1. This suit has been filed for recovery of Rs.1,15,155. The defendants though served neither appeared nor filed their written statement and, therefore, the matter has proceeded against them ex parte.
2. As the matter was ex carte the plaintiff invoked the provision of Order IX, rule 6(a), C. P. C. To grant a decree on the basis of verified pleading without recording any evidence. From a perusal of the plaint it became clear that the material facts brought on record did not establish the plaintiffs' claim for damages, therefore, the plaintiff was required to produce evidence in support of its claim.
3. The plaintiff examined P. W. 1 who has reiterated the facts stated in the plaint. The purpose of Order IX, rule 6(a), C. P. C. Is not that in all cases, where the defendant fails to appear a decree should be granted as a matter of course. The Court is vested with a discretion in proper cases, to refuse to pass a decree without recording evidence. If the contents of the plaint are not sufficient to prove the plaintiff's claim or if the plaint appears to be barred under any law the Court is not bound to grant an ex carte decree. In cases where a defendant does not appear the Court is duty bound to take greater care and caution to see that no injustice is done to an un-represented defendant. The provision of Order, IX, rule 6(a), C. P. C.'4 cannot be invoked as a matter of course. Even in the absence of the defendant the plaintiff has to prove his case: On the plaintiff's invitation the defendant No. 1 of which defendants Nos. 2 to 5 are the partners submitted tender for supply of 5,200 vest winter woollen of different sizes at the rate of Rs.28.50 per piece for a total considera--tion of Rs.1,48,200. As the defendant No. 1 was the successful bidder a contract was entered into between the parties on 10th October, 1973 and it was agreed that special conditions attached and those mentioned in Form D. P. 35 except clause (38) were applicable to the contract. Clause (16) of the contract provided as follows :- "In the event of failure on the part of the supplier to comply with the contractual obligations; the contract is liable to be cancelled at their risk and expense in accordance with D. P. 35."
4. The defendant No. 1 failed to supply any goods consequently by a letter dated 1st October, 1973, the contract was cancelled. The plaintiff notified that it will procure the goods from alternate source at the risk and expense of the defendant No. 1. Accordingly the plaintiff by a contract dated 27th September, 1974, purchased the goods of the same description. This contract relates to goods of other quality but the plaintiff has calculated the difference in respect of the goods which were to be supplied by the defendant No. 1. The plaintiff purchased the goods at a higher price and claimed damages of Rs.1,15,155 being the difference between the price quoted by the defendant and the purchase price. The plaintiff claims this damage under clause (16) of the agreement as contained in D. P. 35, which is. Reproduced as follows :- "16. Non-delivery of stores within scheduled delivery period.-(a) The 'time' for and the date of delivery of the stores as stipulated in the contract shall be taken as the essence of the contract. All deliveries must be completed within the dates specified in the contract. Should the supplier fail to deliver the stores or any consignment thereof within the stipulated period or any extensions thereof the purchaser shall be entitled at his option to either
(i) cancel the contract, and/or
(ii) to purchase elsewhere stores not delivered,' at the risk and expenses of the supplier and without notice to him, or (i.e) To recover liquidated damages when the Government (Competent Purchase Officers on behalf of the Government) is satisfied that the failure to supply the stores within the scheduled delivery period bas been for reasons within the control of the suppliers. And/or if the Government has suffered loss for reasons of belated delivery. These liquidated damages, if imposed, will be recovered up 'to the rate of 2 % of the value of unsupplied quantity of the item (s) per month or a part of a month for the period exceeding the original delivery period, subject to the provision that the total liquidated damages thus leviable will not exceed 10% of the total contract value of the particular stores which remained unsupplied either in part or in full."
5. Note.-Decisions under this clause shall not be subjected to arbitration,
(b) In the event of action being taken under (i) or (ii) above, the supplier shall be liable for any loss which the purchaser may sustain on that account but shall not be entitled to any gain on repurchases made against default.
(c) . . . . .
6. (d)
7. (e)
8. Under clause. (16) on defendant's failure to supply the goods the plaintiff had three options. The plaintiff was entitled to cancel the contract and/or purchase elsewhere stores at the risk and expense of the defendants without any notice to them. It further provides that in the event the plaintiff cancels the contract and repurchases the goods, the defendants shall be liable for any loss which the plaintiff may sustain on that account:- The plaintiff has chosen to exercise his option to cancel the contract and purchase the goods at the risk of the defendants and claims damages on the basis of difference of price between the repurchase price and the price quoted by the defendants.
9. The plaintiff repurchased the goods by a contract dated 27th September; 1974. The witness has stated that normally the tenders are invited about 42 days before the execution of the contract. It, therefore, followed that the tender in the present case, on the basis of which the repurchase contract was executed, was invited somewhere in the second week of August, 1974. The contract with the defendant was cancelled on 1st October, 1973, and the plaintiff had taken ten months to invite the tenders and the contract for re-sale was executed on 27-9-1974 nearly about one year after the cancellation. In the circumstance it has to be determined whether the plaintiff could claim damages on the basis of repurchase price. A party is entitled to claim compensation for the loss suffered by him. Ordinarily in cases of breach of contract to sell the goods the measure of damage is the sum by which the contract price falls short of the price at which the purchaser might have obtained the goods of like quantity at the time and place they should have been delivered. But where the contract provides for measure of damage for breach of Contract, the aggrieved party is entitled to claim damages on .C that basis. In the present case the plaintiff was entitled to claim damages on the basis of repurchase of the goods.
10. The question, therefore, arises when the repurchase should be effected. If the agreement does not provide the time within which repurchase should be effected then it should be completed within a reasonable time. In Iqbal Bros. v. Muhammad Uman Bros. (PLD 1961 Kar. 203), where on purchaser's failure to take delivery of the goods the seller was entitled at any time or times and place without notice to the purchaser to sell the goods on account of and at the risk of the purchaser, it was held that the sale of the goods should be within a reasonable time. Justice Waheeduddin Ahmed made the following observation :- " . . . It is correct that the seller could in this case dispose of the goods at any time or times and place or places without notice, but this expression cannot be taken to mean 'at any unreasonable time, otherwise the result would be that the-seller may, with the deliberate intention of causing loss to the purchaser, postpone the re-sale until the market has fallen. It seems to us that in order to avoid injustice this expression must be given equitable construction and taken to mean "within reasonable time." Even in the Lahore case it was pointed out that "at any time or times" means only "at any reasonable time".
11. The same principle will also apply where a purchaser on seller's default is authorised to repurchase the goods at any time without any notice to the seller. In the Contract no period for repurchase has been fixed and, therefore, it should be effected within a reasonable time. In the present case it has taken about 10 months to invite the tenders and about one year to complete the Contract of repurchase. Thus period by no stretch of imagination can be termed as reasonable time. There is nothing to show that there were circumstances to justify the delay. Unless such evidence is produced a belated repurchase cannot be made a basis for recovery of damages. The learned counsel contended that the plaintiff had invited tenders earlier but as the were at higher rate they were not accepted. There is no such evidence on record to show that earlier tenders were invited.
12. Where the purchaser though entitled to claim damages on basis of difference in contract price and purchase price, is unable to prove to repurchase, he is entitled to claim damages on the basis of difference in contracted rate and market rate on the date of breach. In the present can there is no evidence on the record to prove the market rate of the goods on the date of breach. In the circumstances, no damages can be awarded to the plaintiff and the suit is dismissed.