STATE OF KERALA

COCHIN CHEMICAL REFINERIES LTD.

March 26, 1968

[J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.] 8

Contract-Mor{f:age deed providing for loan to company and for supply of goods by company to mortgagee-Sale price to be adiusted against loan and interest-Mortgagee not cdvancing loon-I/ relieved of obligation to purchase goods-Whether liable for da1nages for .'lot advancing loan and for bre(1ch of contract to buJ goods,

A mdrtgagc deed was executed by the respondent company and one of its directors in favour of the State of Keral::i. It was provided inter alia by the terms of the deed that in consideration of the State granting a loan of a sum of lls. 2.5 lakhs to the company, the laUer wou1U supply lo the State 3.000 tons of ground-nut cake Yyjthin a specified pe'riod and make deliveries in accordance 'Nith instructions to be given by the State, and the account for this supplv will be adjusted against the loan amount and the interest thereon.

It Was comn1on ground however that the loan amount, though acknowledged in the mortgage deed as received by the company, was never in fact advanced by the State. The respondent company arranged for the supply of goods as agreed and sought the necessary instructions for dlivery, but these we're never given.

The company instit\Ited a suit in 1Iarch 1953 against the appellant State for dumages for failure to advance the loan an1ount and for breach of contract to purchase the ground-nut cake. The trial court decTecd the suit for R.;;. 36,000 being damages for failure to advance the loan and for Rs. 1,23,000 as damages for breach of contract. An appeal to the High Court chaUenging the liability of the State to compensate the company for failure to take delivc'ry of the goods v.as dismissed.

It was contended on behalf of the State that the obligation to take delivery of the good_s agreed to be purchased was contingent upon the Government's advancing the loan amount, so long as the amount was not atlvanced by the State~ the mortgage \vas not in Jaw effective and the Company could not enforce the contract relating to ground-nut cake

~1i;:recd to be purchased by the State.

HELD : Dismissin.q the appeal.

A transaction of mortgage formally executed docs not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him.

Under the terms of the mortgage deed liability of the State to purchase the roundnut cake from the Company was not n1adc conllitional upon the State advancing the 1oan.

By failing to advance the loan an1ount the State could. not avoid liability to carry out the obligation to purchase the goods contracted to be purchased. Even if it be assumed thJ.t the indenture incorporated reciprocal promises, in the absence of anv express provision to that effect the contract could not be trn1inatcd by the default of the State. Breach of contract by one party does not auton1atica1ly terminate the obligation under the contract: the injured party has the option either to treat the cnntract as still in existence. or to regard himself as discharged. If he

ccepts the discharge of the contract by the other party, the contract i"

KllRALA V. COCHIN REFINERIES (Shah, J.) 557

A at an end. If he does not accept the discharge, he may insist on performance. (560 C-D; 561 DJ.

Tatia v. Babaji, I.L.R. 22 Bom. 176, Rashik Lal v. Ram Narain end Others, I.LR. 34 All. 273, Dip Narain Singh v. Nageshcr Prasad and Others. I.L.R. 52 All. 338, White and Cart., (Councils) Ltd, v.

Mc- Gregor, [1962] A.C. 413. referred to.

There was no substance in the contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure lo purchase the goods. The State's undertakings to advance the loan and to take delivery of ground-nut cake were two independent, though inter-related transactions; and by committing a breach of its own obligation to advance the loan, the State did not absolve itself from liability for the breach arising from its refusal to take delivery of the goods offered. [561 F-H].

Civn. APPELLATE JURISDICTION : Civil Appeal No. 741 of 1965.

Appeal by special leave from the judgment and decree dated April 1, 1963 of the Kerala High Court in Appeal Suit No. 480 of 1958.

Sarjoo Prasad and M. R. K. Pillai, for the appellant.

S. V. Gupte and A. G. Pudissery, for the respondent The Judgment of the Court was delivered by Shah, J.

On October 9, 1950, a deed styled an "indenture of mortgage" was executed by the Cochin Chemicals and Refineries Ltd.,-hereinafter called 'the Company' and N. C. John a Director of the Company, in favour of the State of Travancore- Cochin. The relevant terms of the indenture were :

"In consideration of the sum of Rupees 2.5 lakhs (2,50,000) borrowed by the mortgagor No. 1 from the mortgagee (the receipt of which sum mortgagor No. 1 doth hereby admit and acknowledge) mortgagor No. 1 hereby covenants with the mortgagee as follows :-

. (a) That the mortgagor No. 1 shall supply to the mortgagee 3,000 tons of groundnut cake at the rate of 600 tons per month within a period of five months commencing with the first day of November 1950 and ending with the last day of March 1951.

