1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from the order of a Division Bench of the then High Court of West Pakistan, Karachi Bench, dismissing .The appellant's Letters Patent Appeal.
2. A preliminary point was raised by Mr. Tayab Ali, learned Advocate appearing on behalf of the respondent, that the petition for special leave upon which the leave was granted had become barred by limitation by several days. The Bench that granted the leave kept this question open for decision at the hearing of the appeal.
3. The impugned order of the High Court was passed on the 7th September 1964, and the application for a certified copy of the order was made on the same day. The copy was made ready on the 14th October 1964, the stamp was supplied on the 15th October 1964, and the copy was certified on the 15th October 1964. The copy was supplied on the 17th October 1964, and the petition for special leave to appeal was filed on the 16th December 1964.
4. It has been submitted before us that the 3 days' delay that occurred in filing the petition for special leave was due to the fact that the office of the High Court did not notify that the copy was ready for delivery as required under the Sind Chief Court Rules, and, therefore, limitation should be computed from the date of obtaining delivery of the copy. This view finds support from the decision of the High Court in the case of Gul Muhammad v. Allah Ditta (PLD 1960 Lah. 443). In the case under report it has been held that the time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when they copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. In any event, in my opinion, the delay has been satisfactorily explained and I would, accordingly condone the delay.
5. Leave was granted to consider whether under the agreement as contained in the letter dated the 13th December 1955 (Exh. 7), the appellant corporation was liable to pay any damages for non--- supply of goods by it to the respondent.
6. The appeal arises out of a suit instituted by the respondent against the appellant for the recovery of rupees two lacs as damages. The plaintiff-respondent is the proprietor of the business concern known as Fashion Arcade, and he claimed that he was appointed by the defendant-appellant as its Distributor for the products of two mills known as Harnai Woollen Mills and Bannu Woollen Mills.
7. The appointment was first made for the period 1st May 1955 to the 31st March 1956, by the letter dated the 5th May 1955 (Exh. 6). Clauses 1, 2, 4, 9 and 16 of this contract are as follows:- "1. Terms of appointment.-You are appointed as the sole Distributors in the area notified in clause 3 below of all the products of the said Mills with effect from 1st May 1955, and in the first instance for the period ending 31st March 1966, and the appointment will be renewed for a further period of one year provided the said Mills remain under the control and management of this Corporation and provided further that you shall have, by the end of March 1956; lifted goods up to the minimum specified limit determined in the next following clause and subject to your abiding by and fulfilling all the other terms and conditions appearing herein--after.
2. Minimum specified limit.-The minimum specified limit in your case has been fixed at rupees five lacs worth of products of each of the s aid Mills, inclusive of your undertaking under clause 9, hereinafter. You shall place orders for goods worth at least the minimum specified limits as provided under Clause 4 hereinafter.
4. Orders.-(a) Orders for the supply of goods worth half of the said minimum specified limit shall be placed by you during the month of May for delivery by mid-September; and
(b) Orders for goods worth one-fourth of the minimum specified limit shall be placed by you by August for delivery by mid-November; and
(c) Orders for goods worth one-fourth of the minimum specified limit shall be placed by you during October for delivery by mid-January.
9. Stocks already produced by the Mill.-You shall undertake to buy the existing accumulated material pro--duced by the two said Mills whether lying with the Mills or with our Lahore Office or with us against cash payment on non-- returnable basis at prices mutually agreed and shall lift such quantities as quickly as possible before ordering fresh material against new samples and specifications.
16. Break Clause.-If there be any default on your part to lift goods up to the minimum specified limit or should you fail to observe and fulfil any of the terms and conditions stipulated hereinbefore this agreement shall stand cancelled without prejudice, however, to any obligation on to part of either of the parties hereto towards one another, arising out of this Agreement at the time of such cancellation of this Agreement."
8. The appellant wrote to the respondent on the 2nd December 1955 (Exh. 18) complaining that the latter had committed breach of contract in respect of clauses 2, 4 and 9, and asking him to explain about the default and to show cause why action should not be taken against him under clause 16 of the Contract.
9. The respondent submitted his explanation through his letter dated the 7th December 1955. A meeting took place between him and the Deputy Sales Manager of the appellant on the same day as a result of which the appellant wrote the following letter dated the 13th December 1955 (Exh. 7) to the respondent:- "Messrs Fashion Arcade, Elphinstone Street, Karachi.
