Bengal Enamel Works Ltd. vs Apejay Private Ltd.

P.B. Mukharji, J.—This suit was instituted on December 16, 1965, by the Plaintiff company, Bengal Enamel Works Ltd., against the Defendant company, Apejay Private Ltd., for the recovery of a sum of Rs. 99,718-14 P., alternatively, for an enquiry into the amount due to the Plaintiff and for a decree for such amount which is found due upon such enquiry and for costs.

The Plaintiff company''s case is that the Defendant company was at all material times a registered stock-holder of the Iron and Steel Controller, Calcutta and that the Defendant was liable and bound to sell iron and steel stocks at the direction of and at prices fixed by the said Controller. The Controller directed the Defendant to deliver to the Plaintiff certain stocks of iron and steel as alleged by the Plaintiff company. The Plaintiff paid a sum of Rs. 7,47,452-45 P. to the Defendant for the price of the iron and steel stocks during the period July 19,1962 and December 31, 1962. Particulars of these payments are set out in Schedule A to the plaint. The delivery of these goods took place during August 6, 1962 and September 4, 1962. It is alleged by the Plaintiff company that such delivery was at prices to be fixed or fixed by the said Steel Controller. On December 19, 1962, the Controller is said to have fixed the prices payable by the Plaintiff in respect of those goods and it is the Plaintiff company''s case that the Defendant is entitled only to such price fixed by such Controller. On the basis of such prices a sum of Rs. 6,62,885-38 P. became payable by the Plaintiff to the Defendant. Therefore, the Plaintiff''s case is that it has overpaid the Defendant to the extent off the sum of Rs. 84,567-07 P. as per particulars given in para. 8 of the plaint. It is this sum of money that the Plaintiff claims back from the Defendant. An alternative claim is made in para. 10 of the plaint on the basis of representations alleged to have been made by the Defendant to the Plaintiff which are said to have been false. A further alternative claim is made for the said sum of money as damages for deceit in para. 11 of the plaint but which the Learned Counsel for the Plaintiff, Mr. M.N. Banerjee, has given up. In further alternative, the said sum is claimed on the ground of mistake of fact. Interest is claimed on the amount at the rate of 6 per cent per annum. It is pleaded in the plaint that by reason of certain letters dated May 1, 1963, November 22, 1963, February 4, 1964, May 19, 1964 and September 22, 1964, the Defendant unconditionally admitted and acknowledged its liability to pay this excess amount. That in brief is the substance of the cause of action as pleaded in the plaint.

The defence is that the Defendant company was not a principal at all in this contract but was a handling agent of the Union of India represented by the Steel Controller. The defence is that the Defendant delivered to the Plaintiff company these goods not as stockists but under an allotment letter issued by the Steel Controller in favour of the Plaintiff under which the Defendant as handling agent of the Controller was directed to deliver these goods as and when they came imported from abroad in the name of the Steel Controller.

The next point of the defence is that by the allotment letter dated February 3, 1962, issued by the Controller to the Plaintiff, the Defendant was directed to pay 660 metric tons of steel materials at the rates specified in such allotment letter which was col. 1 rate of the price circular of the Controller ruling at the time of delivery ex-jetty. The Controller by his letter dated June 4, 1962, amended the rate by his direction saying the imported steel would be supplied by the handling agent on arrival at full landed cost ex-jetty so that it was no longer col. 1 rate as provided in Clause 2 of the allotment letter dated February 3, 1962. It is also the Defendant''s case that these goods on arrival were delivered to the Plaintiff company at the rate of landed costs which was agreed to, accepted and paid by the Plaintiff company. In such circumstances, the Defendant states that it collected from the Plaintiff the value of the price of the said goods delivered or sold to the Plaintiff at the rates fixed by the Controller and which rates were prevailing when the Defendant collected such value from the Plaintiff and at the time of delivery of those goods. It is part of the Defendant''s case that any price or rate alleged, to have been fixed subsequently by the Controller was not relevant of the aforesaid transaction and that in any event if subsequent changes in the price fixed by the Controller are to be taken into account, the final change has confirmed the landed cost rate.

In those circumstances, the Defendant denies in its written statement that there was any mistake of fact. The Defendant also denies any acknowledgment or admission of liability. It pleads that the claim, if any, is barred by limitation. It also pleads that the Plaintiff has no cause of action against the Defendant because the Defendant acted only as the agent of the Controller. The Defendant took specifically the point that the suit was bad for non-joinder of the Government and/or the Controller.

The following issues were settled by the Court and accepted by the parties:

(i) Did the Defendant sell and deliver the goods in suit as alleged in paras. 1, 2, 3 and 4 of the plaint?

(ii) Was the Defendant appointed as the handling agent by the Iron and Steel Controller and did the Defendant act only as such agent in the transactions in suit as stated in paras. 1 and 2 of the written statement?

(iii) Were the prices mentioned in the Regularizing Orders of The Plaintiff dated October 15, 1962 and October 19/20, 1962, the agreed prices of the goods as alleged in para. 2(c) of the written, statement?

(iv) What were the prices, if any, finally fixed by the Iron and Steel Controller for the goods in suit as alleged in para. 5 of the plaint?

(v) Is the Plaintiff estopped from alleging that Rs. 7,47,452-56 P. was the amount payable in respect of the said goods as claimed in para. 2(h) of the written statement?

(vi) Did the Plaintiff accept the sum of Rs. 17,501-62 P. from the Defendant in settlement of its claim and was there full accord and satisfaction as alleged in para. 2(1) of the written statement?

(vii) Did the Defendant make any representation as alleged in para. 10(a) of the plaint ? If so, did the Plaintiff act on such representation and was such representation false as alleged in paras. 10(b) and 10(f) respectively of the plaint?

(viii) Was there any mistake of fact as alleged in para. 12 of the plaint ? If so, did the Plaintiff discover such alleged mistake on April 3, 1963?

(ix) Was the Plaintiff liable to pay only Rs. 6,62,885-38 P. in respect of the said goods as alleged in paras. 6 and 7 of the plaint?

(x) Is the claim of the Plaintiff barred by limitation?

(xi) Is this suit bad for non-joinder of the Iron and Steel Controller?

(xii) Is the Plaintiff entitled to interest as claimed in para. 16 of the plaint?

(xiii) To what reliefs, if any, is the Plaintiff entitled?

Both oral and documentary evidence have been given in this case. On behalf of the Plaintiff company Mr. Benoy Krishna Chakravarty, a Director, has given evidence. On behalf of the Defendant company Mr. M. Srinivasan, who was a Director in the relevant years 1962-63 of the Defendant company, Mr. James Cherian, also a Director of the Defendant company, Mr. S.C. Adhikari, the Deputy Price and Accounts Officer of the Iron and Steel Controller and Mr. S. Kar of the Punjab National Bank have given evidence. Certain documents are marked by consent as Ex. A and others have been proved and exhibited.

Issues Nos. (i) and (ii).

I shall take up the first two issues. They have been set out above. They raise the essential and fundamental question in this suit about the nature of the contract for the sale of goods in this suit between the Plaintiff and the Defendant. I have already stated the effect and substance of the pleading in paras. 1, 2, 3 and 4 of the plaint which represents the Plaintiff''s case. The defence is that the Defendant company acted only as an agent or rather as a handling agent for the Iron and Steel Controller of the Government of India.

The documents appearing on this issue are: (i) The Bills of Lading, Ex. 1; (ii) Invoices, Ex. 2; (iii) Handling agent contract, Ex. 3; (iv) Allotment letter, Ex. A; (v) Letter dated June 4, 1962, also appearing in Ex. A; (vi) Regularising Orders, also appearing in Ex. A; (vii) Invoices, rather bills of the Defendant to the Plaintiff dated September 25, 1962 and August 30, 1962, Ex. 5.

I shall briefly take up the effect of each one of these documents on these issues. The bills of lading appear at pp. 17 and 18 and at p. 31 of the second brief of documents. They are marked Ex. 1. They are of the Scindia Steam Navigation Company Limited and the Isthmian Lines Inc. The bills of lading show that these are the imported steel coming from the United States. The consignee is expressly said to be "The Iron and Steel Controller, Calcutta-1, India. The bills of lading also show that the arrival notice is to be given to the Defendant company. There is, therefore, no doubt that the consignee in those bills of lading is the Iron and Steel Controller, Calcutta. The Defendant was not consignee of these goods. The next document is the group of invoices marked Ex. 2. There are altogether thirty eight invoices appearing at pp. 19 to 28 and pp. 34 to 61 of the second brief of documents. Those invoices are of Weirton Steel Company Division, National Steel Corporation, U.S.A. They plainly state in their relative columns--sold to--Iron and Steel Controller, 33 Netaji Subhas Road, Calcutta, India., These invoices, therefore, also establish that the Defendant company is not the owner or purchaser of these goods but they are purchased by the Iron and Steel Controller. The next documentary evidence is the handling agency contract marked Ex. 3 in this suit. It is dated February 16, 1962. It is in the form of a letter from the Deputy Price and Accounts Officer for and on behalf of the President of India, to the Defendant company. It makes certain points quite clear. They are: (a) the Defendant is authorised by the Steel Controller to handle these imports at, among other places, Calcutta docks, (b) the Defendant, under this agency contract, is to give a bank guarantee upon which the shipping documents would be handed over to the Defendant duly endorsed in his favour, (c) certain rates of remuneration for the services to be rendered by the Defendant as such agent, (d) the materials, as soon as landed in the jetty, shall forthwith be delivered ex-jetty to the party nominated by the Iron and Steel Controller and (e) the payment clause provides that on completion of delivery of such consignment the agent shall submit its bill supported by relevant document to the consignees nominated by the Steel Controller for payment within fourteen days and the amount realised shall be paid by the agent to the Controller, the weekly realisation made during a week being remitted on the following Monday. It also provides that the agent is entitled to recover from the consignees sales and other local taxes wherever levied. There are other clauses also in this agency contract. On the remuneration clause being Clause 2(d) relating to the removal to godown, it expressly makes the agent responsible for the safe custody of Government materials in your possession. That indicates that the goods belong to the Government and the Defendant was only acting as an agent and as such agent the Defendant was responsible for the safe custody of those Government materials. Again under Clause 5 of this agency contract relating to, payment it is provided in para. 5 of Clause 5(b) that the element of importer''s remuneration payable to Indian contractors where materials have been supplied at landed cost should be paid by the consignee and the agent shall arrange to recover that amount from the consignee concerned and remit the same to the Controller. Again by Clause 6 of this agency contract the agent is directed to obtain regular formal orders from the allottees and that supplies should only be made against such formal orders. It is also expressly provided in Clause 5 that this agency agreement is a contract stating

please acknowledge receipt of this contract by returning the duly signed enclosed duplicate copy to this office (the Controller) in unqualified acceptance of the terms and conditions of this contract along with the specimen copy enclosed.

It has already been indicated this was signed formally by the Deputy Price and Accounts Officer expressly for and on behalf of the President of India and in that capacity it was sent by the Deputy Price and Accounts Officer among others to the Ministry of Steel and other Government departments concerned. I am making reference to this point because some argument has been advanced about the formal authority and validity of this agency contract.

This contract for handling agency, in my opinion clearly makes the Defendant an agent. The Defendant is not the importer of these goods. It is the Government of India through the Steel Controller who is the importer of these goods. As I read this handling agency contract, I cannot but come to the conclusion that the Defendant as the handling agent is only working as an agent of the Government to clear the goods at the Calcutta docks, hand them over to the Plaintiff, collect money and remit the same to the Controller. In such circumstances, it is clear to my mind on these facts that the Defendant was not acting as a stockist of these goods or a seller of these goods. They acted as only an agent for the Government in having the import of these goods by the Government, clearness and delivery being made to the allottees. In other words, the Defendant is acting as the clearing agent, the delivering agent, the collecting agent and this is the true nature and legal character of a handling agent under the terms of the contract of handling agency in this case. No doubt, as such agent under the handling agency agreement the Defendant is entitled to certain remuneration for his services and those remunerations are contained in the charges for such services. But such agency charges do not make the agent a principal. I do not read any clause in the handling agency contract marked Ex. 3 dated February 16, 1962, to suggest that the Defendant company had any title to these goods or that the Defendant company could be said to be the seller of these goods in any sense of these terms. The bills of lading were endorsed by the Controller to the Defendant. But that was an endorsement for the purpose of clearing the goods and delivering them to the allottee of the Steel Controller and such endorsements do not make the Defendant the owner and seller of goods in this case. I shall deal with that point of endorsement later on in more detail.

The next document on this issue is the allotment letter dated February 3, 1962. This allotment letter is issued by the Iron and Steel Controller to the Plaintiff company. It expressly refers to the handling agent''s contract No. DH/159/8/APJ/2, dated February 16, 1962 and therefore suggesting that although the letter was formally dated February 3, 1962, it must have been subsequently despatched subsequent to February 16, 1962. A number of points are made clear by this letter. In the first place it recites that it is the Plaintiff company which placed orders on the Controller. In the second place, the Controller is saying that arrangements have been made for supply of these imported steel materials against the Plaintiff''s orders through the Defendant company. It also directs the Plaintiff company to contract the handling agent, the Defendant and arrange for opening an irrevocable and without recourse letter of credit. It also emphasizes by Clause 5 that the Plaintiff company must place the formal order on the handling agent according to the terms of the handling agent''s contract as already indicated. It also by Clause 14 expressly provides that

whenever payments are made to the handling agents against this allotment, the same should be reported immediately to the D.L.F. allotment section as well as import accounts section of this office (Steel Controller). The copy of this allotment letter was sent to the handling agent, the Defendant company, for information. This allotment letter, as I have already indicated, by Clause 2 has provided that the charge would be at col. 1 rate of the price circular ruling at the time of delivery. This rate was amended by the letter dated June 4, 1962, substituting col. 1 rate by landed cost rate. It is needless to add that it is at the landed cost rate that the delivery and collection of price have been made in this case.

