UNION OF INDIA v. RAM NARAIN DHAWAN — 1965 DIGILAW 42 (DEL)

S. K. Kapur, J. ( 1 ) THE two regular first appeals arise out of a suit filed by Ram Narain against the Union of India for recovery of Rs. 37,131/10/9 and is directed against the Judg Shri Pritam Singh, Commercial Sub Judge, 1st Class, Delhi, dated 24th June 1955 granting Ram Narain Plaintiff a decree for Rs. 36,764/10/9. Regular First Appeal No. 128-D of 1955 has been filed by Ram Narain plaintiff praying that the decree of the trial Court be modified and he be granted interest on the sum of Rs. 36,764/10/9 at the rate of 6 per cent per annum from the 27th of February 1952 (the date of presentation) of the plaint ) to the date of payment or realisation. Regular first appeal No. 129-D of 1955 is by the Union of India against the decree granted by the trial Court in favour of the plaintiff. ( 2 ) THE dispute arises oat of the agreement Exhibit D. 58 admittedly entered into between the plaintiff and the defendant for supply of milk (fresh standard) to Field Service Depot, Jammu, for the period from 1st of May 1951 to the 30th of September 1951. The supply was to be made either at Field Service Depot, Jammu, or direct at hospital Lines with in a five miles radious of G. P. 0. Jamma. The other terms of the contract relevant to the present controversy are contained in clauses (2), (5) and (II) of the Special Conditions governing the contract and in the schedule annexed to the said contract. Clause (2) inter aha provides that the supplies will be made at such times and in such quantities as the A. S. C. Officer concerned or his representatives may direct. Clause (5) about which there has been a lot of controvesy reads "if desired, the fresh milk will be supplied in two deliveries (one morning and the other evening ) at the times as ordered by Officer operating the contract. " Clause (II) authorises the Officer operating the contract, to purchase from other sources, at the suppliers risk and expense, the articles agreed to be suplied or such substitutes therefor as have been shown in the schedule (1. " Clause (II) authorises the Officer operating the contract, to purchase from other sources, at the suppliers risk and expense, the articles agreed to be suplied or such substitutes therefor as have been shown in the schedule (1. A. F. Z. 2121) or any other substitutes that may be sanctioned by the Commander 21 L of C. AREA from time to time in case of failure on the part of the contractor to supply the contracted goods. The schedule again provides that thsupplies will be made at such times and in such quantities within the limits specified therein as ordered by the Officer operating the contract or his representative. It also sets out the approximate quantities of milk required under the contract, the rates and the authorised substitutes that can be purchased by the Government. In terms of the said schedule the substitutes for the contracted articles could be procured from the Government stocks at the risk and expense of the Contractor. ( 3 ) AS we have said above the time for supply had to be determind by the Officer operating the contract and accordingly a demand note for 1st of May 1951 (Exhibit P. 41) was issued requiring the Contractor to supply milk as under :-The plaintiff went on supplying the milk to the extent of quantities demanded and at the time specified by the Officer operating the contract from 1st of May, 1951 to 24th of May 1951. There were some variations in timings up to the 25th of May 1951 a!so but the supplies continued to be made by the plaintiff. On 24th of May 1951 the time for supply of milk with effect from 26th May 1951 was fixed as under : -In the letter dated the 24th of May, 1951, Exhibit P. 4/a, fixing time as aforasaid, it was also stated that fresh milk will not be accepted after 06. 00 hrs. for the first 07. 00 hrs. for the second and 20. 00 hrs. for the third lot. The plaintiff was dissatisfied with the change in time and did not supply any milk from 25th of May 1951 to 28th of May 1951. 00 hrs. for the first 07. 00 hrs. for the second and 20. 00 hrs. for the third lot. The plaintiff was dissatisfied with the change in time and did not supply any milk from 25th of May 1951 to 28th of May 1951. The plaintiff approached the Commander, Army Service Corps who changed the timings for the morning deliveries from 4 A. M. and 5 A. M to 5 A. M. and 6 A. M. and this change became effective for supplies from 29th May 1951. From 29th May to 6th July 1951 the plaintiff did not supply milk required to be supplied at 5 A. M. but supplied the requisite quantities which he was asked to deliver at 6 A. M. and 5. 30 P. M. Dissatisfied even with the above timing the plaintiff approached higher authorities and the time was again changed from 7th of Jully as under :-The plantiff thereafter went on supplying milk as desired by the defendant. It may be pointed out that two hours of grace were allowed to the plaintiff for supply of milk. For instance supply to be made at A. M. could be made by 6. A. M. and the supplies required at 5 A. M. could be made up to 7 A. M. It has been admitted by Thakar Singh P. W. I that because of the two hours grace period 5. 30 A. M. supplies could be made by 7. 