GOVINDA BHAT, CJ. ( 1 ) THESE are two appeals by a common plaintiff against the judgment and decrees passed in OS. 8 of 1969 and OS. 6 of 1969, on the file of the court of the Civil Judge, Mysorei dismissing the plaintiff's suite for recovery of damages from the respondent-defendant for alleged broach of contracts. ( 2 ) THE facts are not disputed. Briely stated, they are The plaintiff. M. B. Desai and Bros. Shahapuri. Kolhapur. is a registered firm carrvine on the business of manufacturing and selling fertilisers. The defendant. Coorg and Mysore Coffee Cov. Ltd. . Mysore, is a publie limited company, having it? registered office at Mysore which carries on business in fertilisers on 28-2-1966, the defendant company entered into a contract with the plaintiff form for sale of 400 toppes of superphosphate at Rs 268-31 per tonne f o. r. Munirabed Rlus freight from Munirabad to Kolhapur. That contract is evidenced by a Sale Note No. 116 marked as Ext P2 in the case As per the said contract the defendant compnay dupplied 162 tonnes and 200 Kgs of surrerphosphte and there remained a balance quantity of 237 tonres and 800 Kgs yet to be supplied. ( 3 ) ON 29-4-1966. the defendant contract ot sell another 400 tonnes of superphosphate at Rs. 275-50 per tonne f. e. r Munirabad plus freight from munirabad to Kolhapur That contract is as per Sale Note No. 252 marked as Ext. P7 in the case. The defendant did not supply any quantity out of the fertilisers agreed to be supplied under Ext. P7. On 23-6-1966. the defendant company cancelled the contract with respect to the outstanding order for 637 torses 800 Kgs of Sunperphosphate, as per their letter, which is marked as Ext. P9. The defendant relied an condition Nos. 1 and 9 of their Sale Notes for cancellation of the contracts. The plaintiff wrote to the defendant company stating that the defendant. is not entitled to cancsl the contracts and that it is bound to make supplies as per the agreements. It is relevant to state that the plaintiff had written to the defendant company before the repudiation of the contracts, to supply the fertilisers in accordance with the terms of the contracts. In their letter, Ext. is not entitled to cancsl the contracts and that it is bound to make supplies as per the agreements. It is relevant to state that the plaintiff had written to the defendant company before the repudiation of the contracts, to supply the fertilisers in accordance with the terms of the contracts. In their letter, Ext. P9, the defendant company has stated that the market rate of superphosphate on the date of the cancellation of the contracts was Rs. 336-60 par tonne f. o. r. Munirabad. ( 4 ) AFTER issuing a notice demanding the payment of damages, the plaintiff instituted two, suits, viz, OS. 6 and 8 of 1969 in the Court of the Civil judge at Mysore. OS. 6 of 1969 was with respect to the contract evidenced by Extp2 and OS. 8 of 1969 was with respect to the contract evidenced by ext. P7. In OS. 6 of 1969, the plaintiff sued for recovery of Rs. 16,253-02 as damages and in OS. 8 of 1969 the plaintiff sued for recovery of a sum of rs. 24,440 as damages. The defendant-company contended in both the suits that under the two Sale Notes, the company had the right to cancelthe contract at any stage without assigning any reason. Condition 9 of Exts P2 and P7 WPS relied upon. The further contention of the defendant was that the plaintiff has not proved that it has suffered any actual damages consequent on the cancellation of the contracts and therefore, the plaintiff cannot claim damages on the basis of the difference between the contract rates and the actual market rates. ( 5 ) THE plaintiff could have instituted one suit for recovery of damages in respect of both the contracts as the parties are the same although the causes of action are different. The two suits were clubbed together and common evidence was adduced. On the pleadings, the learned trial Judge framed the following 4 issues which are common to both the suits : (i) Is the plaintiff a firm and registered under the Indian Partnership Act? (ii) Is the cancellation of the suit contract by the defendant not valid? (iii) If the cancellation of the suit contract by the defendant is not valid. what, if any, is the damages to which the plaintiff is entitled? (iv) To what relief is the plaintiff entitled?issue No. (i) was answered in the affirmative. (ii) Is the cancellation of the suit contract by the defendant not valid? (iii) If the cancellation of the suit contract by the defendant