10. Dear Sirs, We refer to you letter dated the 7th December 1955, and the subsequent discussion which your Mr. Qureshi had with our Deputy General Manager (Sales) on the 7th December 1955, in which he agreed that in case we appoint you as our distributor for woollen products for the next season I.e. During 1956 for Karachi and the area formerly known as Sind Province you wilt abide by the following conditions:-
(1) You will buy from ready stocks Handloom Tweeds of Harnai Woollen Mills of the value of Rs. One lac by the 30th April 1956.
(2) You will also buy from the other existing stocks lying at Harnai and Bannu Woollen Mills stocks of the value of one lac of rupees by the 30th April 1956.
(3) For the stocks referred to at (2) above and lying at Harnai Woollen Mills you will pay 10 % more than the pre-devaluation rates fixed for these stocks.
(4) You will pay Rs. 25,000 immediately towards payment of Handloom Tweeds of Harnai Woollen Mills lying with us in Karachi and will lift these stocks.
(5) You will open an irrevocable letter of credit immediately for one lac of rupees in favour of Harnai Woollen Mills to--wards the cost of Handloom Tweed and other ready stocks lying at Harnai as mentioned in paras. 1 to 3 above. The letter of credit would be in our band not later than the 15th instant and would be valid up to 30th April 1956.
(6) You will visit Harnai and Bannu Woollen Mills immedi--ately and select stocks of Handloom Tweeds and other material. Immediately after visiting the Mills you would open another irrevocable letter of credit in favour of the Mills concerned to cover the balance of the total amount payable by you under paras. 1 to 4 above valid up to 30th April 1956. This letter of credit would be arranged before the 15th January 1956. we have pleasure to inform you that subject to your confirming these terms and conditions in writing and your fulfilling the conditions regarding payment of Rs. 25,000 and opening of the letter of credit for Rs. One lac referred to in paras. 4 and 5 above we agree to appoint you as our distributor for the next season i.e. 1956 for the area stated above.
11. We wish to make it clear that our offer to appoint you as our distributor for the next season is dependent upon the fulfilment in particular of the condition in para. (2) above. We, therefore, request you to fulfil these conditions immediately. As soon as you have done so, we will send you the necessary letter of appointment.
12. Yours faithfully, Pakistan Industrial Development Corporation.
13. (Sd.) Mohd. Anwar Khan, Deputy General Manager (Sales).
14. The respondent replied to this letter by his letter dated the 21st December 1955/3rd January 1956 (Exh. 10), which is as follows:- "The Deputy General Manager (Sales), Pakistan Industrial Development Corporation, McLeod Road, Karachi.
15. Dear Sir, With reference to your letter No. MB (W) 8, dated the 13th December 1955, regarding our appointment as Distributors for your Woollen products for the next seasons i.e. Until 31st March 1957, we confirm as under:-
(1) We shall buy from stocks with no manufacturing defect, of Handloom Tweeds of Harnai Woollen Mills of the value of Rs. One lac by the 30th April 1956, at notified current prices. The said figure of Rs.
16. One lac shall include all the purchases of Handloom Tweeds hitherto made by us after our previous offer, dated 7th November 1955.
(2) We shall also buy, as from 1st December 1955, other existing marketable stocks of Harnai and Bannu Woollen Mills to total the value of Rs. One lac.
(3) For the stocks referred to at (2) above and lying at Harnai Woollen Mills, we agree to pay 10% more than the pre-devalu--ation rates provided the stocks offered are in marketable condi--tion and absolutely undefective. We shall have our option to pick and choose the existing stocks at both the Mills.
(4) In view of our appointment as your distributors, we have already paid you ad hoc Rs. 25,000 (Twenty-five thousand) towards the cost of stocks of handloom tweeds of Harnai Mills, lying with you in Karachi.
(5) As desired by you, we have also established an irrevocable letter of credit for Rs. One lac in favour of Harnai Woollen Mills towards the cost of Handloom tweeds and other stocks lying at Harnai and Bannu as mentioned in paras. 1-3 above. A copy of the letter of credit for Rs. One lac on Grindlays Bank is enclosed herewith.
(6) We shall visit your Mills or arrange otherwise for the selection of Handloom tweeds and other material, at our earlist convenience. Another letter of credit, if and when required shall be promptly established.
(7) We wish to make it clear that we have agreed to buy your old stocks of Handloom Tweeds of the value of Rs. One lac and other stocks of Rs. One lac at the close of the Winter season, specially when we are already burdened with your Mills late deliveries of the value of over Rs. 2,50.000 solely on the understanding that our distributorship for the next season shall not unnecessarily be disturbed until the close of the next term.