30 A. M. Since one of the argument made at the bar on the behalf of the plaintiff is that he was served with no demand notice with respect to the supplies to be made on 26th of May 1951 it would be appropriate to point out that by letter dated the 25th of May 1951 Exilibit D. 6/a the plaintiff informed the defendant that since it was impossible for him to make supplies at 4 A. M. and 5 A. M. he will not at all be responsible for non-supply of milk and that the time for first delivery should be extended so that he could continue to supply the milk. The learned counsel for the plaintiff would like us to read this letter to mean that the plaintiff declined to supply milk at 4 A. M. but there was no refusal to supply at 5-30 P. M. It is also necessary to set out certainfacts regarding the issue of tinned milk by the Government stores on account of failure of the plaintiff to supply the milk from 25th of May 1951 to 28th May 1951 and partially from 29thofmay195lto6thof July 1951. Mention of these facts has become necessary as one of the contentions raised by the learned counsel for the plaintiff is that the Government was obliged to minimise damages even if there was a failure on the part of the plaintiff to supply milk and, therefore, they should not have issued tinned milk which was much more expensive but should have purchased fresh milk from the market. It has further been argued that the only substitute that could be purchased by the Govt. was fresh milk and not tinned milk. We have already pointed out that the substitutes were provided for in the Schedule and by the special conditions governing the contract it was agreed that in the event of failure on the part of the plaintiff to supply the contracted articles for any cause whatsoever those articles or their substitutes could be purchased at the risk of the plaintiff. In the plaint this matter has been referred to only in paragraph 13 (b) and (d) In the said paragraph no grievance has been made that tinned milk was not an authorised substitute for the fresh milk contracted to be supplied and the only grievance made is (a) that the supply of tinned milk was not necessitated on account of failure of the plaintiff and (b) that frash milk from other sources would have been cheaper than the tinned milk and therefore the Government should have reduced the risk of the plaintiff to a nominal amount by purchasing fresh milk rather then issuing tinned milk. The practice followed by the military authorities was to forward all the risk proformas to the plaintiff wherein the quantity of tinned milk issued and the extent of risk imposed on the plaintiff on account of short supplies was set out. The practice followed by the military authorities was to forward all the risk proformas to the plaintiff wherein the quantity of tinned milk issued and the extent of risk imposed on the plaintiff on account of short supplies was set out. In reply to such proformas the plaintiff addressed various letters to the authority concerned but in none of those did he raise any dispute either about the quantity of tinned millk: issued or about the substitite being unauthorised. ( 4 ) REGARDING the contention of the respondent plaintiff that they could have purchased fresh milk from other sources we find that in the aforesaid letters it has been admitted by the plaintiff that fresh milk in this bulk was not available in the local market daily. In these circumstances the plaintiff filed a suit for revovery of Rs. 37,181/10/9 alleging that the price of the total quanties of milk supplied was Rs. 1, 70, 814/8. 00 while the defenda. nt had only paid Rs. 1, 13, 907/12. 00 and had wrongfully wit held the balance. The amount withheld comprised two items (1) Rs. 2. 0,142/11/10 on account of departmental issue of tinned milk in lieu of the milk tendered by the plaintiff but rejected by the officer operating the contract and (2) Rs. 36,764/10/9 on account of difference in the agreed rate of supply of milk and the cost of tinned milk departmentally issued by the Government. The plaintiff claimed only the second item of Rs. 36, 764/10/9 besides Rs. 367. 00 on account of interest at the rate of 6 per cent per annum. The trial Court granted a decree to the plaintiff for Rs. 36,764/10/9 as the claim for interest was stated by the trial Court to have been given up. In the grounds of appeal filed by the plaintiff, however, it has been stated, by the plaintiff that the claim for interest pendente lite and interest up to the date of payment was never given up. Mr. Bishamber Dayal, learned counsed for the defendant submits that the Government was justified in making risk purchases in as much as the plaintiff had taken absolute obligation to supply milk at such time as may be required by the Officer operating the contract. Mr. Bishamber Dayal, learned counsed for the defendant submits that the Government was justified in making risk purchases in as much as the plaintiff had taken absolute obligation to supply milk at such time as may be required by the Officer operating the contract. He further submits that the plaintiff having been properly and validly called upon to supply milk at 4 A. M. , 5 A M. and 5-30 P. M. he was liable for damages incurred by the Government in making risk purchases. He also submits that even if demand of milk at 4. A. M. is held to be unreasonable the plaintiff was liable for non-supply of the quantities required at 5 A. M. and 5-30. P. M. He contends that the plaintiff did supply milk from 29th of May 1951 at 6 A. M. and there was nothing to justify his stand that he could not supply it at 5 A. M. from 29th May. 1951 particularly when he had two hours of grace available to him. Regarding the argument of the plaintiff that in the absence of any