is not valid. what, if any, is the damages to which the plaintiff is entitled? (iv) To what relief is the plaintiff entitled?issue No. (i) was answered in the affirmative. On Issue No. (ii) which is the main issue the leprned Civil Judge after elaborate discussion held that Condition No. 9 in Exts. P2 and P7 is valid and that the defendant companv had a right thereunder to cancel the contracts On Issue No (iii) the learned Civil Judge was of the view that it is unnecessary for the plaintiff to prove that it has suffered any damages consequent on the cancellation of the contracts by the defendant; but in view of his finding on issue No. (ii) he held that the plaintiff is not entitled to claim any damages. ( 6 ) IN the result, both the suits were dismidsed with codts in its writtn statement, the defendant-company had contended that the company had to get its supplies of fertilisers from Chamundi Chemicals and Fertilisers Ltd. , and since that company was willing to sell only at the current market rates, the defendant-company was obliged to cancel the contracts. That part of the contention was not urged by the Counsel for the defendants at the trial as noted by the learned Civil Judge in para 23 of his judgment. ( 7 ) IN these appeals Sri S. G. Sundaraswamy, learned Counsel for the appellant, urged that there being concluded contracts between the parties as evidenced by Exts. P2 and P7, Condition No. 9 which enables one of the parties to cancel the concluded contracts at its whim and fancy is totally repugnant to the contract and therefore has to ba rejected altogether. He submitted that the learned Civil Judge was in error in the view he has taken that Condition No. 9 entitled the defendant to cancel the contracts. The main question for determination in those appeals are: (2) Whether Condition 9 of Exts. P2 and P7 is valid in law? (3) If the said condition has to be disregarded as being totally repugnant to the contract, what is the amount of damages to which the plaintiff is entitled? The main question for determination in those appeals are: (2) Whether Condition 9 of Exts. P2 and P7 is valid in law? (3) If the said condition has to be disregarded as being totally repugnant to the contract, what is the amount of damages to which the plaintiff is entitled? as stated earlier, the terms of the two contracts, so far as they are the same and it is sufficient if we reproduce the terms of one of the contracts. Ext. P7 reads thus :" The Coorg and Mysore Coffee Co. (1937) Ltd. (Incorporated in Mysore State) Reg. Office: Metagal Post, kolhapur Sales Office: Munirabad R. S. , PO. (Raichur Dist) for conditions of sale please see overleaf and mention the number of Sale Note in your correspondence. Kolhapur d. 29-4-1966 name: M/s. M. B. Desai and Bros, Shahapuri, Kolhapur sale Note: No. 252. Produce : Superphosphate. Composition; 16 per cent Phosphoric acid. Quantity: 24 Wagons or 400 tonnes (four hundred tonnes ). Price Rs. 275-50 per tonne f. o. r. Munirabad plus freight from Munirabad to Kolhapur. Sales Tax: Packing: 100 Kg. packing with Polythene lines. Delivery: May-June, 1966. Despatch instructions: Despatch may be commenced immediately after the quantity already booked is completed at 6 wagons per week. Other terms: R. Rs and Bills through B. K. through your Kolhapur Office. I We confirm the order as per this sale note and Davment will be made against R. R. through B. K. through Kolhapur Office. For the Coorg and Mysore Coffee C. (1937) Ltd. , sd/- managing Director. Order booked by: sd/- signature of Customer. CONDITIONS FOR SALE (1)The Company will not be liable in any way for inability to carry out or delay in any contract in whole or in part consequent on shortage of wagon supplies to raw materials or finished products, strikes, labour shortage, fire, breakdown of machinery or any reason due to force majeure or cause over which it has no control. (2) It is understood that if at any time before delivery of the goods, a new or increased rate of import duty or taxation whether levied by the Govt of India or by a Provincial Govt or by the Govt of an Indian state is imposed upon such goods or any part of them, or the Govt of india by its notification increases the selling price of the goods or the existing tariff valuation applying to such goods is increased, them the sellers have the right to recover from the buyers as an addition to the contract price, a sum equal to the amount which has been paid by the sellers on account of the new duty or taxation, as the case may