TMI Blog1961 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, two in each civil suit. Certificate was also granted to the respondent; but he did not take steps in that behalf, and we are, therefore, concerned only with the appeals of Mahabir Prashad Rungta. The two suits were filed in the following circumstances: Rungta owns a colliery at Budhar in Madhya Pradesh. On October 30, 1950, an agreement was executed between Rungta and the respondent, Durga Datt. Durga Datt agreed to transport coal from the colliery to the railway station at the rate of ₹ 2-8-0 per ton for a period of two years commencing from November 11, 1950, to November 10, 1952. That agreement is Ex. P-1. The case of Rungta was that Durga Datt broke the contract from July 29, 1951, by stopping the work of transport. Durga D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng sundry amounts and allowing credit for ₹ 21,861-7-6, he claimed ₹ 26,139-11-0, as stated above. Durga Datt alleged that Rungta was guilty of breach of the contract, particularly of cls. (4), (5) and (8) thereof, which compelled him to rescind the contract. These clauses may be quoted here: (4) Petrol :-It will be arranged by party no. 1 himself but party no. 2 will help in time of need to get the petrol; the expenses incurred by party no. 2 for securing such petrol will be borne by party no. 1. If party no. 2 in spite of his best efforts cannot arrange for petrol then in such case party no. 1 will not be responsible for any loss in regard to transportation of coal. (5) Payment of Bills:-Party no. 2 will make payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e breach proceeded from him; (b) the inclusion of ₹ 7,500 in respect of 3,000 tons of coal said to have been transported to the railway yard but not loaded in the wagons; and (c) the award of, and in the alternative the rate of, interest. The main question in these appeals is, who was responsible for the breach of the contract ? The admitted position is that work stopped about the end of July, 1951. Previous to the closure of work, each party had written letters of protest to the other, Rungta complaining that Durga Datt had slowed his work and he was suffering loss, and Durga Datt complaining that lack of arrangements for petrol, failure to repair the road and the withholding of the money due to him were making it impossible for him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Judicial Commissioner held, on both the points, against Rungta, and in our opinion, rightly. Even if the presentation of the bills be regarded as a condition precedent to payment, it is clear enough that Rungta paid not the whole of the amounts due under the bills but, only small sums from time to time. Learned counsel for Rungta contended that Durga Datt, by receiving such payments and by not insisting on his rights, must be deemed to have waived payment in a lump sum under cl. (5). But no case of waiver was pleaded by him,, and the evidence, if any, cannot be looked into. In any event, an examination of the accounts between the parties discloses that payments were, in fact, withheld. Under the agreement, 10 per cent. of the bills was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to show that the quantity of coal transported from month to month was falling. An abstract of the quantities transported does not support this allegation. This abstract is of the quantity loaded in wagons. The figures are almost constant, except in one month (April). There were, of course, variations in the quantity of coal loaded in the wagons from month to month; but the evidence shows that some coal remained at the siding in heaps and was not loaded immediately. The variation in the quantity also might have been due as much to Durga Datt as to the colliery and its output. In our judgment, no inference can be drawn from the abstract, showing the quantities of coal loaded into the wagons, that Durga Datt had slackened work after May. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Durga Datt was entitled to rescind the contract, when the very important condition of the agreement was broken by Rungta. We confirm the finding of the Judicial Commissioner on this part of the case. This brings us to the inclusion of ₹ 7,500 on account of 3,000 tons of coal alleged to have been transported. The evidence on this part of the case is somewhat unsatisfactory. Fortunately for Durga Datt, some of the witnesses of Rungta admitted that besides coal which was loaded in the wagons, there were three large heaps of coal lying in the yard and that this coal was transported by Durga Datt. The estimate of Durga Datt was 3,000 tons. That is no more than a mere guess. A railway official was examined in the case, and he stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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