The next two documents are the Regularising Orders, one is dated October 15, 1962 and the other is dated October 20, 1962. They are in the form of a letter written by the Plaintiff company to the Defendant. They are under the terms of the handling agent''s contract and the allotment letter requiring formal orders to be placed by the allottee on the agent. These letters ask for the supply of the goods at landed cost rates and calling for bills in duplicate supported by signed challans. Then come the Defendant''s bills to the Plaintiff, marked Ex. 5. The bills dated August 30, 1962 and September 25, 1962, clearly indicate that they are being made pursuant to the allotment letter dated February 3, 1962, as amended on June 4, 1962. They also clearly indicate that this was on account of the Iron and Steel Controller Calcutta and not the Defendant''s own account as a principal or as a seller or owner of goods.

On this documentary evidence I have no hesitation in coming to this conclusion that (i) the Defendant was not acting as a stockholder or a stockist and selling the goods as such; (ii) that the Defendant was acting as the handling agent of these goods of which the importer was the Government of India through the Iron and Steel Controller and (iii) that the price realised was at the landed cost rate in accordance with the Controller''s direction contained in the letter of June 4, 1962, amending the col. 1 rates. I hold that in this transaction the Defendant was not acting as a principal so far as the Plaintiff was concerned. I hold that the Defendant was acting only as an agent and the Plaintiff company knew from the very beginning that the Defendant company was acting as the agent and a handling agent for the Steel Controller.

Apart from the documentary evidence on this point, I shall now refer to the oral evidence on these issues. The Plaintiff''s only evidence is given through Mr. Benoy Krishna Chakravarti. Mr. Chakravarti is a very old man of over 71 years. The relevant answers will be found from Qs. 46-76- He admits that he knew the Defendant company to be handling agents but he tried to say that the Defendant was also a stockist. He had finally to admit in answer to Q. 60 that so far as these goods were concerned he knew that they were imported by the Iron and Steel Controller under the Development Loan Fund I could see his embarrassment in answer to Q. 69 where he was asked whether he knew that those goods were goods which the Iron and Steel Controller were importing, they were allotting them to the Plaintiff company and he confessed that he would not be able to say everything in detail but a purchasing officer of his company by the name of Bibhuti Bhusan Ghose would have been able to speak on this point, but he had died. (See also his answers to Qs.75 and 76). To my mind there is no scope for any doubt on this point that these goods were being imported and were not sold by the Defendant as a stockist and that the Plaintiff company knew it very well all through that they were imported goods both from the agency contract letter as well as from the allotment letter and also from the invoices and the bills. I need only add that in the very allotment letter itself dated February 3, 1962, there is a note at the end of the letter saying:

The above tonnage is being adjusted against your outstanding orders on producers wide planning note No. PPC/1(1)/B-69/72-73, dated July 4, 1962.

The Plaintiff has not disclosed these orders on the producers in this suit but the note under the allotment letter makes it quite clear that these were orders on producers and not on alleged stockists here in India.

The relevant evidence on behalf of the Defendant company on this point is that of Srinivasan and Cherian. The answers of Srinivasan to Qs. 8-22 make it clear that this transaction was under the Development Loan Fund, shortly described as DLF which was assistance given by the United States for imports from their country and that the importer was the Iron and Steel Controller of the Government of India. His further answers to Qs. 169-174 pointed out that the Iron and Steel Controller used to arrange a letter of credit through the Indian Supply Mission, Washington, who were given the necessary assistance from the DLF fund by the American Government. These answers point out that all the documents were in the name of the Iron and Steel Controller and the documents were collected by the Controller and the sale, proceeds were ultimately given to the Controller after the goods had been cleared through the Defendant. Again, in answers to Qs. 196-201 he has explained the procedure of clearing the goods from the Customs. He has further emphasized the fact that there was no import licence for these, materials because the Government of India through the Iron and Steel Controller was the importer and if the Defendant were an importer, then the Defendant would have to have an import licence. On the endorsement of the bills of lading he has also pointed out that he did not become by such endorsement an importer but the Defendant only became a temporary holder of the goods on behalf of the Iron and Steel Controller. In fact, as I have already indicated, the clauses in the agency contract make it abundantly clear that the goods remained the Government goods and it is the agents who are held responsible for the safety of these Government materials. About the bills of lading and their originals, naturally they were not with the Defendant company but with the shippers; but one copy was produced showing the endorsement in favour of the Defendant. But as I have already said, the endorsement does not make the Defendant company either the owner or the seller of the goods in the facts and circumstances of this case (see also Srinivasan''s answers to Qs. 246 256).

The relevant evidence of Mr. Cherion appears in answers to Qs. 5-10, 23-27, 31-34, 42-43, 74-80, 123-25, 189 and 196-98. He makes it quite clear that the prices for these imported steel materials were paid for by the Iron and Steel Controller through the fund in Washington. The Defendant company did not pay for the price of the goods at all. Mr. Banerjee, Learned Counsel for the Plaintiff, suggested that the bank guarantee took the place of the payment of price. I am unable to accept that the bank guarantee given by the Defendant as handling agent for handling goods while the goods were in their custody, could he held by any stretch of fact or law, to be price or ran at all be converted into price. Mr. Cherion makes also the point clear that the Regularising Orders were under the allotment letter in answer to Q. 43. In fact Mr. Cherion in answer to Os. 74-80 said that the Defendant was not a stockist. He also makes it clear in answers to Qs. 126-131 that without the endorsement in the bill of lading the goods could not have been cleared.

Finally, the evidence of Mr. Adhikari, the Deputy Price and Accounts Officer of the Iron and Steel Controller, in answers to Qs. 11-24, 29-33 192-202 makes this clear about the import of these goods by the Steel Controller. He makes it clear that the Defendant was only the handling agent. Secondly, he makes it clear that these materials were imported on behalf of Government of India by the Iron and Steel Controller and out of the DLF fund the payments for these goods were made.

On these facts, I find that the Defendant did not sell and deliver goods as alleged in paras. 1, 2, 3 and 4 of the plaint and I answer issue No. (i) in the negative. On those facts, I also find that the Defendant acted and was appointed as the handling agent of the Iron and Steel Controller and the Defendant acted only as such agent in the transaction in suit as alleged in paras. 1 and 2 of the written statement. I, therefore, answer issue No. (ii) in the affirmative.

Before leaving these issues, I should like at this stage to dispose of the arguments on law made under these issues.

Mr. M.N. Banerjee, Learned Counsel for the Plaintiff, had to contend against the provisions of Section 230 of the Contract Act. That section provides that in the absence of any contract to that effect, an agent cannot personally enforce the contract entered into by him on behalf of his principal, nor is he personally bound by them. Because of this provision Mr. Shankar Ghose, Learned Counsel for the Defendant, submits that in a contract of this nature the Defendant was acting only as an agent for the convenience of the Steel Controller and he cannot be personally bound by them Section 230 of the Contract Act makes three exceptions to this rule and they are: (i) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad, (ii) where the agent does not disclose the name of his principal and (iii) where the principal, though disclosed, cannot be sued. Mr. Ghose submits that the Defendant in this case does not come within any of these three exceptions and therefore, the Defendant cannot be made liable on this kind of a contract and it is only the principal, who is the Steel Controller representing the Government of India, who is liable if at all.

Mr. Banerjee to repel this argument submitted that though the principal, the Steel Controller, representing the Government of India, was disclosed in this case, such principal cannot be sued within the third exception of Section 230 of the Contract Act on the ground that the contract of handling agency in this case was not made in the proper form as required by Article 299(1) of the Constitution. That well-known Article of the Constitution provides in effect that all contracts made in the exercise of the executive power of the Union shall be expressed to be made by the President and all such contracts shall be executed on behalf of the President for such persons and in such manner as he may direct or authorise. Now, Mr. Banerjee is in great difficulty in this respect. In the first place, although the issue was taken in the written, statement that the Defendant was only acting as an agent and not as a principal and that the suit was not maintainable, he did not raise any issue that the handling agency contract pleaded by the Defendant in the written statement was not binding on the Government on the ground of form under Ah. 299(1) of the Constitution. This should have been raised, for, it is a matter of evidence whether the contract was in form or whether it had the authorisation required by the Constitution. The fact however remains, as I have already indicated, that the form in this case is satisfied Because the handling agency contract marked Ex. 3 in this suit dated February 16, 1962, expressly says that it is so and prima facie declares that the Deputy Price and Accounts Officer was acting expressly for and on behalf if the President of India. I have already referred to this part of the handling agency agreement while dealing with this provision. If it be Mr. Banerjee''s contention that the Deputy Price and Accounts Officer was not authorised by the President then it was for him to say that he was not authorised in the manner he signed in the agency contract, but Mr. Banerjee has not done so. Therefore, I must find on the facts that the contract was not bad on that ground under Article 299(1) of the Constitution and that Mr. Banerjee''s client, the Plaintiff company, cannot come within the third exception that the principal, because of Article 299(1) of the Constitution, could not be sued in this case.

The next difficulty of Mr. Banerjee is that the third exception u/s 230 of the Contract Act provides for the case where the principal could not be sued and Mr. Ghose submits that the expression means that there was an inherent impossibility or incapacity for suing the principal and it does not apply to a case where an attempt is being made to avoid a contract which is otherwise good and does not relate to any inherent incapacity or disqualification for the principal being sued. It will not be necessary to decide that point having regard to the first finding of fact that the contract in this case is not bad under Article 299(1) of the Constitution.

Mr. Ghose for the Defendant company then submitted that even if the contract were bad for its form under Article 299(1) of the Constitution, the principal in this case could be sued on the basis of quantum merit for having charged and received the benefit of excess money, which is the Plaintiff company''s real case. Mr. Ghose supports this branch of his submission by relying on the decision of the Supreme Court in the case of State of West Bengal Vs. B.K. Mondal and Sons, where the following observation of Gajendragadkar J. appears:

What Section 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of Section 70.

In this view of the matter it will be unnecessary to deal with the Supreme. Court decision in Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and Others, dealing with a point arising under the Representation of the People Act and to which reference was made by Mr. Banerjee. Even in the latest decision of the Supreme Court in Mulamchand v. State of Madhya Pradesh AIR 1958 S.C. 1218 (1222) it has been affirmed and clearly laid down that the provisions of Section 70 of the Contract Act can be invoked by the aggrieved party to the void contract and that a person whose contract is void for non-compliance with Article 299(1) of the Constitution would be entitled to compensation u/s 70 of the Contract Act.

Mr. Ghose says that Mr. Banerjee''s submission that the Plaintiff has not sued the Government of India through the Steel Controller on the ground that the contract was bad under Article 229(1) of the Constitution, should not be sustained because that has never been the case of the Plaintiff company in the plaint. The Plaintiff''s case in the plaint was that the Defendant acted as a principal in the transaction as a stockist and seller of the goods and not as an agent. The Plaintiff company chose that course in the plaint although it knew at the time of filing it that there was this agency contract between the Defendant and the Government and although the Government had described the Defendant as handling agent in its letter and correspondence between the Plaintiff company and the Government. Mr. Ghose, therefore, says that if the Plaintiff company had raised the question, many other facts would have come to light including the question of ratification such as was pointed out by the Supreme-Court in Laliteshwar Prosad Sahi v. Bateswar Prasad AIR 1968 S.C. 580 (585).

For these reasons I am unable to uphold Mr. Banerjee''s argument that the principal, viz. the Government of India representing the Steel Controller, could not be sued in this case on the ground of the contract being hit by Article 229(1) of the Constitution.

Mr. Banerjee for the Plaintiff then fell back upon the nature and character of the handling agent''s contract in this case. He relied on the decision of a learned single Judge of this Court in Pasupati Gorai v. Brindaban Khan ILR (1951) Cal. 82 and tried to use the observation that a handling agent in some circumstances would be personally liable even though he acted as a handling agent. That case, in my view, had no application to the facts of this case. That was a case on the Cotton Cloth and Yarn Control Order, 1945, whose provisions were very different from the provisions of the Steel Control Order in this case. Besides, there the learned Judge, G.N. Das J. came to certain specific findings of fact which are all absent in the present case and they are

(i) in this case in my opinion, it would be a misnomer to describe the Defendant as an agent of the Government and (ii) in the present case, the contract was professedly made by the Defendant in his own name and not as an agent and credit was given to the Defendant. An agent who signs a contract in his own name without qualification, though known to be an agent, is understood to contract personally, unless a contrary intention plainly appears from the body of the instrument (Supra) p. 85.

Now these two facts distinguish that case entirely from the present case. There the learned Judge came to the finding of fact that it was a misnomer to describe the Defendant as an agent and that he signed the contract in his own name and not as an agent and there was no contrary intention. Not one of these factors is present in the present case before me. Here the contract is openly and expressly signed as for and on behalf of the President of India and the letter of allotment describes the Defendant as a handling agent, with full notice of such facts he has only to deliver the goods and collect the money and pay over the price to the Government represented by the Steel Controller.

On the nature of the legal incidence of the relationship between the Plaintiff and the Defendant Mr. Banerjee for the Plaintiff then advanced the argument that endorsement of bill of lading in this case transferred full title to the Defendant company and the Defendant company became the owner and seller of goods and as such liable as a principal to the Plaintiff for any excess payment received. He relied on Section 1 of the Indian Bills of Lading Act providing:

Every consignee of goods named in a Bill of Lading and every endorsee of a Bill of Lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit and be subject to the same liabilities in respect of such goods as if the contract contained in the Bill of Lading had been made with himself.