be. (3) The sale is made subject to the current railway freight, any increase at the time of despatch will be on buyer's account. (4) The amount of Sales Tax, if any payable on the sale of goods, shall be on the buyer's account and the seller shall have the right to recover forthwith from the buyer, in addition to the contract price, a sum equal to the amount which has been paid and/or which is or may become payable by the seller on account of such tax. (5) Loss or damage in transit is to be on buyer's account. (6) In respect of any dispute arising under this contract the Courts within the State of Mysore will have jurisdiction at the option of the seller. (7) All orders booked by respressntatives are provisional only until confirmed by Head Office. (8) Interest at 12 per cent per annum on daily balances will be charged one week after delivery for the entire order or for part. (9) Company reserves the right to cancel orders without assigning any reasons. "ext. P2 contains similar conditions. Ext. P9, the letter off the defendant company cancelling the contracts reads thus :dear Sir, as per the order of the Managing Director for the Coorg and mysore Coffee, Co (1937) Ltd. , we have to inform you as follows :- due to unforseen circumstances we regret, we are forced to cancel all outstanding bookings of superphosphate as per Clauses 1 and 9 of our Sale Note. ( 8 ) WE would therefore request vou to please note that the outstanding order of 637-800 tonnes of superphosphate is hereby cancelled. ( 8 ) WE would therefore request vou to please note that the outstanding order of 637-800 tonnes of superphosphate is hereby cancelled. The present rate of superphosphate is Rs. 336-60 f. o. r. Munirabad. " although in Ext. P9. the defendant company relied on Condition 1 the same was not pressed into service either before the Court below or in this court. Reliance was entirely reared on Condition 9. Therefore, the sole question for consideration is whether Condition 9 is valid or it has to be disregarded as being repugnant to the contract. In support of his contention sri Sundaraswamv relied on a number of authorities. ( 9 ) IN Chotelal Lalubhai v. Chamvsey Umersey, AIR. 1023 Bom. 75. the plaintiffs had agreed to sell 25 bales of Japanese yarn to the defendants. The contract. inter alia contained a stipulation entitling the seller to cancel the contact. The buyers (defendant) having failed to take delivery of the goods offered and repudiated the contract, the plaintiffs sued for recovcry of damages. The defendants relied on the term in the contract entitling the sellers to cancel the contract and contended that there was no valid contract. Dealing with the term of the contract, Mulla, J. , as he then was, observed that such a clause does not destroy the mutuality necessary for the formation of a contract. Such a stipulation conferred a right on the party to determine a contract if it could assign good reason for so doing. The next decision relied on is Maddala Thathiah v. Union of India, AIR. 1957 Mad. 82. In that case the facts were: The General Manager of the Southern Rly invited tenders for the supply of Jaggery to the railway grain shops. Para 2 of the tender set out the quantity required and described dates of delivery. There was a note in that para that the administration reserved the right to cancel the contract at any stage during this tenure of the contract without calling up the oustanding on the unexpired portion of the contract. " Under para 8, the successful tenderer was required to pay security deposit towards proper fulfilment of the contract. Para 9 stated that a formal order for supply would be placed after the security deposit referred to in para 8 was made. " Under para 8, the successful tenderer was required to pay security deposit towards proper fulfilment of the contract. Para 9 stated that a formal order for supply would be placed after the security deposit referred to in para 8 was made. Muddala Thathaiah submitted his tender for supply of 14,000 maunds as mentioned in the tender and by the letter dt. January 29, 1948, the Depulty General Manager accepted the tender atating that the official order would be placed on the respondent on receipt of the remittance of security. In his letter d| February 16. 