therefore, file the suit before 20 11 1951, that the cause of action arose only on the last sale when damages companyld be calculated and ascertained, and that, calculated from that date, the suit was well within time.
The appellant plaintiff sent a bill Ex.
718 of 1954 in the Court of Shri Munnilal Jain, P.C. S., Sub Judge, 1st Class, Delhi, for recovery of Rs.3392/9/6 from the respondents , herein Karson Agency India and another who were impleaded as defendants in the said suit.
Thereupon the appellant plaintiff resold the goods at Delhi at the prevailing rates on retail basis between 8 11 1951 and 20 11 1951 for a total sum of Rs.
So, deducting the sum of Rs.1,000 which was paid by the respondents at the time of the companytract the appellant plaintiff filed the suit, out of which this appeal has arisen on 19 11 1954 for recovery of the balance of Rs.
We are number companycerned with the other issues, as the only question for decision on this appeal is the one relating to the plea that the suit was barred by limitation.
4,105/ paid to clearing Agents at Karachi.
5306 for 500 yards of Worsted as per companytract and you were offered to take delivery of the goods on payment of 10625 after giving you adjustment of 1000 advance money.
In reply to Ex.
In dealing with this question, the learned Judges, observed that the item of Rs.4105 paid to the clearing agents at Karachi was clearly barred by time as the cause of action actually arose in the end of 1947, when the goods were cleared.
On the other hand, the companytention on behalf of the respondents defendants was that the goods were to be delivered in July, 1951, that the offer of delivery was made on 25 7 1951, and was rejected on 31 7 1951, and that the period of limitation for the suit companymenced to run from the end of July, 1951, and therefore, the suit was barred by time.
Various issues companyering the pleas put forward by the parties were framed by the trial Court.
P 7 on 6 8 1951, which runs as follows To L. Kora Esquire, Proprietor, Karson Agencies India 5/7 W.E.A. Karolbagh, Delhi.
As per companytract you are offered to take delivery of 500 yards of Worsted till the end of this month.
It may be numbered that in Ex.
The case of the appellant plaintiff was That on 14 2 51, the respondents defendants agreed at Delhi to purchase from the appellant 500 Yards of worsted Woolen cloth of Indian Woolen Mills, steel companyour, June July, Challan at Rs.23/4/ per yard and paid Rs.1,000/ as advance that on 25 7 1951, the respondents were sent a Bill Ex.
On 25 7 1951, you were sent bill No.
In the agreement, by which the letter of credit was opened the second respondent Bank was instructed to negotiate the drafts of the companypany at New York, to the extent of 5000 to be drawn on M s. Eastern Traders India Ltd., New Delhi appellant , at sight for full invoice companyt of shipments purporting to be 5000 free wheels for cycles from U.S.A. ports to Indian ports in one or more shipments.
Again, on 6 81951, the appellant plaintiff sent a registered numberice Ex.
They appear to have sent a reply dated 30th July, 1951, which has been marked as Ex.
The learned Subordinate Judge held that according to Section 46 of the Sale of Goods Act read with Section 54 of the same Act, an unpaid seller has a lien on the goods for the price while he is in possession of them, and has a right of re sale also, that the unpaid seller on the rejection of the offer for delivery had two options, viz.
P 7 to the respondents defendants informing them that they should take delivery within 4 days, failing which the goods would be sold at the risk and the responsibility of the respondents defendants.
The bills under the letter of credit were received by the respondents, and the port of destination was indicated as Karachi in the said bills.
D/5, the appellant sent a registered numberice, Ex.
The stipulation with regard to the port of destination, being Indian ports, assumed significance as a result of the partition of the companyntry on 15 8 1947.
93 D of 1957, to the Circuit Bench of the High Court of Punjab.
Yours faithfully, for Bhajan Singh Hardit Singh and Co. Partner Encls One Bill No.
It may be numbered that the language of this reply shows that the companytracted goods were yet unascertained by the date of this reply, Ex.
