LexMAHABIR PRASHAD RUNGTA versus DURGA DATT.
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3S.C.R. SUPREME COURT REPORTS 639 not even purport to be for legal necessity. Therefore, '96' in our opinion, the conclusion is inescapable that the Subbu C/utty's· impugned transfer is not justified by legal necessity. Family Charilie< The result is the appeal fails and is dismissed with v. costs. Raghava Mudaliar Appeal, dismissed. MAHABIR PRASHAD RUNGTA v. DURGADATT. (J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.) Contraet-Commercial transaction-Breach-Time, •if of the essence of the contraet-Aggrieved party, if can rescind the contract- lnterest-Rate-Awarding of-Principfe-lndian Contract Act, z87z (IX of z87z), s. 55. The respondent had agreed to transportcoalfrom the appel- lant's colliery to the railway station. The appellant had to keep the road in repair and arrange for petrol and had to make the payment for the actual coal despatched by the roth of the following month. The appellant complained that he was suffer- ing loss as the respondent had slowed down the work and the respondent complained that by not arranging for the petrol, not keeping the road in repairs and not making payments of amounts due the appellant had made it impossible to fnlfil the contract. The quantity of coal transported was a fact within the knowledge of the appellant and the agreement merely provided for payment of the bills by roth of the following month, without stating expressly that the presentation of bill was a condition precedent to the payment. The appellants contended that time was not of the essence of the contract and in any case the payment of the bills depended npon the presentation of bills in time and also challenged the award of the interest. Held, that in commercial transactions time is ordinarily of the essence of the contract and was made so in the contract and when this important condition of the agreement was broken, s. 55 Of the Indian Contract Act could be invoked by the aggrieved party and he was entitled to rescind the contract. In the present case by withholding the payment of the bills cl. (5) of the contract was breached by the appellant. Held, further, that interest for'a period prior to the com- mencement of suit is claimable either nnder an a'greement or usage of trade or under a statutory provision or nnder the Interest Act for a sum certain where notic11 is given. These h Gojendragadkar J. z96I January 31. '. 640 SUPREME COURT REPORTS [1961] z96z conditions not being satisfied and this being not a case in which - Court of Equity grants interest, interest was not awardable as M aiabir Prashad. damages. Ru•gl• Held, further, that interest pendente lite being in the discre- "· tion of Court, should be fixed in accordance with the circumstances Dur1• Dan and practice of the Court and should not be too high. Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji, (1937) L.R. 65 I.A. 66, referred to. CrVIL APPELLATE JURISDICTION: Civil Appeals Nos. 54 and 55 of 1957. Appeals from the judgment and decree dated March II, 1953, of the Judicial Commissioner's Court, Rewa, in First Appeals Nos. 104 and II6 of 1952. B. 0. Misra, for the appellant. Tarachand Brijmohan Lal, for the respondent. 1961. January 31. The Judgment of the Court was , delivered by Hidayalullah ]. HIDAYATULLA~, J.-Mahabir Prashad Rungta, appellant in these two appeals, was plaintiff in his own suit and defendant in a counter-suit filed by Durga Datt, the respondent. The two appeals have been filed on certificates granted by the Judicial Commissioner, Vindhya Pradesh against a common judgment and decree of the Judicial Commissioner's Court in four appeals filed by the rival parties, two in each civil suit. Certificate was also granted to the respondent ; but he did not take steps in that behalf, and we are, therefore, concerned only with the appeals of Mahabir Prashad Rungta. The two suits were filed -in the following circum- stances: Rungta owns a colliery at Budhar in Madhya Pradesh. On October 30, 1950, an agreement was executed between Rungta and the respondent, Durga Datt. Durga Datt agreed to transport coal from the colliery to the railway station at the rate of Rs. 2-8-0 per ton for a period of two years commen_cing from November II, 1950, to November IO, 1952. That agreement is Ex. P-1. The case of Rungta was that Durga Datt broke the contract from July 29, 1951, by stopping the work of transport. Durga Datt in his suit, on the other hand, av
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