1948, the Deputy general Manager reiterated the acceptance of the tender subject to the respondent's acceptance of the terms and conditions printed on the reverse of that letter, under which 3,500 maunds each were to be delivered on march 1, March 22, April 5, and April 21, 1948 respectively. At the end of the terms and conditions was a note that the administration reserved the right to cancel the contract at any stage during the tenure of the contract without calling upon the outstandings on the unexpired portion of the contract. By his letter dated March 8, 1948, the deputy General Manager informed the respondent that the balance quantity of jaggery outstanding on date against the order dt. February 16, 1948, be treated as cancelled and the contract closed. In the suit instituted by maddala Thathiah for the recovery of damages resulting from breach of contract, the Union of India relied by way of defence on the stipulation in the contract that the railway was at liberty to terminate the contract at any stage. Ramaswami Gounder, J. , sitting on the original side of the high Court held that the condition was valid and entitled the defendant to cancel the contract. In the appeal before the Divn Bench, it was urged that if the disputed clause is to confer on the Deft the right to cancel a concluded contract before the contract was performed in its entirety, the clause would be repugnant to the contract and therefore, it should be disregarded. The decision of the Judicial Committee of the Privy Council in Forbes v. Git, AIR 1921 FC. 209. was relied upon. The decision of the Judicial Committee of the Privy Council in Forbes v. Git, AIR 1921 FC. 209. was relied upon. The Privy Council has stated in the said decision that if in a deed an earlier clause is followed by the later clause which destroys altogether the obligation created by the earlier clause, the later clause has to be rejected as repugnant and the earlier clause prevails. Rajamannar, cj. , who delivered the judgment of the Bench, after an exhaustive consideration of the authorities including the judgment of Mulla, J. , in Chatelal lalubhai's case (1), held that the clause is void and unenforceable. The judgment of the Madras High Court was taken up in appeal before the supreme Court. The judgment of the Supreme Court is in Union of India v. Maddala Thathiah. The Supreme Court confirmed the decree of the] High court and dismissed the appeal; but it rested its decision on the ground that on the true construction of the contract, the condition mentioned in Note 2 of the tender referred to a right in the defendant to cancel the agreement for such supply of jaggery abqut which no formal order had been passed by the Deputy General Manager with the respondent and did not apply to such supplies of jaggery about which a formal order had been placed specifying definite amount of jaggery to be supplied. The Supreme Court also observed that once an order was placed that order amounted to a binding contract making it incumbent on the plaintiff to supply jaggery in accordance witn the terms of the order and also making it incumbent on the Deputy general Manager to accept delivery of jaggery in pursuance of that order. The Supreme Court did not accept the contention of the Union of India that Note 2 empowered the Deputy General Manager to cancel the contract in respept of jaggery for which a formal order for supply had been placed. The Supreme Court did not state expressly whether the proposition of law as stated by Rajamannar, CJ. , is correct or not. In Pollock and Mulla's Commentary on Indian Contract and Specifie relief Acts, 9th Edn by Jeevan Lal Kapur, Retd Judge of the Supreme court (1972) Edn) published after the judgment of the Supreme Court in Union of India v. Maddala Thathiah, (1964) 3i SCH. 774. , is correct or not. In Pollock and Mulla's Commentary on Indian Contract and Specifie relief Acts, 9th Edn by Jeevan Lal Kapur, Retd Judge of the Supreme court (1972) Edn) published after the judgment of the Supreme Court in Union of India v. Maddala Thathiah, (1964) 3i SCH. 774. the statement of law as made by Rajamannar, CJ. , has been accepted as laying down the correct law. ( 10 ) THIS is what has been stated by the learned Author at page 324:" The Indian Courts have held that a clause in a contract giving one of the parties the option to cancel the contract for any reason whether adequate and valid or not confers an absolute and arbitrary power on one of the parties to a contract and is therefore void and unenforceable. Therefore, a clause in a contract of supply of goods to the railway administration conferring on the railway administration the right to cancel the contract ' at any stage during the tenure of the contract withoutcalling upon the outstandings on