Relying upon the expression to whom the property in the goods shall pass upon or by reason of such endorsement in Section 1 of that Act, Mr. Banerji argued that the endorsement by the Steel Controller of the bill of lading in this case to the Defendant makes the Defendant primarily and principally liable. This expression, in the Bills of Lading Act is a celebrated expression and has been judicially noticed and explained in many leading authorities. It will not be necessary to cite all the authorities for the exposition of the meaning and the interpretation of that expression in the Bills of Lading Act. The conclusion to which these authorities lead, is that mere endorsement by itself without the context, may not lead to the conclusion that the endorsee gets the title to the goods. In vol. II of British Shipping Laws under the title of Carriage, by Seat published in 1963, the new edition of Carver''s classical work on Carriage of Goods by Sea and now edited by Mr. Raoul P. Golinvaux (p. 1074) the present law is briefly stated in the following terms:

There have been great differences of opinion among learned Judges as to the legal effect of a transfer of a bill of lading, duly endorsed, in regard to the vesting of the property in the goods. On the one hand, the view appears to have been that where there has been a real transfer of the bill of lading, not a mere handing to an agent, nor a possession obtained by a thief, the property in the goods, as well as the right to possession follows the bill of lading.

On the other hand, the view now established is that the bill of lading merely represents the goods, not the right to them and that possession of it is only equivalent to a physical possession of them. The right of property in the goods, depends upon the transaction between the parties, of which the transfer of the bill of lading may or may not have been an accident.

Such a transfer indicates nothing more than a delivery of the goods would do. It may have accompanied a sale of the goods; or it may have been given to complete a pledge; or, again, merely to enable an agent to obtain delivery.

Here the facts established show that this endorsement of the bill of lading was merely to enable the agent to obtain clearance and delivery from the port and the customs.

The classical authority on this subject is the decision of the House of Lords in J. Sewell and Nephew v. James Burdick 10 A.C. 71 (84). Earl of Selbourne L.C. observed:

The statute contemplates the passing of ''the property in the goods'' by the indorsement in the bill of lading, as a thing which may or may not happen according to the nature and intent of the contract or dealing, for the purpose of which that indorsement is made and it seems to provide for those cases only in which the property so passes as to make it just and convenient that all rights of suit under the contract contained in the bill of lading should be ''transferred to'' the endorsee and should NOT any longer continue in the original shipper or owner. One test of the application of the statute may perhaps be whether according to the true intent and operation of the contract between the shipper and the indorsee the shipper still retains any such proprietory right in the goods, as to make it just and reasonable that he should also retain the rights of suit against-the ship-owner, under the contract contained in the bill of lading. If she does, the statute can hardly be intended to take from him those rights and transfer them to the indorsee.

SO. Lord Bramwell put the legal position in the following words (Supra) p. 105:

Now the truth is that the property does not pass by indorsement but by the contract in pursuance of which the indorsement is made.

It was, therefore, held that in that case the indorsement of the bill of lading was only by way of a pledge for a loan and it did not pass the property in the goods to the indorsee. The principle enunciated by this authority and as found in the present law, is that the property does not pass by the mere fact of indorsement but the contract and the context in which the indorsement is made must always be taken into consideration to see for what purpose the indorsement was made. If the context of the contract shows that the indorsement was for the purpose, for instance, to pledge the goods with the bank by indorsement in the bill of lading, then the bank does not become the owner of the goods; or again, if the context of the contract shows that the bill of lading was indorsed to an agent to take delivery of the goods, then that indorsement does not create title to the goods in the agent. Here I am satisfied on the facts and on the context as well as on the terms of the contract that the indorsement was only for the purpose of taking delivery and distributing the goods and that was clearly and expressly provided in the handling agency contract stipulating for such indorsement.

For these reasons, I am bound to hold that the Defendant company cannot in law as agent be made liable in the facts and circumstances of the case. I, therefore, confirm my answers by answering issue No. (i) in the negative and issue No. (ii) in the affirmative, both on facts and law.

Issue No. (iii):

This third issue relates to the question whether the prices mentioned in the Regularising Orders of the Plaintiff dated October 15, 1962 and October 19/20, 1962, were the agreed prices of the goods, as alleged in para. 2(c) of the written statement.

I have already set out the terms and purport of these Regularising Orders. Having regard to their dates, being October 15 and 20, 1962 and therefore, coming after the letter amending the rate and dated June 4, 1962, it seems to me to follow irresistibly that the agreed prices were the landed cost rates. The reason is that there was no other rate ruling at that time. The Regularising order dated October 15, 1962, clearly mentions landed cost rates. If they were not agreed at that time, then obviously there would have been some protests from either party. But there was none. At that point of time, viz. October 15 and 20, 1962, the landed cost rate was the agreed rate. The bills which had been given prior to these Regularising Orders and marked as Ex. 5 and dated August 30, 1962 and September 20, 1962, openly, clearly and unequivocally set out the landed cost rate. These bills were immediately before the Regularising Orders were issued by the Plaintiff and could only have been on the basis of these bills.

The oral evidence is brief. Mr. Chakrabarti, the Director of the Plaintiff company, in answer to Q. 15 attempted to say that the Plaintiff received a pro forma and a provisional rate and made the payment accordingly. But the question is, was it a provisional rate at that time or was it the rate agreed upon at least at that point of time. In fact, in answer to Q. 85 Mr. Chakrabarti admits that the Plaintiff wanted these goods at those rates and they were supplied between August 6, 1962 and September 4, 1962. See Mr. Chakrabarti''s answer in cross-examination to Qs. 82 to 89. In anwer to Q. 89 Mr. Chakrabarti said that the Plaintiff company gives on the basis of such rate and in fact a refund of only Rs. 17,501-62 P. was due by the Defendant to the Plaintiff to enable to close the account of the Defendant completely and that is what the Plaintiff company wrote even in its letter of December 17, 1962, to the Defendant. Even on these answers of Mr. Chakrabarti, the Director of the Plaintiff company, it follows that the landed cost rates were the agreed prices at that time. The Defendant''s witness Mr. Srinivasan confirms that view in his answers to Qs. 45 to 49 and saying that this sum of Rs. 17,501.62 P. was refunded and accounts were closed between the Plaintiff and the Defendant.

It would be necessary here at this stage to refer to the letter of Mr. Srinivasan dated July 24, 1962, written on behalf of the Defendant company to the Plaintiff. It reads as follows:

Further to our letter No. Ms/APJ/DLF-159 dated July 23, 1962, we understand from the Iron and Steel Controller that the price will only be provisional. In such a case we confirm that we will refund any excess that may become advisable if the prices are finally fixed at lower rate.

The idea, therefore, of provisional rate is supposed to arise from this letter and Mr. Chakrabarti, Director of the Plaintiff company, in his evidence quoted above referred to this idea of provisional rate in his answer to Q. 15. But the point about this letter is it refers to a letter dated July 23, 1962, which has not been produced either by the Plaintiff company in its original or in its copy by the Defendant. Nothing on record nor any of the disclosed letters from the Steel Controller shows that the rate was provisional. If only it was established or proved to be provisional by any letter from the Steel Controller then only in that case the question of refund of excess "could arise." Again upon this letter it has been commented by Mr. Ghose that neither the two bills of August 30, 1962 and September 25, 1962, charging landed cost rates either quoted this letter of July 24, 1962, or suggested that the rates were provisional. What those two bills of August 30 and September 25, 1962, did was to quote only the allotment letter and its amendment showing the landed cost rates and nothing else. The respective interpretation or reading of the arrangement by either the Plaintiff or the Defendant about rates fixed by the Steel Controller cannot either bind the Steel Controller or import or qualify by the introduction of a new rate or make the agreed rate provisional. I shall deal later on with this letter insofar as it is an admission by the Defendant to refund the excess, a point on which Mr. Banerjee largely used this letter of July 24, 1962.

For these reasons I answer issue No. (iii) in the affirmative.

Issue No. (iv)

This issue raises the question about the prices finally fixed by the Iron and Steel Controller for the goods in suit. The issue is: "What were the prices, if any, finally fixed by the Iron and Steel Controller for the goods in suit as alleged in para. 5 of the plaint?" In para. 5 of the plaint it is pleaded that on or about December 19, 1962, the Controller fixed the price payable by the Plaintiff in respect of these goods and the Defendant is only entitled to the price fixed by the Controller at that rate.

Now, the letter of December 19, 1962, is the letter from the Assistant Iron and Steel Controller to the Defendant and reads as follows:

I am to invite a reference to the above and to say that ''Tin mill Black Plates'' released under the above allotment letters are to be charged at col. 1 rate as per this office price circular. In view of this office amendment letter Nos. DLF(A)/159/8/BSEDLF (A)/159/8/BE and DLF(A)/159/8/SE. all dated 4.6.62, may be treated as cancelled. The supply of the materials are to be made in accordance with the terms and conditions as stipulated in, the original allotment letters mentioned under reference above.

It is on the basis of this letter that the Plaintiff company makes its present claim for refund. In order to appreciate the context, it is necessary to refer to different letters in this connection relating to the change in the prices for the said goods as fixed by the Iron and Steel Controller.

The first date is February 19, 1962, which is the date of the allotment letter. In para. 2 of that allotment letter the price of the goods in suit were fixed at col. 1 rate. The second date of importance in this connection is June 4, 1962, being the date of the letter of the Deputy Price and Accounts Officer of the Iron and Steel Controller to the Plaintiff amending the price fixed in the allotment letter and fixing the price of these goods at the rate of landed cost ex-jetty. The delivery of these goods and the collection of price from the Plaintiff company by the Defendant were made at the rates so fixed on the landed cost basis, because the delivery in this case took place between August 6, 1962 and September 4, 1962. Therefore, at the time of delivery of the goods in suit the Steel Controller''s order of June 4, 1962, fixing the price at the landed cost rate was the ruling rate. The contract was fully performed and executed by delivery and payment of price when the landed cost rate was the rate fixed by the Controller. The question now is that, can the Plaintiff claim the refund because of the alleged subsequent revision by the Steel Controller of these prices after delivery and payment of price and when the contract is fully executed and performed? For this purpose certain other dates are material.

After the delivery was completed and on October 3, 1962, was another notification from the office of the Iron and Steel Controller, No. AP/Cir/18/62 which reads as follows:

It is clarified for general information that item 9B--Cold Rolled Sheets, thickness 3.15 mm. to 2.00 mm. of Schedule No. IV--Prime Quality Steel and Semis of Iron and Steel Controller, Calcutta''s notification published in the Gazette of India dated 4.11.61 as amended from time to time, includes Tin-mill Black-plates.

It will be recalled that the goods in suit are called Tin-mill Black-plates. The point about this clarification is this that when the allotment letter dated February 3, 1962, was issued fixing the price at col. 1 rate of the price circular, it was found that the price circular of that time did not at all include tin-mill black plates. That is the reason why that rate was amended by the letter of June 4, 1962, to say that as tin-mill black plates were not covered by that circular, the rate of price will be the landed cost. By this circular marked Ex. F, dated October 3, 1962, what is intended to be done is to introduce col. 1 rate by saying that the cold rolled sheets mentioned in that circular would include tin-mill black plates. This circular of October 3, 1962, marked Ex. F, was ex post facto after the contract had been performed by delivery. This was followed by the letter of December 19, 1962, pleaded in para. 5 of the plaint, written by the Steel Controller''s office to the Defendant and which I have mentioned above and a copy of which letter was sent to the Plaintiff company by the Steel Controller. It only affirms in effect the circular of October 3, 1962. But, thereafter, nothing happens until April 3, 1963, when the Steel Controller writes again to the Defendant company confirming that the rates of tin-mill black plates were to be charged at col. 1 rates and giving the break up value and price at Rs. 997-78 P. for items 6, 7 and 8 and Rs. 1,004 67 P. for items 9, 10 and 11 respectively and whose base prices were Rs. 922.

To complete the picture, the next date is August 16/17, 1966, written by the Deputy Price and Accounts Officer of the Iron and Steel Controller, No. DLF/Accounts/159/8/APJ/494 of the Government of India, Ministry of Iron and Steel, to Messrs Sur Enamel and Stamping Works Pvt. Ltd. and a copy of which was sent both to the Plaintiff company in this suit and the Defendant. This letter is marked Ex. 6A. The letter reads as follows:

It is regretted that the Tin-mill Black plates supplied to you by the handling agent Messrs Apejay Pvt. Ltd. prior to October 3, 1962, cannot be charged at column 1 price as there was no statutory price for the materials in question at the time of despatch thereof. In the circumstances, cost of the materials delivered prior to the aforesaid date will have to be revised at the imported prices.

This was sent to the Plaintiff company with the note:

For information and necessary action. They are requested to furnish statement showing particulars of the Tin-mill Black-plates delivered to them prior to 3rd October, 1962 and of the quantity delivered on or after 3rd October, 1962, as cost of the materials supplied by the handling agent prior to 3rd October, 1962 will have to be realised at imported prices.

To the same effect was a note appended in that letter whose copy was sent to the Defendant company asking the Defendant company for statement showing particulars of materials despatched prior to October 3, 1962,

for purpose of finalisation of accounts in respect of Tin-mill Black-plates imported against the contract and delivered to the enamel companies.

The effect of this letter is far-reaching. It means on the face of it that the price re-fixed at col. 1 rate by Ex. F of October 3, 1962, would only cover deliveries made after and subsequent to October 3, 1962 and the deliveries made prior to October 3, 1962, were to be charged at the landed cost rate, which is the same as the imported price and which was fixed by the amending letter of June 4, 1962. On the basis of that letter marked Ex. 6A no claim for refund by the Plaintiff company can succeed.