demand which the defendant was required to make for every day s requirement the respondent had no liability for demages, Mr. Bishambar Dayal s case is that the plaintiffs, representative used to go to the defendants office every evening and collect the demand note for the next morning but since noboly turned up on the 26th 27th and 28th of May 1951 the demand notes were sent by registered post. He further submits that the plaintiff having declined to make any supplies by his letter dated the 25th of May 1951, Exhibit D 6/a already referred to above, it was not necessary to issue any demand notes at all. Mr. Bishamber Dayal also contends that Govenment was justified in asking the plaintiff to supply milk three times a day and clause (5) in the Special conditions governing the contract providing that milk will be supplied in two deliveries (one morning and the other evening) has to he read along with clause (2) and the Schedule to the contract which provide that the milk. will be supplied in such quantities and at such times as maybe ordered by the Officer operating the contract or his representatives. will be supplied in such quantities and at such times as maybe ordered by the Officer operating the contract or his representatives. According to him reading these provisions together clause (5) would mean nothing more than that the defendant could not require the plaintiff to supply the entirequantity either in the morning or in the evening but it could split up the morning supply in different lots and asking the plaintiff to supply milk twice in the morning was not a violation of clause (5 ). ( 5 ) MR. Sawhney learned counsel for the plaintiff on the other hand contends that demanding milk at 4. o clock and 5 o clock in the morning was really calling upon the plaintiff to perform an impossible feat which could not have been contemplated by the parties and therefore the plaintiff was justified in declining to make any supplies. He further submits that the plaintiffs office was very near the office of the officer operating the contract and the demand notes could have been sent to the plaintiff by the letter as in view of section 35 of the Sale of Goods Act it was for the defendant to demand delivery of the goods. According to Mr. Sawhney a demand note was particularly necessary in this contract because the quanties of milk required varied from day to day and were also different for each time. He further submits that in view of clause (5) of the Special conditions of contract already referred to the plaintiff could be asked to supply milk twice a day and consequently there was no breach of contract in plaintiff s not supplying milk required at 5 A. M. from 29th of May 1951 to 6th of July 1951. It is not disputed, however, that the plaintiff did supply milk thrice a day up to the 24th of May 1951 and from 7th of July 1951 to 30th of September 1951. According to Mr. Sawhney milk was supplied thrice a day only as a matter of grace but the plaintiff was not obliged to do so. Mr. Sawhney also submits that the defendant did not minimise the risk, which it could, by purchasing fresh milk from the market and that the Government was not justified in issuing milk in lieu of fresh milk. Sawhney milk was supplied thrice a day only as a matter of grace but the plaintiff was not obliged to do so. Mr. Sawhney also submits that the defendant did not minimise the risk, which it could, by purchasing fresh milk from the market and that the Government was not justified in issuing milk in lieu of fresh milk. This, however, is not disputed that in case the Government was justified in issuing tinned milk the amount would be as calculated by the Government in accordance with the proformas. We have gone througn the entire evidence and we are of the view that the officer operating the contract was not justified in asking the plaintiff on the 24th of May 1951 to supply milk at 4 A. M. in the morning. No time having been fixed for supply in the contract and the fixation of time having been left to the officers operating the contract it has to be implied that the parties intended that the time fixed would be reasonable and that the plaintiff will not be called upon to perform an impossible feat of supplying such large quantity at such a short notice and at such an odd hour. the quantity to be supplied was fairly large and as stated by Thakar Singh P. W. I, milk had to be obtained from distant villages and could not be available by 2 A. M. to enable the plaintiff to supply the milk in Jammu by 4 A. M. We, therefore, hold that the officer operating the contract was not justfied in fixing 4 A. M. As the time for supply of milk and the said demand was neither reasonable nor in accord with the contract. The plaintiff would have, therefore, no responsibility for non-supply of milk required to be supplied at 4 A. M. from 25th May 1951 to 28th May 1951. Moreover it has been admitted by Lt. Col. Bawa Sunder Singh D. W. I that the Contractor used to be given 48 hours notice for supply of milk on any particular day. The plaintiff would have, therefore, no responsibility for non-supply of milk required to be supplied at 4 A. M. from 25th May 1951 to 28th May 1951. Moreover it has been admitted by Lt. Col. Bawa Sunder Singh D. W. I that the Contractor used to be given 48 hours notice for supply of milk on any particular day. In this case the notice requiring the plaintiff to supply milk at 4 A. M. , 5 A. M. and 5-30 P. M. was given on the 24th of May 1951 at 