17. Yours faithfully, for Fashion Arcade, (Sd.) A. Qureshi."
18. The respondent claimed that he paid the appellant Rs. 25,000 and opened an irrevocable letter of credit for Rs. 1,00,000 on the 17th,/19th December 1955, in terms of clauses (4) and (5) respectively of Exh.
7. Furthermore the respondent placed two orders, one after the other for the supply of 5,000 yards of plain velour and of 5,000 yards of check velour, and of 5,000 yards of tweed and 5,000 yards of check velour.
19. On the 9th of February 1956 (Exh. 8) the appellant wrote to the respondent that inasmuch as the latter had failed to observe and fulfil the terms and conditions as contained in the former's letter dated the 13th December 1955 (Exh. 7) the offer to appoint the respondent as distributor was thereby withdrawn.
20. The respondent by his letter dated the 11th February 1956, denied the allegations contained in Exh. 8, and protested against the withdrawal, but the appellant by his letter dated the 16th February 1956 (Exh. 30) refused to revise its decision.
21. The respondent instituted the present suit in the then High Court of West Pakistan, Karachi Seat on the 21st August 1956, for recovery of Rs. 2,00,000 as damages. As the plaint did not contain particulars of damages the respondent at the instance of the appellant supplied the following particulars:- "(a) The entire renewed agreement, as mentioned in paragraphs 4 to 6 of the plaint was violated by defendant's letter of the 13th of December 1955 (Exh. 7).
(b) The nature, detail and extent of damages claimed in the suit are as under:-
(i) Lose of profit on the minimum amount of goods under the agreement at rate of 15 % ... Rs. 1,50,000
(ii) Consequential damages... Rs. 50,000 Total Rs. 2,00,000"
22. The defendant-appellant denied its liability to pay damages and pleaded that as the respondent did not accept the offer as contained in Exh. 7, and also failed to abide by the terms and conditions mentioned therein the former was justified in with drawing the offer. The appellant alleged that the respondent's letter dated the 21st December 1955 (Exh. 10) offered counter-proposals and, as such, it did not amount to acceptance of the appellant's offer contained in Exh. 7.
23. The suit was decreed by a learned Single Judge of the High Court for Rs. 40,000 only. The defendant preferred a Letters Patent Appeal and the appeal was dismissed by a Division Bench of the High Court.
24. Both the Courts have concurrently found that a new contract of agency on the basis of Exh. 7 came into existence between the parties and that the appellant was liable for breach of the contract by repudiating it, and not appointing the respondent a distributor for the season beginning from 1st April 1956 to 31st March 1957. Both the Courts further held that the respondent's letter Exh. 10 was, in fact, an acceptance of the offer of the appellant as contained in its letter dated the 13th December 1955 (Exh. 7) and not counter-proposals.
25. Proceeding on the basis of the concurrent findings of the two Courts that a new contract of agency came into existence as a result of Exh. 7, and that the appellant committed breach of the agreement, the only question that calls for consideration is whether correct principles have been followed in awarding damages to the respondent. Sections 203, 205 and 206 of the Contract Act are as follows:- "203. The principal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal.
205. Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make compensation to the agent, or the agent to the principal, as the case may be, for any previous revocation or renunciation of the agency without sufficient cause.
206. Reasonable notice must be given of such revocation or renunciation; otherwise the damages thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other."
26. Reading the three sections together it seems to me evident that if the principal without sufficient cause revokes the agency before the expiration of the period mentioned in the contract he must make compensation to the agent. Furthermore, that unless reasonable notice is given of such revocation, the principal must make good, the damage resulting to the agent.
27. The principles contained in sections 205 and 206 of the Contract Act do not seem to have engaged the attention of either Court.
28. It appears that the shop of the respondent was raided by the Special Police on the 24th January 1956, and the goods of the respondent were seized, and his shop sealed. The Grindlays Bank Ltd., which at the instance of the respondent had opened a letter of credit in the amount of Rs, 1,00,000 in favour of the appellant, wrote the following letter dated the 1st February 1956 (Exh. 12) to the appellant:- "We refer you to our above letter of credit which was established in your favour on 17-12-1955 at the request of Messrs Fashion Arcade. We have to advise that business premises of Messrs Fashion Arcade has been sealed by the police authorities as it was alleged that they were dealing in smuggled goods. We, therefore, request you not to draw bills under this credit till such time as this matter is cleared for under the present circumstances we feel that they will not be in a position to pay their bills."