At this stage reference may once again be made to the letter of July 24, 1962, which I have quoted above and by which the Defendant company agreed to refund any excess provided that any lower rate is fixed by the Steel Controller. Mr. Banerjee for the Plaintiff, company has argued that this letter is an admission of liability to refund the excess if a lower rate is fixed. But then the question is has the lower rate been fixed amending the letter of June 4, 1962, fixing the landed cost rate? The interlude represented by Ex. F, the circular dated October 3, 1962, made an attempt to revert back to the col. 1 rate, but it was ultimately decided by the letter of August 16/17, 1966, marked Ex. 6A that whatever had been delivered prior to October 3, 1962, must be governed by the landed cost rate as fixed and whatever was delivered subsequent to October 3, 1962, would be covered by the col. 1 rate as indicated in Ex. F dated October 3, 1962. The admission therefore of July 24, 1962, contained in the letter written by the Defendant company to the Plaintiff company has to be read on its own terms which are that if the price fixed by the Steel Controller is provisional and secondly, if the Steel Controller changes the rate at a lower rate, lower than the landed cost. But then there is no admission in that letter saying that the Steel Controller cannot change the rate after any particular date. The letter of July 24, 1962, taken on its plainest term can only mean this that whatever and whenever the Steel Controller changes the rate and if such rate is lower, then it is only in that case that the Defendant company will agree to refund the excess. That seems to me sensible and businesslike enough.

I shall refer at this stage briefly to some part of the oral evidence on this point. The relevant oral evidence is of S.C. Adhikari, the Deputy Price and Accounts Officer of the Iron and Steel Controller. He makes the position quite clear in his answers to Qs. 7 to 10. The gist of his answers is this that if before October 3, 1962, the delivery had been completed then the landed cost rate would apply to this case and if the delivery was after October 3, 1962, then the col. 1 rate would be applicable. It follows that as the delivery in this case was completed before October 3, 1962, the final price fixed by the Steel Controller was the landed cost rate for the goods in suit on the ground that they were delivered before October 3, 1962. He makes it plain again in answer to his Qs. 25 to 28. He explains how the original allotment letter mentioning the col. 1 rate was amended to the landed cost rate in answer to his Qs. 100 to 106 and Qs. 112 to 114. Mr. Adhikari''s answers again to Qs. 120 to 128 explain how the landed cost rate came to be applied to deliveries before October 3, 1962 and col. 1 rate to deliveries after October 3, There he says that the col. 1 rate introduced by Ex. F, the circular, dated October 3, 1962, cannot be applied retrospectively to contracts executed and performed by delivery of goods prior to that date. In fact, Mr. Adhikari in answer to Qs. 151 to 154 from this Court said that in this case, according to the letter (circular) dated August 16/17, 1966, marked Ex. 6A, the rates have been correctly charged and there is no excess payable or refundable to the Plaintiff company in respect of the goods in suit. Incidentally, when Mr. Chakrabarti, the. Director of the Plaintiff company, was confronted with this circular of August 16/17, 1966, marked Ex. 6A, he said he could not recall receiving a copy of this letter and the correspondence used to be kept by Bibhuti Bhusan Ghose who had died. Exhibit 6A, however, clearly indicates that a copy of it was sent to the Plaintiff company. It is not disclosed by the Plaintiff company but by the Defendant.

In answer to Qs. 215 to 216 from this Court Mr. James Cherian, a Director of the Defendant company, explains the attitude of the Defendant company in this respect by saying that the merit of the defence of the Defendant company lay first in the fact that the money collected by the Defendant company as the agent of the Iron and Steel Controller from the Plaintiff company had already been handed over to the Steel Controller under the specific clauses of the handling agency contract and therefore, the money is not in the hands of the Defendant company so that they could pay it back to the Plaintiff and secondly, having regard to the revision of the rate finally in 1966 refixing the price at the landed cost the parties have been put back to the same position as on the date the amending letter of June 4, 1962, so that no refund could be given at all to the Plaintiff company on the basis of Ex. 6A. Mr. Cherian''s answers to Qs. 84, 86 and 95 are also in support of this. Mr. Srinivasan supports both Mr. Adhikari and Mr. Cherian in his answers to Qs. 54 to 56.

In fact, it need hardly be emphasized that the Schedule A to the plaint shows that the Plaintiff company even made these payments between July 19, 1962 and August 27, 1962, for these goods.

Mr. M.N. Banerjee, Learned Counsel for the Plaintiff company, naturally attacked the validity and the propriety of this fixation of prices by the Steel Controller on August 16/17, 1966. His submission was that this fixation represented in Ex. 6A was made while this suit was pending; His next submission was that Ex. 6A was at best a letter but not a circular or notification. His third submission was that Ex. 6A was issued with an ulterior motive. His last submission was that Ex. 6A was beyond the power of the Steel Controller. Now, these arguments require consideration. The fact that Ex. 6A was issued while the suit was pending is obvious. Whether it is legal or not, any decision arrived here when the Government or the Steel Controller is not a party to the suit, will not be binding on the Government or the Steel Controller. About ulterior motive, Mr. Banerjee for the Plaintiff suggested this to Mr. Adhikari in Q. 134. The suggestion was refused and denied by Mr. Adhikari. In his answer Mr. Adhikari has said that this was done only on the advice of the Law Ministry tendered to the Iron and Steel Controller. In fact, Mr. Banerjee went to the length of asking for a copy of this legal advice and it was produced and this will be found from Mr. Adhikari''s answers to Qs. 135-39. On that evidence, I cannot hold that this Government letter or notification was inspired by any ulterior motive to protect the Defendant company or for any other purpose. Mr. Adhikari''s further answers to Qs. 142-147 and 149-50 confirm that conclusion.

Mr. Banerjee then criticised Mr. Adhikari in cross-examination on Ex. 6A on the point why copy of this Ex. 6A was not sent to the Deputy Director of Audit. This line of cross-examination of Mr. Banerjee will appear from Qs. 165-190. In answer to Q. 179 Mr. Adhikari said that there might have been an omission in not sending it to the Deputy Director of Audit but he says it was sent to many other departments concerned. About the necessity for the notification in the gazette, he has explained that when the col. 1 rate was changed to landed cost for tin-mill black plates, such gazette notification was not necessary and that would be found in his answers to Qs. 188-89.

Mr. Banerjee contends that Ex. 6A cancels letter of December 19, 1962, but does not cancel Ex. F dated October 3, 1962. Nor does it cancel the allotment letter dated February 3, 1962. But the point remains that it does not need to cancel Ex. 5, but it only said and explained that Ex. 5, referring to col. 1 rate, would be applicable only to those cases where delivery was made after October 3, 1962, which was the date of Ex. M and not to cases where deliveries had already been made and completed before October 3, 1962. That is, therefore, the answer to Mr. Banerjee on that point. Again, although Ex. 6A does not cancel the allotment order as indeed it could not, the allotment letter of February 3, 1962, can only be read with its amendment of June 4, 1962. That again is the answer to the further submission of Mr. Banerjee.

Mr. Banerjee''s submission for the Plaintiff company that the Steel Controller has no power to revise prices in respect of the goods in suit on August 16/17, 1966, as in Ex. 6A, now requires examination. If Mr. Banerpee''s point is that after certain point of time the (Steel Controller doses his power to revise or fix the rates, then the moot question would be: how long does that power exist with the Iron and Steel Controller? Can it then be said, even assuming Mr. Banerjee''s submission for the time being, that the power cannot be exercised after certain time? The question would arise: would the power even then be exercised on the basis of Mr. Banerjee''s argument even after the contract has been fully performed by delivery and (execution? If Mr. Banerjee''s point is correct, then the further fixation by the Steel Controller after the execution and performance of the contract would not affect the parties and in that event, the landed cost rate was the rate under which the contract was performed and executed. The fact that the revision in this case occurred on August 16/17, 1966, while the suit was pending cannot in my view, affect the question at all of the legal power of the Steel Controller. In the first place, the Steel Controller or the Government of India was not made a party to this suit, in spite of the fact that in the written statement filed by the Defendant as early as April 3, 1966, this point was specially taken. Either the Steel Controller has the power to fix prices, as he has done, or he has not. The question of a suit to be filed is, in my view, immaterial unless the suit directly involved the Steel Controller and raises the issue on his power and such suit is pending and a revision is made while it is so pending. But that is not the case here.

I shall examine Mr. Banerjee''s submission on this point of the power of the Steel Controller to revise or fix prices under the Iron and Steel Control Order, 1956.

These provisions leave little room for doubt in my mind that the Iron and Steel Controller has the power to fix the maximum prices from time to time and the word is from time to time. It is also within his power to revoke not only an allocation but also any other special or general written order issued in exercise of the powers conferred by him by any clause of this order. Therefore, if by Clause 15 he has issued an order fixing the price at a particular rate, he has the power under Clause 28A to revoke that order. It is precisely because of Clause 28A of the Steel Control Order providing for reasonable opportunity to parties affected by the revocation to show cause that the interpretation given to Ex. F was made, viz., that the date of Ex. F, October 3, 1962, was the date from which col. 1 rate was applicable without affecting past deliveries made, prior to October 3, 1962 and when a contract had been performed by execution and delivery.

I need hardly add that Section 3 of the Essential Commodities Act, 1955, deals with the powers to control production, supply distribution etc. of essential commodities. The Steel Control Order comes within its ambit and so does the provision relating to fixation of fair prices for equitable distribution.

For these reasons I hold in the first instance that the price finally fixed by the Iron and Steel Controller for the goods in suit must be either, (i) the price that was fixed and on the basis of which the goods were delivered and the contract was performed and executed, which in this case I hold to be the landed cost rate, or (ii) by any order fixing or revising the price issued by the Steel Controller, which in this case must be the price fixed by the letter or circular dated August 16/17, 1966, even though it was issued while the suit was pending. I, therefore, answer issue No. (iv) accordingly. Under this issue No. (iv) I hold that the prices were not finally fixed as alleged in para. 5 of the plaint I, therefore, answer issue No. (iv) in the negative.

Issues Nos. (v) and (vi):

I propose to take up these two issues together. They are briefly the issues of (i) estoppel and (ii) accord and satisfaction. Paragraph 2(h) of the written statement raises the issue of estoppel and para. 2(j) raises the question of accord and satisfaction as a defence to this action.

The estoppel is pleaded by the Defendant in the written statement in these terms. It says that the Defendant realised from the Plaintiff the sum of Rs. 7,47,452-45 P. as the price of these materials and the Plaintiff represented to the Defendant that such sum-was the true and correct price on which the Defendant could act. The Defendant relied and acted on such representation and suffered detriment. Therefore, it is contended that the Plaintiff is estopped and precluded from alleging that the said sum of Rs. 7,47,45245 P. was not the correct price.

The letter of December 17, 1962, from the Plaintiff to the Defendant shows that the Plaintiff is writing to the Defendant that on a scrutiny of the Plaintiff''s books of account a sum of Rs. 17,501-62 P. was paid in excess to the Defendant for the supply of these goods. Therefore, this letter says: We would request you to kindly arrange to refund Rs. 17,501-62 P. to enable us to close your account with us. This particular figure was arrived at after giving details of bills and payments earlier in that letter. It is contended by the Defendant that this letter clearly indicates that the Plaintiff company represented that Rs. 17,501-62 P. was the only sum to be refunded to close the entire account between the Plaintiff and the Defendant. This, the Defendant says, it did by refunding the excess claimed. It is noteworthy that this letter was written even after the deliveries had been made and concluded and even after the circular marked Ex. F dated October 3, 1962, reverting to col. 1 rate by deeming provision which I have already quoted elsewhere in this judgment. The submission on behalf of the Defendant is that Ex. F which was a circular for general information, as it said so expressly, must have been known to the Plaintiff company when they were writing this letter of December 17, 1962 and in any event the Plaintiff must have come to know of the rate being changed over to col. 1 rate by the letter of December 19, 1962, written by the Steel Controller to the Defendant and a copy of which was sent to the Plaintiff company. So, by December 17 or 19 the position was quite known to the Plaintiff company and if the Plaintiff company''s present claim is right, then Rs. 17,501-62 P-was not the only amount refundable but very much more. But that was not claimed. It must be mentioned here that this refund of Rs. 17,501-62 P. was made, by the Defendant to the Plaintiff, as shown by the two sums in Schedule A of the point, on December 31, 1962 and February 15, 1963. It is said by the Defendant company that these payments were received by the Plaintiff company pursuant to the letter of December 17, 1962, without any protest or objection that there was a larger sum payable as a refund by that time. I shall only conclude this part of the issue of estoppel by a brief reference to the evidence of Mr. Chakravarti, Mr. Srinivasan and Mr. Chterian. Mr. Chakravarti''s evidence is to be found in answers to Qs. 85 to 92 on this letter of December 17, 1962. He admits in answer to Q. 89 that this letter suggests that on refund of Rs. 17,501-62 P. the Plaintiff''s account would be closed with the Defendant and he also admitted in answer to Q. 92 that the amount which was demanded back was paid by the Defendant to the Plaintiff pursuant to that letter. To the same effect are the answers given by Mr. Srinivasan to Qs. 47 to 49. Mr. Cherian says the same thing in answer to Qs. 87 to 89.

On this evidence and on these facts as I find I have come to the conclusion that there has been no estoppel which can operate against the Plaintiff company. The letter of December 19, 1962, on which the Defendant is basing its whole plea of estoppel against the present claim of the Plaintiff has nothing to do with the controversies in suit. It has nothing to do with the present claim of the Plaintiff for refund on the basis of change of rates. The claim for refund of the sum of Rs. 17,501-62 P. in the letter of December 17, 1962, was the excess paid on the basis of the rates themselves and not due to any change in the rates. Closing of accounts, therefore, meant the accounts as they were without the influence of the change of rates.

Estoppel occurs when u/s 115 of the Evidence Act a person has by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief and then neither he nor his representative shall be allowed in any suit or proceeding between himself and such other person to deny the truth of that thing. The representation here contained in the letter of December 17, 1962, had nothing to do with the claim or refund arising because of the change in the rates. The refund mentioned in the letter was not a refund on that basis at all. Therefore, there was no representation on the fact in issue in this suit and in the present claim of the Plaintiff. 1 therefore hold that there was no estoppel as alleged in para. 2(h) of the written statement. I answer issue No. (v) in the negative.

The next issue is issue No. (vi) raising the defence of accord and satisfaction. This is pleaded in para. 2(i) of the written statement.