8 P. M. This was not a sufficient notice even according to Bawa Sunder Singh D. W. I for supply to bemade on 25th May 1951. The plaintiff had, therefore, no responsibility for non supply of any milk on the 25th of May, 1951. Regarding non-supply on the 26th May 1951 there is nothing on the record to show as to what was the risk imposed on the plaintiff. In the letter dated 7th June 1951, Exhibit D. 50 written by the plaintiff there is a mention that a proforma imposing a risk of Rs. 2670/12/3 on the plaintiff was sent to him, but the said proforma is not on the record. The learned counsel have not been able to point to any evidence on the record showing the damages suffered. Mr. Bishamber Dayal suggested that no amount appeared to have been retained by the Government for non-supply on the 26th May 1961. The total of the various items in the proformas on record seems to support Mr. Bishamber Dayal. In this view, we would not be concerned with non-supply on the 26th May 1951. We have already held that the time for supply could be fixed by the officer operating the contract or his representative and so long as the time fixed was reasonable the officer would be acting within the four comers of the contract. The plaintiff did supply milk at 6 A. M. from 29th May to 6th July 1951. If he could do so we fail to see why he could not supply at 5 A. M. with two hours of grace. The plaintiff did supply milk at 6 A. M. from 29th May to 6th July 1951. If he could do so we fail to see why he could not supply at 5 A. M. with two hours of grace. The change in timings for supplies on 27th and 28th May had been communicated to the plaintiff on the 24th of May 1951 by letter Exhibit P. 4/a. Evidence of Bawa Sunder Singh D. W. 1 shows that 48 hours notice was being given and treated as sufficient notice by the parties. That being so we hold that sufficicent notice regarding change in timings had been given for these two days. It has been contended by the plaintiff that may be so but the defondant had to give sufficient notice to the plaintiff indicating the quantities required, particularly because the quantities varied from day to day. There is no force in this contention so far as the failure to supply milk at 5 A. M. is concerned because by letter dated 25th May 1951 Exhibit D. 6/a the plaintiff had expressed an mention that he will not supply any milk at 5 A. M. In the circumstances the defendant would be justified in not sending any demand to the plaintiff for supply of milk at that time. The plaintiff having himself declined to carry out the contract he cannot escape damages on tha ground that delivery was not demanded. The plaintifl would have been, but for lack of proof of damages liable for nonsupply of milk at 5 A. M. on 27th and 28th May. It has been frankly conceded by the learned counsel for the defendant that there is nothing on the record to show as to how much damages were suffered by the defendant for this omission on the part of the plaintiff. That being so the plaintiff cannot be held liable for any damages for non-supply at 5 A. M. Again there is nothing on the record to show as to how much damages were suffered bythe defendant for non-supply of milk by the plaintiff at 5-30 P. M. on 27th and 28th May 1951. The plaintiff will, therefore have no liability for non-aupply of milk on these two days at 5-30 P. M. as well. The plaintiff will, therefore have no liability for non-aupply of milk on these two days at 5-30 P. M. as well. ( 6 ) WE may point out that there is an additional reason why the plaintiff would have no responsibility for non supply of milk on these two days at 5. 30, P. M. and that is that by letter dated 25th May 1951. Exhibit D. 6/a the plaintiff did not decline to supply milk in the evening. Consequently in the absence of any demand of delivery by the defendant they could not hold the plaintiff liable for any breach. ( 7 ) THAT takes us to the question of liability of the plaintiff for non-supply of milk from 29th of May 1951 to 6th of July 1951 at 5 A. M. We have already held that fixation of time for delivery at 5 A. M. was legal and vaild. The plaintiff, therefore, cannot succeed on the ground that in fixing time at 5. A. M. the officer was acting unreasonably. The learned counsel for the plaintiff then contends that under clause (5) of the special Conditions attached to the contract the plaintiff could be asked to supply milk only twice. That being so, submits the learned counsel, there would be no breach of contract in not supplying the milk at 5 A. M. We regret we are unable to agree. All that clause (5) requires is that the milk will be supplied in two deliveries (one morning and the other evening) at the time ordered by the Officer operating the contract. Supply of milk is not like supply of one articles which the plaintiff would take at a fixed time and deliver it to the defendant. It is, if we may use that expression, a process. The plaintiff had to take large quantities of milk to the place of delivery in cans, the milk had to be tested from each can before taking delivery from the plaintiff and the defective milk returned. The milk contained in the plaintiff s container had then to be transferred into the containers of the depot concerned. The plaintiff had to take large quantities of milk to the place of delivery in cans, the milk had to be tested from each can before taking delivery from the plaintiff and the defective milk returned. The milk contained in the plaintiff s container