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TMI Blog1936 (3) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... of this season's cutting, delivered inside one (our) Factory and for which we agree to pay you at the rate of six panseries per rupee. You further agree to deliver the above quantity as follows: In the event of your failing to adhere to the above deliveries we reserve the right to cancel the balance remaining undelivered during any one month or accept same and also any supplies in excess of the monthly quota at the purchase price fixed by us from time to time for local purchases. 2. The plaint claims that by March 1931 the quantity of bark supplied under the contract for the instalments came to 18,198 maunds 30 seers, and that other quantities, namely 16,773 maunds 6 sears, in December 1930 and 3,986 maunds 15 seers supplied in March 1931, were not to count towards the instalments, but were separate from the total and were paid at a different rate, twenty panseries per rupee instead of six panseries per rupee. Further, in para. 6, the plaint sets out that in April the plaintiff sent 4.776 maunds 24 seers of bark and the defendant only took delivery of part, that is 2,515 maunds 20 seers, and refused to take the rest. This was shown by a telegram of 25th April 1931, printed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods were to be delivered at Cawnpore. The rates at Cawnpore were certainly higher, so the plaintiff should have despatched 8,000 maunds of bark to Cawnpore and sold it off here, or if he did not do that, he should have proved the prevalent rate in the month of May 1931 at Cawnpore. He did neither. Therefore I am sorry to hold that the plaintiff can recover no damages for the resale of the goods at Ambala. 4. The Court therefore dismissed the claim for damages for this 8,000 maunds. The plaintiff has brought an appeal claiming damages to the extent of ₹ 8,027-7-4 for 8,000 maunds. His claim as argued before us was that the contractual rate for these 8,000 maunds was ₹ 10,666, and that even if the Court below had objected to taking ₹ 1,000 as the value realised by the plaintiff for these 8,000 maunds, then the Court might have applied the rate of twenty pansaries per rupee at Cawnpore, which would give a figure of ₹ 3,200 and decreed the plaintiff the difference, ₹ 7,466. The plaintiff relied on the telegram on p. 32 from the defendant, dated 22nd April 1931: "Five railway receipts to hand can only accept at twenty panseries," as sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction by the appellate Court of a document. The Court held that Rule 22 of Order 41 contemplated the decision of the Court below being supported by grounds other than those on which the lower Court proceeded, and that it was not open to the respondent to have adjudicated by the appellate Court rights or causes of action which have been decided against the respondent in the Court below, and in respect of which he has filed no appeal or memorandum of objections. We are of opinion that this ruling is in favour of the respondent, and not against him. Now the contract which we have quoted clearly begins by stating that the quantity of goods to be supplied is 41,000 maunds. It then specifies that this quantity is to be supplied in instalments in nine months, the amount for each month being fixed. Then follows the clause which is in our opinion worded in somewhat defective English. The clause begins by stating that if there is a failure to adhere to the above deliveries, the defendant reserves the right to cancel the balance remaining undelivered during any one month. This is quite intelligible. The words then follow: "or accept the same." As it stands, these words are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 maunds shall be the total, than the excess supplied beyond the monthly quota was to be included in that 41,000 maunds, that is, we take the opposite view of the construction of the contract to the view which has been taken by the Court below. But we are of opinion that evidence is admissible on this point under the provisions of Section 92, proviso (2), Evidence Act, which states: The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. 9. Now the documents referred to in Section 92 are: Any such contract, grant, or other disposition of property, or any matter required by law to be reduced to the form of a document. 10. As regards the degree of formality, it is obvious that matters required by law to be reduced to the form of a document must be more formal than matters which are not so required. Similarly grants of dispositions of Immovable property, which require to be reduced to the form of a document, require more formality than matters which may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has not come today to Cawnpore. He has had fever since last 5 or 7 days. 14. Banwari Lal made some attempt to contradict the evidence of Mr. Inskip, but he broke down on the point of who signed the contract, as he alleged that Mr. Inskip had not signed, and when the contract was produced, Mr. Inskip showed his initials and identified them, and the witness then admitted that his allegation was incorrect. Mr. Inskip was positive on the point that Banwari Lal was not present when the contract was made at Cawnpore, and that is in our view correct. We therefore consider that the evidence of Mr. Inskip should be accepted, as it is not contradicted by any evidence from the plaintiff, Nand Kishore. This evidence clearly establishes that the view of the plaintiff as to the terms of the agreement between the parties is incorrect, and there was a distinct oral agreement that 41,000 maunds of bark would be supplied by the plaintiff and no more, and that any excess in any month should be included in this 41,000 maunds. The way in which Mr. Iftikhar Hussain, the Additional District Judge, has dealt with this matter is very unsatisfactory. He has not referred to the provisions of Section 92, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hopped bark because he had already purchased 2,000 maunds more. This indicates that the plaintiff thought 41,000 maunds was the maximum limit, but the reply of the defendant on 19th November 1930, was that they could not see their way to increase the quantities of cut babul bark supplied under the agreement. Learned Counsel laid stress on the final clause: You can however continue to send in supplies, but if they are in excess of the amount stipulated in the agreement letter we must reserve the right to pay for the excess supply at the rate ruling on date of arrival. 17. There is no suggestion here that the excess would not count towards the 41,000 maunds. On 17th December 1930 the defendant wrote to the plaintiff saying: Due to the continued trade depression we find we shall not be in a position to accept supplies in excess of the quantity mentioned in the contract during any one month. We must therefore insist on your adhering to the delivery periods as mentioned in the contract letter (letter on p. 27). 18. Again there is no suggestion that any excess should not count towards the total of 41,000 maunds. The same request was written by the defendant to the plaintiff on 18th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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