This pleading in para. 2(i) of the written statement is really based on the letter of December 17, 1962, relating to the sum of Rs. 17,501-82 P. What is being said by the Defendant is that the payment of this sum of Rs. 17,501-62 P. constituted accord and satisfaction of the Plaintiff''s claim against the Defendant in this suit. I am unable to accept this contention of the Defendant. I shall state my reasons briefly.

One reason, of course, is the same as in the issue under estoppel. That reason is that this claim for refund of Rs. 17,501-62 P. has nothing to do with the claim for the refund of the present sum of money in this suit and therefore, there could be no accord and satisfaction on this point, now the subject-matter of the suit.

The other reasons can be examined in the light of Sections 62 and 63 of the Contract Act. Section 62 of the Contract Act provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. This really is the principle of novation, rescission or alteration of contract. But the basis of this doctrine is that both the parties must agree to substitute a new contract for the old one or for the original contract or to rescind or alter it.

I cannot read or interpret the letter of December 17, 1962, as in any way substituting a new contract suggesting that the Plaintiff will not make any claim for any refund that may or may not arise by reason of the change in the rates of prices fixed by the Iron and Steel Controller. Nor is there any rescission or alteration within the meaning of Section 62 of the Contract Act on this particular claim now made in this suit by the Plaintiff.

Then comes the cognate doctrine recognised by Section 63 of the Contract Act by which the promisee may dispense with or remit performance of a promise. Section 63 of the Contract Act provides that--

every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him or may extend the time for such performance, or may accept instead of it any performance which he thinks fit.

This again raises a choice between two courses or a choice between one contract and another or its substitution or dispensation or remitting the performance of the old contract. What is the contract in issue in this suit? That is whether the Plaintiff company is entitled to claim a refund of price paid at one rate which is subsequently altered to another rate by the Steel Controller. Now, that is what I do not think has happened by reason of his letter of December 17, 1962 Section 63 is said to be something of the nature of accord and satisfaction doctrine in English Law of Contract. It must, however, be emphasized here that Section 63 of the Contract Act in India is very different from the Common Law of England where this defence of accord and satisfaction could only mean that it was competent for both parties to an executory contract by mutual agreement without any satisfaction to discharge the obligation of that contract. But an executed contract could not be discharged in that way.

It is now well-established that u/s 63 of the Contract Act neither consideration nor an agreement is necessary but a promisee can only dispense with the performance of the promise by voluntary conscious act. It must, however, be an affirmative act on his part. A mere omission to assert his right cannot amount to a dispensation within the meaning of the section and it has been held that even negligence to assert such rights, although it might even in certain cases result in an estoppel, cannot possibly amount to a dispensation within the meaning of the section. The decisions of the Privy Council in Chunna Mal Ram Nath v. Mool Chand Ram Bhagat 55 I.A. 154 : AIR 1928 P.C. 99, AIR 1935 79 (Privy Council) and Phoenix Mills v. M.H. Dinshaw and Company ILR Bom. 469 are relevant authorities on that point indicating the view I have just expressed.

On the facts here and on the terms of the letter of December 17, 1962 and on the law, as I understand it and on the above all authorities I am satisfied that there was no accord and satisfaction as alleged in para. 2(i) of the written statement and the Plaintiff''s acceptance of the sum of Rs. 17,501-62 P. did not amount to accord and satisfaction in respect of the Plaintiff''s present claim in this suit. I, therefore, answer issue No. (vi) in the negative.

Issue No. (vii):

This is an issue which raises the question whether the Defendant made any representation as alleged in paras. 10(b) and (f). This is alternatively claimed as damages for deceit. Mr. Banerjee, Learned Counsel for the Plaintiff, gave up this issue wisely because the Iron and Steel Controller in this case informed the Plaintiff of the prices in the letter of June 4, 1962, that such prices would be the landed costs and there could be no decrepit practised by the Defendant company. It is, therefore, not necessary to answer issue No. (vii) any more. But were it necessary, I would have no hesitation in answering if in the negative.

Issue No. (viii):

This issue raises the-question of a state of fact. The issue is, was there any mistake of fact as alleged in para. 12 of the plaint and if so, did the Plaintiff discover such mistake on April 3, 1963?

The mistake that is pleaded in the plaint is a mistake of fact. It is said that the mistake was that the Plaintiff paid to the Defendant a sum of Rs. 7,47,452-45 P. not knowing that the price payable for the goods was Rs. 6,62,885-38 P. Such mistake, it is alleged, was discovered for the first time on April 3, 1963.

Now, what is the mistake in this case. Is it a mistake at all of any of the parties or is it a mistake of a third party? The main difficulty on this issue so far as the Plaintiff company is concerned is that it is difficult to find that there was any mistake of any fact either by the Plaintiff or by the Defendant. The fact was that at the time when the goods in suit were delivered by the Defendant to the Plaintiff, the price for the same was the landed cost price. There was no mistake of any fact on that point at that time. The fact was plain, agreed and well-known to the parties. All that is happening is that rightly or wrongly the Plaintiff says that he is entitled to a refund because the Iron and Steel Controller who changed the rates changed it to a lower rate than the rate at which the Plaintiff company had paid. That is the essence of the Plaintiff''s claim for refund. I do not see how this claim for refund can be founded on the ground of mistake of any fact. I hold accordingly. It will not be necessary here to enter into any analysis of the leading case of Bell v. Lever Bros Ltd. (1932) A.C. 161 on the doctrine of mistake. In the present case, there was no mistake regarding the existence of the subject-matter of the contract. There was no mistake as to the title. There was no mistake also as to the substance of the thing contracted for. Nor was there any mistake as to any false and fundamental assumption going to the root of the contract. These are the four main types of operative mutual mistake as noticed by Anson in his Law of Contract in the 22nd edition by Prof. Guest in 1964.

Section 20 of the Contract Act here provides that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. Now, the kind of mistake that is pleaded here does not come within Section 20 of the Contract Act. If, there is a mistake of law then Section 21 of the Contract Act provides that a contract is not voidable because it was caused by any mistake, as to any law in force in India, although a mistake of a law in force in India has the same effect as a mistake of fact. It is also provided by Section 22 of the Contract Act that a contract is not voidable merely because it is caused by one of the parties to it being under a mistake as to a matter of fact. As I say, neither the Plaintiff nor the Defendant in taking delivery of the goods and paying the price for them at the landed cost was under any mistake of any fact at that time.

Section 72 of the Contract Act, however, provides that a person to whom money has been paid or anything delivered by mistake must repay or return it. Now, this section has been construed to mean that it covers both mistake of fact and mistake of law. See the decision of the Supreme Court in the Sales Tax Officer, Banaras and Others Vs. Kanhaiya Lal Mukundlal Saraf, . There it was held that where it was established that the payment even though it was of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same; and the party receiving the same would be bound to repay or return it.

But the question again is whether there was even a mistake of law in this case. On the facts I do not find that there was any mistake of law or any scope for it. I am of the opinion that under the Steel Control Order the Steel Controller can fix a rate of price for steel goods from time to time. He did fix a price and it was on that price that the goods were delivered and paid for. The Steel Controller had a right to change the rate under the law and when he does it, then a claim that might be arising because of the new rate cannot be said to be a claim on the ground of mistake of law. It may be a claim based on the ground of change in law. But change in law is not mistake of law. In Derrick v. Williams (1939) 2 All E.R. 559 it is laid down that a litigant whose claim has been satisfied by money paid into Court cannot afterwards contend that that money was accepted under a mistake in law on the ground that die law was not as then laid down by this Court of Appeal but as subsequently enunciated by the House of Lords. That principal appears to proceed on the foundation that the Court has to apply the law as it is at the time when the decision is given and the fact that the law is subsequently altered by a decision of a higher Court or by the Legislature gives no right to have an action retried Sir Wilfred Greene M.R. lays down the law in these terms (Supra) p. 555:

I can see no suggestion of a mistake of fact in this case. It was a mistake of law and consisted of the fact that the Plaintiff was under the belief that the law as laid down by this Court in Rose v. Ford (1937) A.C. 826, was correctly laid down. In that he was wrong and he is asking the Court to say that, having acted upon the basis of a mistaken view of the law, now that the law has been enunciated by the highest. Tribunal, he is entitled to make another attempt. That is a thing which, it seems to me, cannot be permitted on principle. It appears to be completely indefensible. No shadow of authority was cited to us which would justify the proposition that, where pursuant to die rules of Court, a claim has been satisfied by money paid into Court by the Defendant, the Plaintiff can afterwards come and say: ''I was wrongly advised as to the law when I did this, because the law was not as then laid down by the Court of Appeal, but as subsequently enunciated by the House of Lords''. It would be intolerable hardship on successful litigants if in circumstances such as these, their opponents were entitled to harass them with further litigation because their view of the law had turned out to be wrong and unless I were constrained by binding authority, I should be quite unable, on principle, to accept any such proposition.

See also the decision of the Privy Council and the observations of

Lord Reid in AIR 1949 297 (Privy Council) .

In the light of the modern law on this subject it is not a case either of mistake of fact or mistake of law but may come within the doctrine of restitution and unjust enrichment. I am of the view that there has been no mistake of fact either of the Plaintiff or the Defendant in this case. I am also of the view that there has been no mistake of law either of the Plaintiff or of the Defendant. I am further of the view that the Iron and Steel Controller has the legal right to fix and revise rates of prices under the Steel Control Order. In such circumstances, I am unable to hold that there has been any mistake of fact. But were this claim otherwise permissible even though it was not a mistake of fact or of law. I would bring it within the doctrine of restitution and unjust enrichment provided that the claim was otherwise maintainable.

Reference was made to some English decisions at the Bar. In Ellis v. Goulton (1893) 1 Q.B.D. 350 a sale of premises by auction was held and the purchaser paid a deposit to the vendor''s Solicitor as agent for the vendor but the sale fell through the default of the vendor and the purchaser then brought an action to recover the deposit from the Solicitor, but the Court held that the action could not be maintained because the payment of the deposit to the Solicitor was equivalent to payment to the vendor. See the observation of Lord Esher M.R. and Lord Bowen L.J. Supra, pp. 352, 353 Mr. Ghosh, Learned Counsel for the Defendant, also referred to the case of Steam Saw Mills Company v. Baring Bros. (1922) 1 Ch. Div. 244. He relied on the observations of Lord Sterndale M.R. where the Master of the Rolls observed:

No doubt, in certain circumstances, persons who have paid money under a mistake of fact are entitled to recover it from the person to whom they paid it, although he may have received it simply as agent for somebody else, without joining the principal. That is what the Appellants claim to do here. They say that as they did not know of the revolution, they did not know that the Kerensky Government, with whom the contract was subsisting had ceased to exist on November 7 and that from that time until December 13, there was no Government of Russia. Therefore, they say there was no person with whom they had any contract to pay this money at all and that was a fact of which they were ignorant and it was their ignorance of that fact which induced them to pay the money as they did. There seems to be ample authority for this that if a person under a mistake of fact pays money which he is liable to pay, he may recover it back; but it makes all the difference in the world whether the fact of which he was ignorant would have discharged him from the liability to pay. If the Kerensky Government had continued to exist it is not disputed that there would have been a contractual obligation to pay this money to Baring Bros, on behalf of the Russian Government, but it is said that in fact the Government had ceased to exist and therefore, any liability under which the Appellants might have been to pay the money, had gone and there was no liability on them to pay it at all. I think it is established that if a man pays money under a mistake of fact there being a liability to pay it, if the fact of which he was ignorant does not discharge him from that liability, he cannot recover it back.

That represents the crux of the legal question. Here the taking of the delivery by the Plaintiff arid the payment of the price was under no mistake as to the obligation to pay it at the time when the delivery was taken and to pay the amount at the rate fixed by the Controller, which was at the landed cost. There was ''liability to pay it'' within the meaning of the observations made by Lord Sterndale M.R. The other case cited was a decision of Romer J. in Twyford v. Manchester Corporation (1946) 1 Ch. 236, which I do not think it would be necessary to examine in detail having regard to the authorities already discussed.

Having regard to this view that I am taking, I must hold that there was no mistake of fact as alleged in para. 12 of the plaint and answer the first part of the issue No. (viii) in the negative.

The next part of the issue is did the Plaintiff discover such alleged mistake on April 3, 1963? It follows if there was no mistake there was no question of discovering any mistake. Now, April 3, 1963, which is said to be the date of discovery of the alleged mistake is the date of the letter marked Ex. C and dated April 3, 1963, from the Iron and Steel Controller to the Defendant giving the break up value of col. 1 rates for tin-mill black plates and which I have discussed already. According to the Plaintiff, this is the letter which; for the first time, informs them that the col. 1 rate operates. Now, this contention is rather difficult to accept. The letter itself refers back to the letter of December 19, 1962. Therefore, the letter of December 19, 1962, should enable one to discover that the amended rate of June 4, 1962, has been cancelled and the old rate of col. 1 is reimposed as under the original allotment letter of February 8, 1962. Mr. M.N. Banerji, Learned Counsel for the Plaintiff, says that it is the letter of April 3, 1963, which for the first time informed the Plaintiff of the new rates although the letter was addressed to the Defendant company. The letter of December 19, 1962, did not actually give the specific rates applicable to the goods in suit, the tin-mill black plates although it had said that col. 1 rates would be applicable. Therefore, he submits that the discovery did not take place on December 19, 1962, but on April 3, 1963.

But then Ex. F remains which is the circular dated October 3, 1962, reverting to the col. 1 rates and declaring that the price of the tin-mill black plates would be the same as of 9B cold rolled sheets mentioned there and expressly refers to the notification published in the Gazette of India dated November 4, 1961, as amended from time to time. That means that the Plaintiff and the Defendant are both put on enquiry as to this rate published in the Gazette of India dated-November 4, 1961 and from time to time. It is, therefore, difficult to accept the Plaintiff''s contention that the first discovery was made on April 3, 1963, about these new rates. On the document it appears that the discovery should have been made or was possible on October 3, 1962. I answer the second part of the issue No. (viii) accordingly subject to my observation that there was no mistake at all in the present case.