had then to be transferred into the containers of the depot concerned. All that would involve a long process there would in these circumstances, be nothing wrong or against the terms of the contract in spreading the delivery, over a certain period and in asking for it in two instalments so long as it was not insisted that the entire milk should be supplied in the morning. or in the evening the authorities would not be acting against the terms of the contract. In any case it is clear from the record that that is how the parties understood the contract. From the very first day the plaintiff was asked to deliver milk in three instalmests, two in the morning and one in the evening, and the plaintiff did suply all the there instalments right up to the 25th of May 1951 and thereafter again from 6th of July 1951. The learned counsel for the plaintiff submits that that was. being done not as a result of any legal obligation but as a matter of grace. The. record of. the case, however do not lend support to this contention of the learned counsel for the plaintiff, never did plaintiff when supplying milk, point out to the defendant that there was no such obligation to supply milk thrice a day. It was only in June 1951 and thereafter that the plaintiff for the first time raised the contention that two deliveries were sufficient performance of the terms of the contract. Reference in this connection may be made to the plaintiff s letter dated the 20th of June 1951, Exhibit 6. 52 and his letter dated the 9th of July 1951, Exhibit D. 56. That clearly appears to be anafter thought and we are of the view that parties understood the contract, to mean that the defendant could spread over the morning delivery or. as a matter of that the evening delivery into different instalments. 52 and his letter dated the 9th of July 1951, Exhibit D. 56. That clearly appears to be anafter thought and we are of the view that parties understood the contract, to mean that the defendant could spread over the morning delivery or. as a matter of that the evening delivery into different instalments. We are conscious of a settled rule that where the parties have reduced their contract to writing the judge must at least, as a general rule confine himself to the actual wording of the instrument. Normally the Courts of law have to carry into effect what a party to a contract has written, not what it may be surmised, on however probable grounds, that he intended to have written. A written contract has to be construed accorrding to the strict plain common meaning of the words themselves. The understanding of of the parties will not generally speaking override plain and unambiguous language which they have used to express the contract. But words and phrases used in particular contracts when ambiguous or susceptible to two meanings may have to be interpreted in accordance with the meaning with which they have been invested by the parties. It is not unknown that parties in their agreement may furnish their own glossary of terms and use expressions which are unknown to lexicographers. Where evidence shows that both the parties used a particular word in a particular sense we would not be justified in not giving effect to that intention of the parties. That being so we are of the view that the parties did understand the contract to mean that the defendant could insist on deliveries by instalments. The conduct of the parties provides ample proof for the same. ( 8 ) IT has not been argued on behalf of the plaintiff that no demand of delivery was made for these days, i. e. from 29th of May to 6th of July 1951. The plaintiff must, therefore, beheld liable for demages for non-supply of milk at 5. A. M. for thisperiod. We have already discussed above that the plaintiff never made a grievance in the plaint that tinned milk was not an authorised substitute. He also did not raise any such dispute in the various letters written by him in reply to the proforms sent to him. A. M. for thisperiod. We have already discussed above that the plaintiff never made a grievance in the plaint that tinned milk was not an authorised substitute. He also did not raise any such dispute in the various letters written by him in reply to the proforms sent to him. We have also discussed above that fresh milk in that quantity was not available as admitted by the plaintiff in his various letters sent in reply to the proformas. In any case if the tinned milk was an authorised substitute the defendant would be entitled to issue the same in the event of non-supply. In this view the plaintiff must be held liable for extra expenditure incured by the defendent due to non supply of milk from 29th of May. 1951 to 6th of July 1951, at 5 A. M. the loss suffered by the defendant due to this non-supply was, therefore, rightly with held. The suit must, however, be decreed in favour of the plaintiff for the amount wrongly with held by the defendant for non-supply on the 25th, 27th, and 28th of May 1951. This amount according to the proformas on the record comes to Rs. 8,084/9/2. ( 9 ) IN the result the appeal succeeds to the extent that the amount decreed in favour of the plaintiff would be Rs. 8,084/9/2. In the circumstances of the case there will be no order as to costs. ( 10 ) REGARDING the appeal of the plaintiff we are of the view that the plaintiff should get interest at the rate at 6 per cent per annum on the amount decreed in his favour from the date of the institution of the suit to the date of payment.