. (b) That the account for the groundnut cakes supphed by mortgagor No. 1 to the mortgagee will be settled and adjusted against the Joan amount of Rs. 2.5 lakhs and interest .thereon at 4!% per annum at the end of March 1951, the groundnut cakes supplied being valued at t?e average price fixed by the Government during the penod for purchases from other sources.

If on sucli adjustment any amount is found due to the mortgagor No. 1 the same will be paid by the mortgagee. If how-

558 SUP.REM!! COUllT .REPORTS

[1968) 3 S.C.R.

ever it is found that the price of the groundnut cakes supplied is not sufficient to make up the loan amount with the interest thereon, mortgagor No. 1 shall pay the deficit amount to the mortgagee immediately after the settlement of account

(c) That mortgagor No. I shall deliver the groundnut cakes at any depot in the Travancore-Cochin State as may from time to time be required by the Director of Agriculture from the mortgagee free of transport charges."

II .. "For the consideration aforesaid the mortgagor No. l hereby transfers by way of simple mortgage to the mortgagee" all the assets described in Sch. I, "and mortgagor No. 2 hereby transfers by way of simple mortgage to the mortgagee· the assets described in Sch. II, "to the intent that the said premises shall remain and be charged as security for the payment to the mortgagee of the said principal money, interest and costs in accorda11ce with the Covenants hereinbefore contained."

Ill. "The mortgagors hereby covenant with the mortgagee as follows :-

The indenture was executed by the Company and N. C. John and also by the Secretary to the Government of Travancore-Cochin on behalf of His Highness the Rajpramulch. A supplementary deed was executed on November 7, 1950, whereby it was agreed that without prejudice to the right to recover the amount secured or any portion thereof as stipulated, it shall also be recoverable under the Revenue Recovery Act for the time being in force or in other marmer as the mortgagee may deem fit.

It is common ground that the amount acknowledged in the indenture was not advanced at the date of the indenture and was never advanced thereafter. The Company arranged for the supply of goods agreed to be sold under the terms of paragraph I(a) and wrote from time to time letters to the appropriate officers of the State asking them to give instructions about the depots where the supplies were to be made. In reply to the letter Ext H, the Assistant Director of Agriculture by Ext. M, dated January 3, 1951, replied that :

"I write .to invite your attention to my Jetter of even No. dated 12-12-1950 and to inform you that I shal~ be placing orders for the supply of groundnut cake as soon as I get orders from Government providing the necessary funds for paying you the advance of Rs. 2! lakhs."

KERALA V, COCHIN REFINERIES (Shah, J.) 559

No instructions for supply were however given to the Company to supply the goods agreed to be purchased by the State. The Company instituted on March 9, 1953, an action against !he State of Travancore-Cochin for a decree for Rs. 3,600/- bemg damages for failure to advance the loan of Rs. 2,50,000/-, and Rs. 1,68,600/- as damages for breach of contract to purchase

3,000 tons of groundnut cake under the indenture.

The Trial Court decreed the suit for Rs. 3,600/- being damages for failure to advance the lcian, and for Rs. 1,23,000/- being damages for breach of contract to purchase groundnut cake. In appeal to the High Court, the liability of the State to compensate the Company for failure to take delivery of the goods offered to be delivered alone wa5 challenged. The High Court confirmed the decree -passed by tho Trial Court negativing the contention raised on behalf of the State that the obligation to take delivery of the goods agreed to be purchased was contingent on the Government's advancing Rs. 2,50,000/-. The State has appealed to this Court with special leave.

Two questions arise for determination in this appeal :

(I) Whether under the terms of the indenture the State by refusing to advance the loan of Rs. 2,50,000/- was absolved from the obligation to purchase the goods referred to in paragraph l(a) of the indenture; and

(2) Whether in the circumstances of the case, the Company was not entitled to claim damages for breach by the State to purchase the goods agreed to be purchased.

The indenture incorporated two transactions: ( 1 ) a mortgage in favour of the State by the Company and N. C. John charging properties belonging to the two mortgagors for repayment of Rs. 2,50,000/-; and (2) the Company agreeing to sell and the State agreeing to purchao; e 3,000 tons of groundnut cake at the rate of 600 tons per month for five months to be supplied at any of the depots in the Travanc<ire-Cochin State as may from time to time be designated by the Director of Agriculture. The indenture expressly recited that the amount of Rs. 2,50,000 /- was advanced to the Company but the supplementary deed dated November 7, 1950, and the correspondence make it clear that though the money wns recited to have been actually advanced, it was not in .fact advanced, but it was intended by the State Government to advance it.