Issue No. (ix):

This issue raises the question whether the Plaintiff is liable to pay only Rs. 6,62385-38 P, in respect of the said goods as alleged in paras. 6 and 7 of the plaint. That figure represents, according to the Plaintiff, the price payable on the basis of rates as fixed by the Steel Controller finally. This issue is connected with issues Nos. (iii) and (iv). Haying regard to my findings on issues Nos. (iii) and (iv), the answer to this issue No. (ix) must follow and must be in the negative.

The oral evidence on this point has already been discussed while deciding issues Nos. (iii) and (iv) and other foregoing issues. As already indicated, Mr. Cherian, a Director of the Defendant company who gave evidence for the Defendant in answer to Q. 215 has taken two defences. One is that the money realised from the Plaintiff company in respect of the price has already been paid over to the Steel Controller and therefore, nothing is payable by the Defendant at all. The other defence is that having regard to the final revision of the date by the Steel Controller on or about August 16/17, 1966, nothing is payable either by the Defendant or even by the Steel Controller to the Plaintiff.

There is one aspect of this issue to which I propose to make a reference here. The question is whether the Defendant company has paid over the price it received from the Plaintiff company to the Iron and Steel Controller. If the Steel Controller has the right to fix the price on August 16/17, 1966, as I have found he has, then this aspect of whether the Defendant has paid over the money received from the Plaintiff to the Iron and Steel Controller is not material for, in that event the Plaintiff company is not entitled to any refund either from the Defendant company or from the Iron and Steel Controller.

Now, on this question of fact whether the Defendant company has paid over the price it received from the Plaintiff company to the Iron and Steel Controller, Mr. Banerji for the Plaintiff has submitted that the evidence shows that the money is still in the hands of the Defendant company. He relies in particular in this branch of the case on the evidence of Mr. Adhikari the Deputy Price and Accounts Officer of the Steel Controller and particularly on his answers to Qs. 78-79 and Qs. 89-91. Mr. Adhikari''s evidence in answer to these questions is that the accounts between the Defendant company and the Iron and Steel Controller have been closed and a sum of Rs. 1,94,763-07 P. is shown to be outstanding still from the Defendant company to the Iron and Steel Controller. Mr. Adhikari''s evidence is that the bills had been made and accounts shown on the basis of col. 1 rates and in answer to Q. 89 whether the difference between col. 1 rate and the landed cost rate had been handed over to the Iron and Steel Controller by the Defendant, he said that the Iron and Steel Controller had not issued any supplementary bill pending the decision of the Court. Mr. Adhikari produced extracts from folio Nos. 52 to 54 of the Iron and Steel Controller''s bill register in respect of the Defendant company which is marked Ex. E in this suit. Mr. Banerji argues that in Ex. E the rates shown per ton are the rates on the basis of col. 1 rates. Therefore, he says that the money that was paid over to the Iron and Steel Controller by the Defendant company was the money on the basis of col. 1 rates and the excess that has now occurred by reason of the landed cost rate must be with the Defendant company. There is considerable force in this argument of Mr. Banerji. But Ex. E shows in its remarks column that supplementary bills have been issued in respect of quite a number of these bills shown in that account marked Ex. E. Exhibit. E shows a total amount of Rs. 1,94,763-07 P. as net outstanding.

But the difficulty on this point is that this outstanding shown in the account of the Iron and Steel Controller with the Defendant company is not in respect of the Plaintiff company''s dealings and transactions. In fact, this net amount of Rs. 1,94,763-07 P. represents, according to the Iron and Steel Controller, as the net outstanding from the Defendant company to the Controller in respect of as many as fifty consignees and goods delivered to them. Mr. Adhikari also admits that it is not possible to allocate what amount of this is for whom and which allottee and that it is not possible to separate any amount as outstanding so far as the Plaintiff company is concerned. It must be remembered that the Defendant company was dealing with the Steel Controller not only in respect of the Plaintiff company but in respect of many others. This evidence is clear from a series of answers given to Court by Mr. Adhikari to Qs. 80-85. Therefore, neither from the, oral evidence of Mr. Adhikari nor from Ex. E it is established that though Rs. 1,94,763 07 P. is said to be outstanding on the general account that the Defendant company has with the Steel Controller, any particular amount of this sum is with regard to the Plaintiff company and if so, what is that amount. Mr. Banerji in this connection has also referred to a letter dated June 10, 1964, marked Ex. D written by the Iron and Steel Controller to the Defendant company to suggest that this sum of Rs. 1,94,475 was in excess of the col. 1 price from the enamel companies. Even then there are more enamel companies in the list than the Plaintiff company. Mr. Adhikari explains that this letter Ex. D was in reply to some representations made by the enamel companies that an excess amount had been recovered and that was why the handling agents were requested to return the excess amount recovered from the consignees. Mr. Adhikari in answer to Q. 94 specifically said that the account Ex. E expressly shows that this sum is not only outstanding from the enamel companies but also from other companies. Naturally, Ex. E has to be accepted as the explanation and as supporting the evidence of Mr. Adhikari in answer to Q. 94 to read the letter of June 10, 1964, marked Ex. D.

But apart from this evidence there is a strong circumstantial factor relevant on this point and that factor, I am afraid goes against the submission of Mr. Banerji on this point. There are many letters written on this point long before the suit was failed. They are material on this point of fact. I shall trace them chronologically to show the course of conduct between the parties for one whole year on this point.

The first letter is dated May 1, 1963, written by the Defendant company to the Plaintiff in answer to the Plaintiff company''s letter dated April 25, 1963. This letter of May 1, 1963, clearly makes out the case that the amount realised by the Defendant from the Plaintiff company in respect of the supply of tin-mill black plates had already been deposited with the Iron and Steel Controller. In fact, this letter requests the Plaintiff company to contact the Controller for the refund of the excess. There is no reply to this letter by the Plaintiff company. But there is a letter from the Plaintiff company to the Defendant company dated June 5/6, 1963, saying that no reply had been received to the Plaintiff''s letter of April 24, 1963, which was obviously incorrect having regard to the reply dated May 1, 1963- The Plaintiff company in its letter dated June 5/6, 1963, claims the excess payments alleged to have been made by the Plaintiff and asking for refund from the Defendant company. On June 7, 1963, the Defendant company immediately replied that the Plaintiff''s letter of April 25, 1963, had already been answered by the Defendant''s letter of May 1, 1963 and enclosing again a copy of it. The Defendant company again by its letter dated October 1/5, 1963, to the Price and Accounts Officer of the Steel Controller made it quite clear that the Plaintiff company was asking for refund from the Defendants company but the excess had already been deposited with the Steel Controller and in that letter expressly requested the Steel Controller to refund the sum of money said to have been paid in excess by the Plaintiff company. This is followed by the letter of October 22, 1963, from the Iron and Steel Controller to the Defendant. The significant part of this letter from the Steel Controller is that it is quite silent on the fact that the excess money had been deposited by the Defendant with the Steel Controller but does on to make a point that as the Defendant had recovered from the consignee the price the Defendant was requested to settle the accounts with the Plaintiff. A copy of this letter was sent to the Plaintiff company. Therefore, on November 19/20, 1963, the Plaintiff company wrote to the Defendant on the basis of the Steel Controller''s letter of October 22, 1963, asking for refund of that sum of Rs. 84,567-07 P. The Defendant company immediately on November 22, 1963, wrote a letter to the Plaintiff company stating that the Defendant was unable to appreciate the contents of the Steel Controller''s letter regarding the refund because the excess money had already been deposited with the Iron and Steel Controller even before the intimation of any reduced prices. The Defendant''s letter of November 22, 1963, makes the point of fact quite clear that in those circumstances the Defendant had no way except to request the Plaintiff to apply to the Steel Controller for necessary refund. A copy of this letter of the Defendant to the Plaintiff was sent by the Defendant to the Steel Controller, which again shows that the Defendant''s conduct was quite open and frank and it maintained the position that it had actually deposited the excess with the Steel Controller and it was the Steel Controller who should refund the money having received it and not the Defendant company who have parted with the money in favour of the Steel Controller. Then followed a peculiar letter dated January 31, 1964, from the Steel Controller to the Defendant company. Here again in this letter, whose peculiarity I shall presently notice, there is no denial of the fact that the excess had been deposited with the Steel Controller by the Defendant. What the Steel Controller says in the letter of January 31, 1964, is that the amount shown as credit item in the statement of accounts of the Defendant company with the Steel Controller was an irregular procedure because the Steel Controller had no direct account with the party and therefore, the Defendant company was requested to withdraw this item from the statement of accounts and make payment direct to the party. Naturally and almost immediately the Defendant company wrote to the Iron and Steel Controller in reply making it clear beyond any doubt that the sale proceeds and the amounts received thereunder were sent to the office of the Steel Controller by the Defendant''s bankers quoting the reference of the bank guarantee. There was, therefore, no question of there being only an item in the statement of accounts as alleged by the Steel Controller and making it clear that it is the Steel Controller who has now the responsibility to refund direct to the Plaintiff company and others the excess. A copy of this letter was also sent to the Plaintiff company to keep it informed, which again shows the bona fides of the Defendant company on this question of fact about the payment. In other words, it was not that the Defendant company was saying only to the Plaintiff company that the money had been deposited with the Steel Controller but the Steel Controller was kept informed all the time that the money had been deposited by the Defendant with the Controller. It will be necessary and I think relevant to quote some portions of the letter of February 4, 1964, which the Defendant wrote to the Steel Controller with copy to the Plaintiff. The relevant portions are:

As per terms of your contract bank guarantees were issued by our bankers covering the full value due to you of the above consignment. As and when the sale proceeds were received the amounts were sent to your office by our bankers quoting the reference of their bank guarantee. So that, what we meant by our letter of the 22nd November, 1963, was that the amount collected from Messrs Bengal Enamel Works Ltd., based on the original selling price fixed by your office were remitted to your office by our bankers before receipt of advice of the amended prices. We, therefore, did not hold the amounts that became refundable by virtue of this amendment and we are, therefore, unable to make any refund.

This is as clear a statement as possible on the issue of fact whether the excess had been paid over by the Defendant company to the Steel Controller. But the letter does not rest there. The letter of February 4, 1964, proceeds to say further as follows:

You will appreciate that we were asked to sell these items at a particular price which we did and the proceeds were sent to you. If subsequently you have chosen to reduce the price, naturally we have no liability as by then the transactions were completed by us according to your contractual terms. We trust you will appreciate our above stand and make refund direct to Messrs Bengal Enamel Works Ltd. and others.

A copy of this letter as I have already said was sent to the Plaintiff company.

There was no reply and no rejoinder and no dispute from the office of the Steel Controller to this letter to say that this excess amount had not been paid by the Defendant company to the Steel Controller. That I consider settles the issue of fact, namely whether the excess had been paid over by the Defendant to the Steel Controller.

I shall complete the correspondence on this point. Thereafter, on May 19, 1964, the Defendant again writes to the Iron and Steel Controller giving complete accounts and stating

from the above particulars you will observe that we have made excess payment of Rs. 15,946-36 P. to you and no amount is lying with us. We would, therefore, request you to please arrange payment to Bengal Enamel Works and Messrs Sur Enamel and Stamping Works directly.

I cannot imagine what could be a clearer statement than this when the Defendant says to the Controller that far from any amount being outstanding from them it is the Defendant who had made excess payment of Rs. 15,946-36 P. to the Steel Controller and making a request that the excess should be paid over by the Steel Controller to the Plaintiff. A copy again of this letter was sent to the Plaintiff by the Defendant. Significantly enough, there, was no denial or objection by the Steel Controller to this assertion of fact. Finally, there are the letter of demand by the Plaintiff company, dated September 2/3, 1964 and the answer of the Defendant dated September 22, 1964. The demand letter of the Plaintiff of September 2, 1964, asks for the refund of the excess amounting to Rs. 84,567-07 P. The reply of the Defendant dated September 22, 1964, clearly says and repeats again that the amount realised from the Plaintiff by the Defendant had already been deposited with the Iron and Steel Controller and asks the Plaintiff to contact the Controller for the refund of the excess amount. As I have already indicated, the suit was filed on December 16, 1965.

Now, what is the picture represented by the course of conduct stated in all this correspondence? For one whole year and over, from May 1, 1963 to September 22, 1964, the consistent case of the Defendant company has been that it paid to the Controller the excess. There was no denial and no objection by the Steel Controller that it had not received the excess from the Defendant. Copies of all the relevant correspondence between the Plaintiff and the Defendant as well as with the Steel Controller have been exchanged between the Plaintiff, the Defendant and the Controller. There was no attempt to hide any fact on the part of the Defendant company. The Defendant company acted fairly and overboard on this issue that they did not retain the excess any more but had handed it over to the Steel Controller as they were bound to do under the handling agent''s contract. It is difficult to imagine that if the Defendant company had not actually paid over the excess to the Steel Controller they could have gone on writing for more than one year saying that it had done so and there was no denial from the Steel Controller himself that they had not received the excess. This I consider to be a circumstance of telling importance and I am satisfied on this evidence that the Defendant company''s version that it had paid over the excess to the Steel Controller should be accepted and I do so.

Finally, Mr. Banerji for the Plaintiff, as I have already indicated elsewhere in this judgment, again raised the question that the Iron and Steel Controller was wrong in applying the rate fixed by the circular of October 3, 1962, only to the deliveries to be made subsequently to October 3, 1962 and saying that it should not be applied retrospectively to deliveries made prior to October 3, 1962. I have already discussed this point and all that I need say and repeat here is that under Clause 15 the power of the Controller, is to fix the price from time to time at which any iron or steel may be, sold. The expression may be sold naturally applies to sales after the fixation of prices by the Controller and should be read prospectively and not retrospectively. In that view of the matter, I am of opinion, that the Controller''s interpretation that October 3, 1962, notification or circular, Ex. F, did not and could not affect deliveries completed before October 3, 1962 and which deliveries were made on the basis of landed cost rate is correct. For these reasons, I answer issue No. (ix) in the negative.