29. The learned Judges of the Division Bench have observed as follows in regard to this letter of the Bank (Exh. 12):- "What seems to have happened is that the appellant took action against the respondent on the letter written by the Grindlays Bank Limited referred to above. The said letter had followed an event resulting in the sealing of the premises of the respondent and the publicity of this fact in the dawn of the 26th January 1959 (Exh. 11). . . . . ."
30. If it be true that the appellant revoked the agency of the respondent by the former's letter dated the 9th February 1956 (Exh. 8) on the basis of the Bank's letter (Exh. 12) then the learned Judges should have proceeded to consider whether the revocation was without sufficient cause. The action taken by the Special Police against the shop and goods of the respondent, and the Bank's disclosure that the police action was due to the allegation that the respondent was dealing in smuggled goods, indicated that the revocation was due to loss of respondent's reputation and thus not sufficient cause although the appellant's letter of revocation (Exh. 8) did not say so. In the case of Boulton Bros. & Co. Ltd. (AIR 1929 All 87) loss of reputation by the agent was considered to be a sufficient reason for putting an end to agency on the part of the principal. In the case under report one Company 'S' appointed another Company 'P' for a term of 20 years as their managing agents, the chief incentive to do so being the great reputation of the latter company in commercial circles. Afterwards Company 'P', came to be discredited and as the Company 'S' felt that their association with 'P' was rather a hindrance than a help to them they terminated their contract with 'P' and dismissed them as managing agents. It was held that the Company 'S' was clearly within its rights to terminate the agreement, regardless of the term of 20 years entered therein in consideration of the advantages then forthcoming but were quite out of question on the date the agreement was terminated. In support of this view reliance was placed on Pearce v. Foster ((1886)
31. 17 Q 8 D 530). The Court observed that the provisions of the Contract Act were very elastic and damages for termination of agency before expiry of the agreed term could not be recovered as a matter of course. It was only where such termi--nation was without 'sufficient cause' that damages could be recovered. The circumstances of each case would determine the question whether there was sufficient cause. No hard and fast rule could be laid down for any class of cases.
32. Assuming, however, that the appellant was guilty of breach of contract, the question is what is the measure of damages that should be allowed to the respondent.
33. Exh. 7 makes no mention of the quantity or value of goods that the respondent was asked to lift in respect of any particular mill or the manner in which the goods were to be supplied to the respondent. The price of goods and other details about the proposed distributorship were wanting.
34. There is no mention of remuneration or the terms of payment of price by the respondent. The terms and conditions of the subsequent contract in Exh. 7 can only be presumed and gathered with reference to the first contract Exh.
6. The learned Judges of the Division Bench, however, say that as the respondent based his claim only upon Exh. 7 and his own letter dated the 21st December 1955 (Exh. 10), there shall be no reference to the first contract Exh.
6. Curiously the learned Judges forgot their own observations, and later proceeded to discover the terms and conditions of Exh. 7 with reference to Exh.
6. In my opinion such a speculative exercise was not permis--sible in the case of a written contract. If Exh. 7 is silent about the terms and conditions it is not for the Court to supply them with reference to an earlier contract for a similar distributorship. This view finds support from the case of Official Assignee of Madras v. Frank Johnson Sons & Co. Ltd. And another (AIR 1931 Mad.
35. 65), with which I agree. In the case under report it has been observed: "The principle is well settled that a stipulation not expressed in a written contract should not be implied merely because the Court thinks that it would be a reasonable thing to imply it. Such an implication can be made only if, on a consideration of the terms of the contract in a reasonable and business manner, the Court is satisfied that it should necessarily have been intended by the parties when the contract was made."
36. In the present case the Court cannot be unmindful of the background of the agreement Exh. 7 that the respondent had failed to abide by the terms and conditions of the first contract Exh. 6 which necessitated the laying down of certain pre-conditions in Exh. 7 upon the fulfilment of which alone the appellant had agreed to appoint the respondent distributor for the next season. Upon the fulfilment of the conditions precedent the appellant promised to send the respondent the necessary letter of appointment, which was never despatched. It should also be remembered that both the Courts found that at least one condition in Exh. 7 viz., another irrevocable letter of credit mentioned in clause 6 of the exhibit, was not fulfilled inasmuch as it was never opened as required.