the unexpired portion of the contract' was held to be] a clause under which it was open to one of the parties, without assigning any reason valid or otherwise, to say that it was not enforceable. It conferred an absolute and arbitrary power on one of the parties to cancel the contract. Such a clause is void and unenforceable. " ( 11 ) SRI Sundaraswamy also invited our attention to the decision of the house of Lords in Suisse Atlantique v. N. V. Rotterdam, 1966 (2) All Eng. R. 61. where the doctrine of fundamental breach has been considered. The said decision has been commented upon by Chitty on Contracts, Vol. 1, 23rd Edn, para 739. This is what the learned Author has stated :" Although the House of Lords in the Suisse Atlantique case decisively rejected the view that the doctrine of fundamental breach was a substantive rule of law, it appears that the doctrine still has a part to play in deciding whether or not the particular exemption clause covers the breach which has emerged. Lord Reid pointed out that an exemption clause might fail both because it was not wide enough to cover the breach and also because it was so wide that it could not be applied literally i. e. , because this would lead to an absurdity or because it would defeat the main object of the contract or perhaps for other reasons. Lord Upjohn also stated, when discussing the concept of a fundamental term, that 'there is a strong, though rebuttable, presumption that in inserting a clause of exclusion or limitation in their contract the parties are not contemplating breaches of fundamental terms and such clause do not apply to relieve a party from the consequences of such a breach even where the contract continues in force. ' And lord Wilberforce, while emphasising the point that the question was one of construction based upon the parties' contractual intention, said; 'one, may safely say that the parties cannot, in a contract, have contemplated that the clause should have so wide an ambit as in effect to deprive one party's stipulations of all contractual force: to do so would be to reduce the contract to a mere declaration of intent. ' it therefore, seems that the Suissee Atlantique case has not greatly curtailed the substantial discretion assumed by the Courts to strike down exemption clauses which they consider either defeat the main purpose of the transaction or which allow ope party substitute a performance which is totally at variance with that undertaken in the contract. Indeed, it is to be noted that no previous decision on fundamental breach was actually over-ruled by the House, and that many were referred to with approval. As a result, there is nothing in the suisse Atlantique decision to indicate that such decisions are not still good law on their particular facts, provided that they are regarded as instances where an exemption clause, on its true construction, did not cover the of breach committed. " ( 12 ) ON a reading of the several decisions of the English Courts, the principle to be deduced is that where an exemption clause allows! one party to wholly defeat the main purpose of the transaction, such a clause has to be disregarded. " ( 12 ) ON a reading of the several decisions of the English Courts, the principle to be deduced is that where an exemption clause allows! one party to wholly defeat the main purpose of the transaction, such a clause has to be disregarded. The same principle has been stated in Anson's Law of cortract, 22nd Edn, at page 159, thus :" If an exemption clause is, inconsistent with the main purpose of the contract as a whole, the Court will limit or even disregard the clause when construing the contract. "sri K. Swamy Rao, learned Counsel for the respondent, submitted that the principle as stated by Rajamannar, CJ. , and the other authorities of the English Courts relied on by the learned Counsel for the appellant cannot be invoked in' view of the decision of the Supreme Court in Central. Bank of India v. Hartford Fire Insce Co, AIR 1965 SC 1288 . That decision was also relied upon by the learned Civil Judge in support of his conclusion. The decision of Rajamannar, CJ. , has been referred to by the Supreme Court in that judgment. The Supreme Court has distinguished the facts of the case before it from the facts in Maddaza Thathiah's case (2 ). It observed that the decision in the Madras case was put on the basis that where liability has already been incurred under a contract the law does not permit one of the parties to say that there, is no contract subsisting. In