Next issue is issue No. (x). This issue is an issue on limitation.

The Defendant contends that the Plaintiff''s claim, if any, is barred by limitation. Mr. Ghosh in support of the defence of limitation for the. Defendant company has made his submission on different articles of the Limitation Act. The residuary article is Article 113 of the Limitation Act of 1963 prescribing a period of limitation of three years from the date when the right to sue accrues. Mr. Ghosh suggests and argues that the right to sue, even if there be any of the Plaintiff company, according to the plaint then should accrue because of the change in the rate. That, he submits, was made on October 3, 1962. The suit was filed more than three years after that date. He emphasizes the word that the three years period is to be calculated from the time when the right to sue accrues and does not depend on the discovery of the right. Then he submits that the appropriate Article to govern the suit is Article 24. That Article says that for claims for money payable by the Defendant to the Plaintiff for money received by the Defendant for Plaintiffs use, the period is three years from when the money is received. Mr. Ghosh submits that the money in this case was received on July 19, 1962 and on August 27, 1962 and therefore, more than three years have elapsed from those dates before the suit was filed. Hence, he contends that even under Article 24 the claim is barred by limitation.

Mr. Ghosh''s next submission related to Article 47 of the Limitation Act which deals with the claims for money paid upon an existing consideration which afterwards fails and the limitation in such a case being three years from the date of the failure of the consideration. According to Mr. Ghosh, this failure of consideration took place on October 3, 1962, by the document marked Ex. F, showing the revised rate and the suit has been filed on December 16, 1955, which was beyond three years from that date and therefore barred under Article 47.

The Plaintiff''s difficulty on the point is the actual formulation of its claim and the plea of mistake of fact. Mr. Banerji for the Plaintiff company argued with considerable force that not until April 4, 1962, there could be any cause of action for the Plaintiff first because of the letter of December 19, 1962, showing that the rate was to be in accordance with the original terms of the original allotment letter, without its amendment of June 4, 1962 and secondly, he submits that the actual rates were not known at all to the Plaintiff company until the break up value was given in the letter of April 3, 1963, Ex. C. It is this letter of April 3, 1963, which is said to be the starting point of limitation. But then this again raises a question of fact. I have already indicated that the intimation of reverting back to col. 1 rate is first to be found in the document or circular, marked Ex. F, dated October 3, 1962. That indicates and gives notice to parties concerned that the gazette notifications will indicate what the rates will be. Therefore, the two dates which Mr. Banerji suggested viz. (i) December 19, 1962 and (ii) April 3, 1963, may not be decisive of the dates from which the Plaintiffs knowledge can be said to start--at least in law and from the point of view of constructive notice of the rates indicated by the document marked Ex. F.

On the dates, the further significant points are that the issue for the claim for refund was definitely raised by the Defendant''s Better dated May 1, 1963 and the Plaintiff''s letter dated April 25, 1963. For one whole year, as I have already indicated, the correspondence continued. The letter of demand from the Plaintiff was dated September 2, 1964, to which again the reply from the Defendant was given on September 22, 1964. But even then this suit was not filed by the Plaintiff until more than one year after September 22, 1964.

The Plaintiff''s difficulty on the point of limitation is that whether it is Article 24 or Article 47 or Article 113 of the Limitation Act which applies in this case, the Plaintiff''s claim is barred by limitation unless Mr. Banerji''s contention is accepted that the starting point of limitation under any of these Articles would only run from the date of discovery made by the Plaintiff of these rates fixed by the Controller. I do not think that the third column of any one of these Articles supports Mr. Banerji''s submission that the time of three years would start running only from the date when the Plaintiff discovers his right.

Another point of Mr. Banerji''s submission on the point of limitation is based on the pleading in para. 15 of the plaint regarding admission of liability by the Defendant. It is pleaded in para. 15 of the plaint that letters dated May 1, 1963, November 22, 1963. February 4, 1964, May 19, 1964 and September 22, 1964 are unconditional admission and acknowledgment of the Defendant''s liability to pay the excess. I have read these letters carefully. They do not, in my opinion, amount to an unconditional admission or acknowledgment or any unequivocal acknowledgment of the Defendant''s liability to pay the excess. All that these letters say is that the excess paid is recoverable from he. Iron and Steel Controller and not from the Defendant. That is not an admission of the liability to pay by the Defendant. The Defendant does not in my view admit in any of these letters that it has any liability to pay.

In fact, these letters indicate that the Defendant was contending that it was not liable to pay at all the excess but the excess, if any, was payable by the Steel Controller. That, in my view, is not an admission or acknowledgment of liability within the meaning of Section 18 of the Limitation Act.

Then remains the letter of July 24, 1962, to which I have already made reference in this judgment. This, of course, is not a letter of acknowledgment of liability or admission or liability after the liability had arisen. Mr. Banerji contends that this really is a letter making a promise to pay. According to his argument on this letter, the Defendant by this letter promised to refund any excess that may become available if the prices are finally fixed by the Steel Controller at a lower rate. But then this letter is not pleaded in the plaint as a promise to pay independently and apart from the other contracts and transactions involved in the suit. It is not also pleaded as a letter containing any admission or acknowledgment of liability in para. 15 of the plaint. The reason is obvious because, even if this letter of July 24, 1962, were treated as an admission of liability by the Defendant, it would not have saved limitation because the suit was filed on December 16, 1965, more than three years thereafter. Besides, this letter of July 24, 1962, is not an unconditional promise to pay. It is hedged round by two significant limitations. In the first place it assumes that the price fixed by the Steel Controller was provisional which, in fact, it was not and has not been proved to be such at the time when the price was paid and delivery taken. The second limitation is that it is only in such a case that the Defendant agreed to refund any excess provided that the prices fixed by the Steel Controller finally were lower than the previous prices. On the facts here that situation or event has not occurred. Therefore, I am of the opinion that this letter of July 24, 1962, cannot give or extend any cause of action to the Plaintiff company in the facts of this case.

For these reasons I am constrained to hold that the Plaintiffs claim is barred by limitation on the facts and circumstances of this case and I answer the issue in the affirmative.

Issue No. (xi):

This is an issue raising the question whether the suit is bad for non-joinder of the Iron and Steel Controller. Mr. Ghose for the Defendant company contends that this is a case where no relief can be granted at all in the absence of the Iron and Steel Controller. According to him, the Government of India represented by the Iron and Steel Controller, in the facts of this case, is not only a-necessary party but also an essential party. It is not a case where the Steel Controller is only a proper party. This argument on the facts of this case require careful consideration.

But before doing so, I may refer to an application made by the Plaintiff company on November 26, 1968, while all evidence in the case had concluded and when the Defendant had concluded its arguments and at the stage when the Plaintiff''s counsel was about to conclude his arguments. This application was made at that stage to join Union of India as a party to this suit and to amend the plaint accordingly.

It will be appropriate to dispose of this application while deciding this issue of non-joinder. This application for amendment is opposed both by the Defendant company as well as by the Iron and Steel Controller proposed to be joined as a Defendant. No affidavit-in-opposition has been filed by the Defendant company and the Steel Controller, but it has been recorded that the allegations in the petition are not admitted. There are various objections raised to this application for amendment. The first objection is that no notice u/s 80 of the CPC has been given to the Union of India intended to be joined as a party to this suit. Therefore, it is said that it is fatal to the application and the application must be dismissed in limine on that ground. The second objection is that there will be serious prejudice if the application is allowed at this late stage, because the whole case has been disclosed, the entire evidence has been recorded and the arguments had almost concluded. It has been said on this ground of objection that to allow amendment would mean really to call for a de novo trial and all the evidence has got to be given over again so that the party intended to be joined has the right to cross-examine. Even then it is said that the entire case on evidence having been disclosed the prejudice will be irreparable. The fourth objection is that the inordinate delay should in the facts of this case be a ground for refusing this application and specially in view of the fact that the point of non-joinder was taken in the written statement filed as early as April 21, 1966 and also specially in view of the fact that there is not a word of explanation given in the petition why there was such a delay. Lastly, it has been objected on the ground that it will lead to waste of proceedings and costs unnecessarily incurred. Each one of these objections is serious. I shall deal with them as follows:

Taking up the first objection about there being no notice u/s 80 of the Code of Civil Procedure, Mr. Banerji''s submission is that no notice is necessary because the Union of India represented by the Steel Controller is being joined as a pro forma Defendant and in the proposed amendment it has been said that no relief is claimed against the proposed Defendant to be added. He has relied on some of the decisions which I shall notice at this stage. The first decision is of Mrs. Maniluxmi Patel and Another Vs. Hindusthan Co-operative Insurance Society, Ltd. and Another, . At p. 629 of AIR 1962 Calcutta, the learned Judge observed in that case:

In the instant case no wrongful act of the Union of India is complained of in the plaint. No cause of action against the Defendant 2 has been alleged. No relief has also been claimed against the Defendant 2. In these circumstances, it seems to me that there is no scope for service of notice u/s 80 of the Code of Civil Procedure.

It was also observed by the learned Judge at p 630 of that report:

Now, in view of what I have stated above, specially the modifications of Sections 3 and 4 of Act 9 of 1956. I do not see how the Union of India was interested in the subject-matter which was instituted on April 20, 1956. The Union of India, to my mind, was not a necessary party and as such notice u/s 80 of the Code for the purpose of suing the Union was not required.

These observations, in my opinion, are quite inapplicable in the facts of the present case. There the learned Judge found that the Union of India was not interested in the subject-matter of the suit at all. I cannot say the same thing about the Union of India in the present case. It was also found in that case that there was no wrongful act of the Union of India complained of in the plaint. The next feature of that case was that there was no cause of action against the Union of India. The other feature was that no relief was claimed against the Union. On those, facts and within the limitations imposed by those facts, the learned Judge appears to have expressed the view that no notice u/s 80 of the CPC was necessary in that case. Be it also noted here that there the suit was filed with notice u/s 80 of the Code and the question for determination that came up before the learned Judge was whether the notice u/s 80 of the Code and period covered by it would extend limitation. Here, the Union of India was, in my view, a necessary party. The Union of India in this case is vitally interested in the subject-matter of the suit. The interest of the Union of India in this suit lies in the fact that--(a) One of the major controversies here is the nature of the legal and jural relationship between the Plaintiff, the Defendant and the Government of India representing the Iron and Steel Controller, raising the question about the nature of contract, viz., whether the arrangement between the Plaintiff and the Defendant was that between a principal and a principal or whether it was one of the relationship between the principal dealing with an agent and the disclosed principal. That is a question which vitally affects the interests of the Union of India. The correspondence, as already discussed, shows that the letters were exchanged between the Plaintiff, Defendant and the Controller and the Plaintiff company even at one stage approached the Controller for refund and certainly he was asked repeatedly to approach the Controller for refund, (b) Then again one of the defences in the suit from the beginning was that the excess for which the claim for refund is made by the Plaintiff has been paid over by the Defendant acting as agent of the Government of India and the excess has been handed over to the Iron and Steel Controller. The consideration and controversy also made the Union of India an essential party to this suit from the very beginning. No doubt in para. 18A of the proposed amendment of the plaint the Plaintiff says, it claims no relief against the Union of India, but this mere statement will not help because no relief is possible to the Plaintiff company without affecting the rights and liabilities of the Union of India represented by the Iron and Steel Controller in the facts of this case, (c) Finally, the interest of the Union of India is plain even from Mr. Baherji''s submission that the Iron and Steel Controller has no right (i) to fix any rates Or price on the 16/11-8-6 and (ii) that he had no right to make the order of October 3, 1962, Ex. F., prospectively and not retrospectively. Both these questions and controversies vitally affect the interests, rights and liabilities of the Union of India.

On those grounds I should distinguish the case of Mrs. Maniluxmi Patel and Anr. v. Hindusthan Co-operative Insurance Society Ltd. (Supra) from the facts of this case.

The case reported in Chandulal Vadilal Vs. Government of The Province of Bombay, which was cited at the Bar, also has no application because there notice u/s 80 had been given and the question was whether the notice complied strictly with the requirements of Section 80.

Reliance was also placed on the Privy Council decision in (1934) 66 MLJ 506 (Privy Council) . I do not see how that helps the Plaintiff''s submission on this point because there the Privy Council pointed out, repeating the principle previously established, that notice u/s 80 was necessary even in suits on contract and there could be no distinction on the ground between different classes of suits. The Privy Council in that case pointed out that in a suit against the public officer it is only where the Plaintiff complains of some acts purporting to have been done by him in his official capacity that a notice is enjoined. But in that case a mortgagee sued upon a mortgage executed by a former Manager under the Bengal Tenancy Act and the mortgage imposed no personal liability upon the Manager but merely provided that if payment was not made, the mortgagee would be entitled to realise his clues by sale through the Court and the mortgagee made no claim against the Manager personally. It was there said that such a suit was not within the ambit of Section 80 and no notice of suit was required for the omission by the Manager to pay off the mortgage was not a breach as would entitle him to a notice. Here the facts are entirely different as I have pointed out. It must also be noted here that in the Privy Council decision it was found as a fact that the mortgage was not executed by the particular public officer but by a former Manager and that the Appellant did not complain in any way about the execution of the mortgage at all.