37. Although the Courts have sought to explain that this was not a breach of the condition by the respondent, the fact remained that the letter of credit was never opened. Furthermore, there was some loss of reputation of the respondent on account of the aforesaid Special Police action seizing his goods and sealing his business premises. This loss of reputation not having been men--tioned by the appellant in his letter Exh 8 dated the 9th February 1956, withdrawing the offer, may not be relied on as furnishing a sufficient cause for the withdrawal, it nevertheless can be taken into consideration for the purpose of assessing the measure of damages. Finally the contract was repudiated well in advance of the time, and, therefore, there was no necessity for the respondent to incur any costs towards the operation of the anticipated distributorship for the next season. No evidence has been given that any such cost was incurred. The respondent has led no evidence to show that due to this anticipated distributorship he did not take any steps to obtain similar distributorship from other party. The respondent waited till the 21st August 1956, to institute the suit for recovery of damages. The respondent never pleaded that in pursuance of the agreement Exh. 7 he placed any order with the appellant for the next season which the latter refused to comply with.
38. There is nothing to show that he ever placed any orders with the appellant on the basis of the contract Exh. 7 which were not honoured. Under Exh. 7 or even under the previous contract Exh. 6 there was no obligation on the part of the appellant to supply goods to the respondent unordered.
39. Under Exh. 6 the obligation was on the respondent to place orders for the goods for which he was authorised under clause 10 thereof to add to F. O. R. Station of despatch prices of all goods supplied to him up to a maximum of 25 per cent. Thereof inclusive of sales tax as margin of profit for fixing the wholesale and retail prices separately for each variety of the products of the two mills.
40. In the case of Mehtab Din v. Fazal Hussain (PLD 1954 Lah. 451), S. A. Rahman, J.; as he then was, observed as follows: "The argument that the plaintiff was bound to sue at once for general damages for breach of contract, without waiting for any part of the lease period to elapse, is untenable. It was the option of the plaintiff either to accept the repudiation of the contract forthwith and sue for general damages or to keep the contract alive for his benefit and to sue at the end of the period stipulated in the contract. The repudiation of the contract by one party does not of itself discharge the contract. The other party has the option of treating the contract as at an end, or of waiting until the time for performance has arrived, before making any claim for breach of contract. Of course the right of election must be signified, to rescind the contract forthwith, in an unqualified manner and with every reasonable despatch. If an injured party elects to wait, he remains liable to perform his part of the contract, and enables the party in default not only to perform the contract, notwithstanding his previous repudiation of it, but to take advantage of any supervening circumstance which would justify him in declining to perform it."
41. I agree with these observations. The respondent having elected to wait not only remained liable to perform his part of the contract, but also enabled the appellant, notwithstanding his repudiation of the contract, to perform the contract. As appears from the foregoing the respondent never did anything to signify his intention to perform his part of the contract. Keeping in mind the aforesaid facts and circumstances let me now turn to the principles that should guide us in the determination of the measure of damages.
42. Section 73 of the Contract Act provides as follows:- "73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damages caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
43. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
44. Explanation.-In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account."
45. It is thus, evident that the appellant is liable to pay compen--sation to the respondent for any loss or damage caused to him which naturally arose in the usual course of things from the breach of contract or which the parties knew to be likely to result from the breach. Compensation is not allowed for any remote and indirect loss or damage. Furthermore, in estimating the loss or damage, the means which existed of remedying the inconvenience caused by the non- performance of the contract must be taken into account.
46. Once the Court has found that a particular kind of damage is sufficiently proximate, it is required to proceed to consider the measure of damages or the principle upon which the actual monetary compensation for the damage should be assessed. Cheshire and Fifoot while amplifying the rule in Hadley v. Baxendale in their book on the Law of Contract, Sixth Edition at p. 516, say that the defendant is liable for the actual loss caused.
47. "The great underlying principle by which the Courts are guided in awarding damages is restitutio in Integrum. By this is meant that the law will endeavour, so far as money can do it, to place the injured person in the same situation as if the contract had been performed": Halsbury's Laws of England (Hailsham) Second Edition, para. 101. This is so only generally.
48. In Mediana v. Comet, the Mediana ((1900) H. C. 113) Lord Ralsbury, L. C. At p. 110 has observed as follows:- "The whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; . . . . . ."