the case before the supreme Court, the facts were different. That was a case relating to a policy of insurance which was for a period of one year. Clause 10 of the policy provided that the, policy may be terminated at any time at the request of the insured and that it may also be terminated at the option of the company on notice to that effect being given to the insured in which case the company shall be liable to repay on demand a rateable proportion on the premium for the unexpired term from the date of cancellation. The Supreme Court observed that such a clause is common in Insurance Policies, that Clause 10 in effect was a proviso to the term fixing the tenure of the policy at one year, and that it would ba absurd to apply the rule of repugnancy to such a proviso. The Supreme Court observed that such a clause is common in Insurance Policies, that Clause 10 in effect was a proviso to the term fixing the tenure of the policy at one year, and that it would ba absurd to apply the rule of repugnancy to such a proviso. The policy being effective until it was terminated, it was held that the clause was not repugnant to the main purpose of the contract. That is the distinguishing feature of that case. The instant case, in our opinion, is clearly different. If Condition 9 is held valid and given effect to then it will be allowing the defendant to wholly defeat the main purpose of the contract at its arbitrary will and pleasure. In other words, a concluded contract cannot be cancelled by one of the parties without the assent of the other contracting party. The law is that in the case of a concluded contract, one of the parties has no right to rescind the contract without the consent of the other contracting party. By inserting Condition 9 in the contract the defendant is given, the right to alter the Law of Contract. By inserting a clause in an agreement, it is not open to the parties to stipulate that they will not be bound by the Law of the Land governing contracts. When Exts. P2 and P7 contracts were entered into, there were two concluded contracts. By the defendant company invoking Condition 9 and cancelling the contracts, the whole purpose of the contracts has been nullified, which thet defendant is not entitled to do. We cannot envisage a situation where Condition 9 can be availed of as in Maddala Thathia's case (2 ). Therefore, disagreeing with the view of the learned Civil Judge we hold that condition 9 in Extsp. 2 and P7 is void and unenforceable and cannot be relied upon by the; defendant company for cancelling the contracts. ( 13 ) IN view of our finding that the defenant was not entitled to cancel the contracts, it is clear that by its failure to supply the outstanding quantities of fertilisers, it has committed breach of the contracts. In the case of breach of contract for sale of goods, the measure of damages is the difference between the contract price and the market price on the date of tha breach. In the case of breach of contract for sale of goods, the measure of damages is the difference between the contract price and the market price on the date of tha breach. That is the law settled by the decision of the Judicial Committee of the Privy Council in Mackay v. Maharaja Kameswar Singh, 59 In. App. 398. This Court in B. N. Padmanabhiah v. Jayachamarajendra Oil Mills, 1961 Myslj. 904. has also taken the same view viz. , that the damages must be based on the difference between the market price and the contract pride. The market price on the date of the breach, viz, 23-6-1966 was Rs. 336-60 per tonne f. o. r. Munirabad, as stated in Ext. P9 itself. The plaintiff has claimed the diiference between the said market rate and the contract rates. The difference is Rs. 24,440 in respect of 400 tonnes contracted to be supplied as per Ext. P7. The difference with respect to the outstanding quantity of fertilisers to be, supplied as per Ext. P2 is Rs. 16,253-02. These are the amounts claimed by the plaintiff in the two suits. ( 14 ) WE, therefore hold that the plaintiff is entitled to damages in the sum of Rs. 24,440 in OS. 8 of 1969 and Rs. 16,253-02 in OS. 6 of 1969. The plaintiff is entitled to interest at 6 per cent per annum on the said amounts from the date of the dearee, i. e. , 12-2-1971. In the result, for the reasons stated above, we allow both the appeals with costs, reverse the judgment and decree of the Court below and decree the plaintiff's suits with costs for the aforesaid amounts with interest at 6 per cent per annum from 12-2-1971. --- *** --- .