For some reason, which it is difficult to ascertain from the record, the State Government did not carry out its obligation to advance the money, after obtaining the indenture and the supplementary deed from the Companv and its Director. But even as late as January 3, 1951, as is clear from Ext. M-the Assistant Director of Agriculture reiterated the promise that the money

560 SUPRBMB COURT RBPOllTS

(1968) 3 S.C.R.

will be advanced and delivery of goods offered by the Company will be accepted.

Counsel for the State contended that so long as the loan was not advanced by the State, the mortgage was not in law effective, and the Company could not enforce the contract relating to groundnut cake agreed to be purchased by the State, for the obligation undertaken was in consideration of the loan of Rs. 2,50,000/- and arose only when the loan was advanced. But the assumption, that if the State did not advance the loan which it had undertaken to advance, the indenture was ineffective, cannot be accepted. There is no such express term in the deed, and none can be implied from the covenants and the surrounding circumstances.

A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. If without advancing the amount agreed to be advanced, he sues on the title created under the deed of mortgage, the Court will not award him a decree for anything more than what he has advanced.

But that is not to say that the mortgage is invalid.

In Talia v. Babaji(1), Farran, C.J., observed :

"I am not, h9wever, . . . prepared to assent to the train of thought which puts conveyances of lands in the mofussil W{ected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contracts void for want of consideration."

Similar observations were made in Rashik Lal v. Ram Narain arid others('), where Karamat Hussain, J., observed at p. 276 :

" . . . . . . mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and not a mere contract. It therefore follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage money has 110t been paid by the mortgagee to the mortgagor:' The mere nonpayment of the mortgage money cannot have the effect of rendering the mortgage invalid."

Sulaiman, J., in Dip Narain Singh v. Nageshar Prasad and olhos(1) observed that once a document transferring immovable

property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the

(I) l.L.R. 22 Born. 176.

(2) I.L.R. 34 All. 273.

(l) I.LR. 52 All. 338.

KERALA >". COCHiX REFINERIES (Shalt, J.) 561

TJ'llnsfer of Property Act and so much of the Contract Act a; is applicable thereto.

The argument that because the amount was not advanced by the State to the Company, the mortgage was void or ineffective thenfore cannot be accepted. Nor do the terms of the indenture justifv the plea that the liability of the State to purchase 3,000 tous of groundnut cake from the Company was conditional upon the State advancing Rs. 2,50,000/-. The two transactions incor porated in the indenture were undoubtedly inter-related. . The price payable for the supplies of groundnut was to be adjusted towards the amount advanced or to be advanced by the State.

But by failing to advance the amount the State could not avoid liability to carry out the obligation to purchase the goods contracted to be purchased. Even if it be assumed that the indenture incorporated reciprocal promises--the State to advance Rs. 2,50,000/- and the Company to deliver 3,000 tons of groundnut cake-in the absence of any express provision to that effect the contract could not be tenninated by the default of the State. Breach of contract by one party does not automatically terminate the obligation under the contract: the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is at an end. If he does not accept the discharge, he may insist on performance : see the judgment of the House of Lords White and Caner (Co1mcils) Ltd. v. McGregor(').

The case before the House was a Scottish case, but the law of Scotland is not different on the matter under consideration from the F.nglish Jaw, and the Indian Contract Act closely follows the English Common Law in that matter. It cannot, therefore, be said that by refusing to advance the loan which the State i1ad

undertaken to t!dvance, the ooligation to purchase groundnut cake from the Company came to an elid.

Nor is there any substance in the secoud contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to G advance Rs. 2,50,000/- to the Company. It had also undertaken .to take delivery of 3,000 tons of groundnut cake offered by the :Company under the terms of contract of sale.

These were two ]ndependent, though inter-related transactions, and by committing a breach of its own obligation to advance the sum of Rs. 2,50,000/-

the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered. The cause of action arising out of the refusal to take delivery of the goods offered was independent of the cause of action arising out of the H

(I) (1962) A.C. 413=(196113 All. E.R. 1178.

562 SUPREME COUllT REPOllTS [1968] 3 s.c.R.

breach committed by the State in not advancing the loan. The A two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss su1Iercd by it as a result of the failure to advance the loan. the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 ions of groundnut cake by thf' S<ate.

B The appeal fails and is dismissed with costs.

R.K.P.S.

Appeal dismissed.