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Suit No. 42 of 1985, decided on 14th April 1986.

‑‑‑0. VII, R.2‑‑Contract Act (IX of 1872), S.2(h)‑‑Suit for recovery‑ ‑Breach of contract‑‑Evidence on record fully establishing contract, non‑supply of goods and breach of contract‑‑‑Due to defendants' failure to supply goods plaintiff had to incur extra expenditure‑by purchase of supply from local market‑‑Plaintiffs allowed damages in respect thereof but refused transportation charges for want of proof.

Abul Khair for Plaintiff.

Date of hearing: 14th April 1986.

The plaintiff has filed this suit for recovery of Rs. 1,03,802.83 against the defendant which is under liquidation. The plaintiff has obtained permission' from the Company Judge for filing this suit which is attached with the plaint. The plaintiff invited tenders in compliance of which the defendant submitted the offer to supply fresh milk, butter and cream. The contract document was signed between the parties and the offer made by the defendant was accepted. It is alleged that the defendant started delivery of the goods from 15‑8‑1971 but stopped the supply from 8‑11‑1972. Accordingly the plaintiff made alternate arrangement from its own farms for supply of these goods and incurred loss. After adjusting the security amount of Rs. 10,000‑and the unpaid bills which were lying with the plaintiff it has claimed Rs. 1,03,802. The defendants have not appeared. The plaintiff has examined P.W.1. who has repegted the same facts stated in the plaint and produced documents of contract, the claim submitted before the Official Liquidator and the notice issued to the defendant.

So far the contract, non‑supply of goods and breach of contract is concerned, it is fully established, from, the evidence brought of record. The question is whether the plaintiff is entitled to damage claimed by it. The plaintiff has relied on the contract which provides that in case the defendant fails to supply the goods the plaintiff would be entitled to get the supply from the Military Farms or obtain it from the local market. In case of diary produce substitutes they will be charged according to the specification provided in clause 6 of the agreement. It provides that powdered milk will be charged at A.S.C. stock book rate for payment plus transportation charges at public rate. Fresh /reconstituted milk issued will be charged at the highest farm rate of the station plus transportation charges at public rates. Fresh cream and butter will be charged at contracted rate plus 10% departmental charges and transportation charges at public rate. From the evidence and record produced by the plaintiff it seems that due to defendants failure to supply the plaintiff obtained 69,003 lbs. of fresh. milk and 23,100 Ibs. of whole powdered milk. The fresh milk has been charged at Re. 0.41 per lb. which is the highest farm rate and Rs. 2.84 peal lb. is the A.S.C. stock book rate for powdered milk. So far 10% departmental charges are concerned in respect of cream and butter except that it is mentioned in the agreement no further proof has been shown that the cream and butter were purchased by the plaintiff at higher rate. In these circumstances, in my opinion the damages in respect of butter and cream cannot be granted. Likewise, the claim ford transportation charge is without any proof and cannot be granted. The plaintiff has established the claim for Rs. 1,11,091.25. After adjusting the security deposit of Rs. 20,000 and Rs. 11,908.90 towards outstanding bills of the defendant, the plaintiff is entitled to Rs. 79,182.33. The suit is decreed for Rs. 79,182.33 with proportionate costs.

M.Y. H. Suit decreed.

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