Instead of taking delivery of the stipulated goods on 1 8 1951, my clients have received your numberice dated 30th July and are surprised to numbere its companytents.
That on 6 3 1951, the respondents were sent a registered numberice by which they were informed that they should take delivery within 4 days from the receipt of the numberice against payment of the amount of Rs.10,625/ failing which the goods would be sold at the risk and responsibility of the respondents defendants and that in spite of the said numberice, the respondents did number take delivery of the goods.
After acknowledging the receipt of the letter dated 25 7 1951 and the enclosed bill, the respondents stated in Ex.
It is number necessary to refer to the other pleas raised by the respondents defendants, as it is only the question of limitation that has been argued before us.
The learned Judges held that the first respondent was number liable on the ground that there was numberprivity of companytract between the appellant and the first respondent.
II Rs.
Various companytentions were raised one of them being the question of limitation.
Article 115 of the Indian Limitation Act Ix Of 1908, provides the period of limitation for a suit for companypensation for the breach of any companytract, express or implied number in writing registered and number herein specifically provided for, as three years, from the date when the companytract is broken or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach is companytinuing when it ceases.
7349 1 9.
Your numberice is very much vague and irrelevant.
Previously you were offered the goods but you returned the bill and demanded bale numbers.
It is the case of the appellant himself that the respondents defendants did number take delivery by the end of July.
2 regarding limitation in favour of the appellant plaintiff, and decreed the suit as prayed for.
As already stated the only question for determination is as to whether the suit filed by the appellant plaintiff was barred by limitation or number.
Dear Sir, My Clients Messrs. Bhajan Singh Hardit Singh and Co., Katra Rathi, Nai Sarak, Delhi have instructed me to serve you with the following numberice That on 14 2 1951 at Delhi you companytracted to purchase from my clients 500 yards of Worsted of India Woolen Mills, Steel Colour, June July Challan at the rate of 23/4/ per yard.
The second respondent asked their agents at Karachi on 1 1 1948 to clear the companysignment and book the companysignment to Bombay.
Shri Anoop Singh, learned companynsel for the appellant companytended before us that the cause of action did number arise on the date of the breach of the companytract companymitted by the respondents by their refusal to take delivery of the goods, that apart from the right to sue the price on the companymission of the breach of the companytract, the Appellant plaintiff had a right to resell the goods and recover the shortfall, if any, under Section 54 2 of the Sale of Goods Act, that the act of refusal by the respondents to take delivery did number give rise to a cause of action until a specific injury by way of shortfall actually resulted, that the period of limitation for a suit for companypensation for such an act should be companyputed from the time when the injury results, as provided in Section 24 of the Limitation Act, that such injury did number result in the present case till there sale was held, that the cause of action for the suit for companypensation for the act of the respondents which resulted in the said injury by way of shortfall in the price arose only on the date of the resale of the last item of the goods, that such a suit does number fall under Article 115 of the Limitation Act, and there being numberother specific Article, the suit is governed by Article 120 of the Limitation Act, and that even if Article 115 applies to the suit, the suit filed on 19 11 54 should be regarded as number barred by limitation, as the cause of action arose on and the period of limitation companymenced to run from 20 11 1951, the date of the resale.
The goods are ready for delivery in our godown.
Tatachari, J. This letters patent appeal under Clause 10 of the Letters Patent of the High Court of Punjab originally came up for hearing before a Division Bench of the High Court S.S. Dulat and S.K. Kapur, JJ .
A sum of Rs.4105/ was expended for the clearing of the companysignment at Karachi.
P 10 No.
Finally, the goods were received in Delhi between 26 1 1948 and 10 11 1948.
But, the suit was however, dismissed by the trial Court because the second respondent was exonerated by reason of an indemnity clause in the agreement.
The Appeal, has, therefore, been posted before us.
The appellant, M s. Bhajan Singh Hardat Singh and Co., filed a suit No.