49. In the ultimate analysis the position is as has been observed by Cheshire and Fifoot in their aforesaid book at p. 523: "But in general there is no specific rule upon the matter, and it is left to the good sense of the Court to assess as best it can what it considers to be an adequate recompense for the loss suffered by the plaintiff. The assessm ent may well be a matter of great difficulty, indeed in some cases one of guesswo rk, but the fact that it cannot be made with mathematical accuracy is no reason for depriving the plaintiff of compensation."
50. In para. 109 of the aforesaid Halsbury's Laws of England it has been stated that every breach of duty, whether arising out of contract or tort, gives rise to an action for damages, the amount of damages recoverable being, as a general rule, governed by the extent of the actual damage sustained in consequence of the defendant's act, provided such damage is not too remote.
51. Further--more that it is not always necessary that actual damage should be proved in order that damages may be awarded. Thus in action, for breach of contract nominal damages are recoverable although no actual damage can be proved. Dixon v. Devridge ((1825)2 C&P109).
52. Mayne and Mc Gregor on Damages (Twelfth Edition) at p. 202 of their book say: "The proper approach is to regard an injuria or wrong as entitling the plaintiff to a judgment for damages in his favour even without loss or damage, but where there is no loss or damage such judgment will be for nominal damages only."
53. The best statement as to the meaning and incidence of nominal damages is given by Lord Halsbury L. C. 1n the Mediana where he said : "'Nominal damages' is a technical phase which means that you have negatived anything like real damage, but that you are arming by your nominal damages that there is an infraction of a legal right which, though gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed."
54. The Authors proceed to say:- "There are a very few scattered illustrations of this type of nominal damages. This paucity of case- law warrants the in--clusion of Dixon v. Deveridge, although it was an action for the price of goods sold and delivered and not strictly, therefore, an action for damages. In that case there was evidence which went to show that some amount was due from the defendant, but nominal damages were awarded since the plaintiff did not give evidence as to what the amount was. And in Twyman v. Knowles, an action by the plaintiff lessee against the defendant for trespass to land, it appeared that five days after his trespass the defendant had obtained a lease of the property from the plaintiff's lessor. In the absence of evidence of the duration of the plaintiff's lease, it being admitted that the fee was in some third party, the jury concluded that the plaintiff's lease only lasted till the date of the defendant's lease and awarded nominal damages."
55. The following principles may be summed up from the law, treatises and the case-law mentioned above.
56. Compensation is payable for the actual loss or damage caused the loss or damage must be the proximate result of the breach, and foreseeable by the defendant. In estimating the loss or damage, the means which existed of remedying the inconvenience caused by the non- performance of the contract must be taken into account. Speaking generally the underlying principle is restitutio in integrum. There is no specific rule upon the matter, and it is left to the good sense of the Court to assess as best it can what it considers to be an adequate recompense for the loss suffered by the plaintiff. Every injuria, although without loss or damage, would entitle the plaintiff to judgment. It is not always necessary that actual damage should be proved in order that damages may be awarded. In actions for breach of contract nominal damages are recoverable although no actual damage can be proved.
57. I now proceed to apply these principles to the particular facts and circumstances of the case. The distributorship for the next season was still born. No actual loss or damage with reference to the agreement Exh. 7 has been pleaded, and no evidence led and no attempt made to prove any such loss or damage. The contract Exh. 7 was revoked long before the commencement of the next season for which the distributorship was promised. There appears to be some reasonable ground for the revocation although this has not been pleaded by the appellant. No terms and conditions of the contract are decipherable from Exh.
7. The respondent having elected to wait till after the commencement of the next season should have offered to perform his part of the contract by placing specific orders with the appellant, but he did not do so. The respondent has not even alleged that in anticipation of the promised distributorship he incurred any costs towards its operation. The past conduct of the respondent in failing to observe the previous contract Exb. 6 faithfully is also a relevant factor in fixing the measure of damages. There is also nothing to show that the respondent was prevented from securing similar business from elsewhere if he was really serious about it.
58. Having given my anxious consideration to all aspects of the case I think what the respondent has suffered is the expectation of obtaining the distributorship for the next season for which he did not incur any cost or expenses, and for this only nominal damages should be allowed to him. I assess the damages at Rs. 5,000 only.
59. I would, therefore, allow the appeal in part, and reduce the amount of damages granted to the respondent by the High Court to Rs. 5,000 (Rupees five thousand) only. There will be no order as to costs.
60. HAMOODUR RAHMAN, C. J.-I agree.
61. MUHAMMAD YAQUB ALI, J. -I agree.
62. ANWARUL HAQ, J.-I agree.