The other case relied on was Bhagchand Dagadusa and Ors. v. Secretary of State for India in Council and Ors. 54 I.A. 338. The principle laid down by the Privy Council in that case was that notice u/s 80 of the CPC applied to all forms of suit and whatever the reliefs sought including the suit for an injunction. That is the ratio of that decision. It was held there that without such a notice u/s 80 of the Cock of Civil Procedure a suit could not be maintained either as to the declaration or as to the injunction. I need only add here that although the Plaintiff in his proposed amendment says that it does not claim any relief against the Union of India, no relief in the suit can possibly be granted to the Plaintiff without declaring the effect of the acts of the Iron and Steel Controller and that means there is a concealed claim for declaration in the Plaintiff''s case against the Union of India.

The next case on which reliance was placed was the decision in A.F. Ferguson and Co. and Others Vs. Lalit Mohan Ghosh, . What happened there was that by a notification under the Defence of India Rules the Central Government handed over upon the outbreak of the war the management of the enemy insurance company, Allianz und Stuttgarter Life Insurance, to a firm of chartered accountants which, was asked to manage the business of the enemy company subject to the superintendence, direction and control of the Central Government and the firm of the chartered accountants in their management of the enemy firm was to be accountable to the Central Government. In a suit by the insured against the firm of the chartered accountants as representing the enemy firm, the Governor-General in Council, against whom no relief or claim was made and who had no interest in the subject-matter of the suit, was held to be not a necessary party. Therefore, in that case the Government of India being not a necessary party no notice u/s 80 of the Code of Civil Procedure, was required to be sent to him and no notice was also required to be sent to the firm of the chartered accountants because they could not be regarded as a public officer within the meaning of the Code of Civil Procedure. It was also found there that the cause of action for the suit had arisen due to the act of the enemy firm before it was taken over by the new firm arid, therefore, it could not be said that the claim in that suit was in respect of any act done by the firm of chartered accountants so as to require any notice u/s 80 of the Code of Civil Procedure. I have already indicated that the facts there are entirely different from the present case before me.

It will not be inappropriate here at this point to refer to the provisions of the CPC contained in 0.1, Rule 3 and Order 1, Rule 9. Order 1, Rule 3 provides that all persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Order 1, Rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It is well established that so far as non-joinder of parties is concerned, a distinction has been drawn between non-joinder of a person who ought to have been joined as a party and the nonjoinder of a person whose joinder is only a matter of convenience or expediency. This is the origin of the distinction between necessary party and proper party. The expression pro forma Defendant has been the source of a good deal of confusion. The expression pro forma Defendant has not been used in the Code of Civil Procedure. It is supposed to mean that a Defendant is in the suit only by way of form and no relief or cause of action against him is claimed. Technically speaking, it is difficult to imagine why a person should be at all a Defendant against whom there is no cause of action or against whom there is no relief. It is said that a person can be made a party-Defendant because his presence may help and may be found necessary for the proper adjudication of the real controversies in the suit. The expression used in Order 1, Rule 10 of the CPC and specially in Sub-rule (2) thereof is

whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit.

In that case the Court may add such a party. But even then the presence of such a Defendant must be considered by the Court to be necessary to effectually and completely adjudicate and settle all the questions involved in the suit. That means there is a purpose. That means there is a legal need. That means that such a Defendant even could not be called a pro forma Defendant in the sense that he is there only as a decoration in the cause title of the suit or the plaint. Pro forma Defendants can be affected by questions of res judicata u/s 11 of the Code of Civil Procedure. In Radha Kishun v. Khurshed Hossein 47 I.A. 11 it was observed that the decree in a former suit was not res judicata u/s 11 of the CPC against the first mortgagee whose mortgage was not challenged in that suit on the ground of validity. In Satyananda Brahmachari and Others Vs. Phani Lal Mookerjee and Others, a learned Judge of this Court came to the conclusion that a decision in a former suit could operate as res judicata against a person who was a pro forma Defendant in that suit and against whom no relief was claimed therein. It was observed there that although the idea of a pro forma Defendant was not unknown in law, the mere fact that a person was described as a pro forma Defendant or that no relief was claimed against him in the plaint would not necessarily exempt him from the operation of the rule of res judicata. The decisions of the Privy Council in Munni Bibi v. Triloki Nath 58 I.A. 158, Maung Sein Done v. Ma Pan Nyun 59 I.A. 247 and Kedar Nath Goenka v. Ram Narain Lal 62 I.A. 224 were cited in support of that view. The Full Bench decision of the Punjab High Court in Gita Ram Kalsi Vs. S. Prithvi Singh and Others, observed that a pro forma Defendant is joined as a party in a suit, because his presence is necessary in order to enable the Court effectually and completely to adjudicate upon the matters in controversy between the parties and he does not enjoy any special rights or privileges which; are not available to other and he is as bound by the decision of the Court as the other parties to the litigation.

Having regard to the nature of the controversies and issues in, this suit I have no hesitation in holding that in this case the Union of India represented by the Steel Controller was a necessary and essential party from the beginning and it could not be regarded as a mere party which could or could not be joined. I am also of opinion that having regard to the issues and the controversies in this suit the Union of India represented by the Steel Controller is vitally interested in its rights and liabilities and answerable for the acts that it did in fixing the prices and making the handling agent''s contract so as to require notice u/s 80 of the CPC to be given in this case. I, therefore, consider absence of notice u/s 80 of the CPC to the Union of India in this case is fatal to the application for amendment.

Finally, Mr. Banerji for the Plaintiff company invoked Section 15 of the Essential Commodities Act which affords protection to action taken under the Act and to urge that no suit would lie against the Union of India or the Steel Controller because of that section. Now, that section only provides that no suit or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made u/s 3 nor will a suit lie against the Government for any damage caused by anything which is in good faith done or intended to be done in pursuance of any order made u/s 3 of that Act. I do not see how this Section 15 of the Essential Commodities Act affects the question of notice u/s 80 of the Code of Civil Procedure. Assuming that Section 15 of the Essential Commodities Act is a bar to a suit against the Government that does not mean that if in spite of the bar a suit is filed against the Government, notice u/s 80 of the CPC should not be given. But if this is the plea and argument of Mr. Banerji for the Plaintiff, then surely Section 15 is a bar to his present application to join the Government as a party in the present suit. I do not think that Section 15 is a bar in the facts and circumstances of such a case where the real controversy is (i) how far the Controller had any power under the Steel Control Order to fix the rates in the way that he has done and (ii) how far the Controller can claim the protection u/s 15 to retain money which is said to have been paid in excess to the Controller. My own view is that on those two grounds Section 15 is no protection against the Government. But as I say, if Mr. Banerji is right that Section 15 is a bar, then he defeats his, this present application, by that argument alone to include the Government in this suit.

The objection on the ground of prejudice is also, in my view, formidable in this case. The entire case has been disclosed. All witnesses on the side of the Plaintiff and the Defendant have been examined and cross-examined. AH documents between the parties have been discovered and inspected and exhibited. To amend the plaint by introducing the Union of India at this stage will be to throw away all these proceedings. The evidence so far given cannot be used as evidence against the Union of India intended to be joined, because if the Union is joined it has a right to cross-examine the witnesses of both the Plaintiff and the Defendant. That means all the witnesses have got to be examined, cross-examined and reexamined de novo. Even that procedure cannot cure the prejudice because the parties would know what has been the evidence so far. So that the element of surprise in cross-examination for eliciting the truth is completely lost. But that is not the only prejudice. Addition of the Union as a party Defendant at this stage would mean fresh discovery of documents and inspection. As I see the picture, at the present stage the addition of the Union of India will not only throw away all the proceeding so far taken which was about to lead to the conclusion of the trial and the disposal of the suit but also will create irreparable prejudice of a de novo trial. Mr. Banerji for the Plaintiff company realised the difficulty and therefore, offered to pay all costs so far incurred but then payment of costs would not cure the prejudice that I have mentioned.

I am aware that the Court has power to add a party at any stage and that any stage may literally mean any stage but the Court''s power to add a party must not be used in a manner which prejudices the interest of parties already in suit irreparably and irretrievably. The decision of the Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, makes the following significant observations:

The difficulty in the way of the Appellant is real. He refrained from joining the deity, if not as a necessary, at least as a proper party to the suit. If he had joined the deity and the deity was represented by a disinterested guardian, necessary pleas against his contention could have been raised by the guardian and it is likely that some evidence would also have been given. The Appellant seeks to cover up his default by saying that the suit was one under Order 1 Rule 8 of the CPC and that the Hindu Public was joined and the deity was adequately represented. In a suit of this character it is incumbent to have necessary parties, so that the declaration may be effective and binding. It is obvious enough that a declaration given against the interest of the deity will not bind the deity even though the Hindu Community as such may be bound. The Appellant would have avoided circuitry of action if he had acceded to the very proper, request of the Respondents to bring on record the deity as a party. He stoutly opposed such a move, but at a very late stage in this Court he has made an application that the deity be joined. It is too late now to follow the course adopted by the Privy Council in Promotho v. Pradhyumna 52 I.A. 245 and Kanhaiyalal v. Hamid Ali 60 I.A. 263, in view of the attitude adopted by the Appellant himself and the warning which the Trial Judge had issued to him in his order.

These observations are very appropriate to the facts of the present, case. Here also the written statement expressly took the objection of non-joinder of the Controller. At the beginning of the trial issues were settled and the issue was expressly taken about nonjoinder. Notwithstanding that the Plaintiff did not choose to make an application to join the Controller. The Plaintiff allowed the trial to proceed with examination of witnesses and come to a close. In those circumstances, although I have no doubt that the Court has power to add a party at any stage of the proceedings and even order de novo trial, yet this is not a case, nor the facts in this case proper and appropriate to permit such a course, as indicated by the Supreme Court in the observations quoted above. Mr. Banerji relied on three more decisions. The first decision he cited was Punjab Cooperative Bank v. Lyallpur Bank Ltd. AIR 1934 Lah. 328 . That case in my view does not apply and it was a case of a bank in liquidation. The application there was not made so late and in the circumstances, as the present application is made before me. The other case on which he relied was Thirthasami v. Gopala ILR Mad. 32. That was a case for making the representative of a mutt a party to avoid multiplicity of proceedings. Both the facts and the controversies there have no similarity or analogy with the facts and controversies in the present case before me. The last of the series of cases on which Mr. Banerji relied was Mahaluxmi Bank Ltd. v. Kamakhyalal AIR 1958 Ass 56. There a person was made a party to the suit in view of the objection to defect in the party taken in the course of the arguments and it was held that mere delay was not a sufficient ground to refuse such an application if the presence of the party was necessary for a proper adjudication of the suit. There was no question of limitation involved in that case. Here there is. The Court there proceeded on the ground that the bank was a juristic entity and was entitled to sue and be sued so that the omission to implead Mr. Dutt was not fatal to the suit. As I have indicated the point of decision is different in the issues and controversies of this suit before me.

I next come to the last two objections about delay and costs. Costs can always be compensated and the party causing unnecessary costs can always be ordered by the Court to pay them. Mr. Banerji for the Plaintiff company appreciated that position and even offered to pay the costs of the suit thrown away, although he qualified that offer later on by saying that the question of costs thrown away may be reserved to be ultimately disposed of finally by the decision in the suit in case the proposed Defendant is added to this suit. I am of the opinion that in the facts of this suit this award of costs against the Plaintiff company will not meet the objection on the ground of, serious prejudice which I have already discussed. There is really no justification for the Plaintiff company in this case to have come forward with this application at this late stage when everything including evidence and arguments is practically over. As indicated by the Supreme Court in the decision cited above, viz. Narayan v. Gopal (Supra) this course cannot now be adopted in the present case and for the same reasons as laid down by the Supreme Court there.

The objection of delay is also in my view sound. Delay is a plain fact so far as this application is concerned. The delay is enormous. In fact, the application is made at the conclusion of the trial when all the evidence is before the Court from the parties to the suit. What, is worse is that in this delayed petition there is not a word of explanation why such a delay occurred. There is also no reason whatever for this delay. The Plaintiff''s own plaint pleads the fact that the Iron and Steel Controller of the Government of India was directly involved in the transaction because the plaint pleads such facts as that the Defendant was liable to sell these goods at the direction of and at the prices fixed by the Controller in the very first paragraph of the plaint. It also pleads the revision of the prices by the Controller which is the very sole basis of the Plaintiff''s claim for refund. Even then the plaint did not join the Steel Controller either as a necessary party or as a proper party. It need only be added here that the Plaintiff company even at one stage of the correspondence asked for refund of this money from the Steel Controller by its letter dated October 1/5, 1963. Even then the Iron and Steel Controller was not joined as a party to this suit. Although the Plaintiff company itself represented to the Iron and Steel Controller on October 1/5, 1963, to refund the excess, he delayed the filing of the suit by more than two years having filed it on December 16, 1965. That is not the end of the story. The written statement was filed on April 23, 1966, by the Defendant company where they specifically pleaded that the Defendant was acting only as an agent of the Iron and Steel Controller in the whole transaction and was not liable to be sued and expressly pleaded that the suit was bad for non-joinder of the Steel Controller. Such pleading of the Defendant company will be found in the whole of the written statement and particularly in paras. 10 and 14 thereof. Even then the Plaintiff company did not think of making an application of joining the Controller as a party. Again, when the suit came up for hearing, issues were settled on November 15, 1968, specifically raising issue No. (xi) viz., Is this suit bad for non-joinder of the Iron and Steel Controller? The suit was allowed to proceed on the basis of the issues so settled. All witnesses and all documents were produced and when the whole evidence was over and the arguments almost completed, the Plaintiff company comes forward with this application for adding the Steel Controller as a party without even offering any word of explanation for this delay.

For these reasons, I am satisfied that this application must fail and be dismissed with costs and issue No. (xi) must be answered in the affirmative. I hold that having regard to the nature of the contract in this suit and the nature of transactions between the Plaintiff and the Defendant and having regard to the issues raised the Iron and Steel Controller was a necessary party and essential party and not merely a proper party. I need only repeat that the Privy Council in AIR 1931 229 (Privy Council) disallowed a request to be allowed an opportunity of joining some necessary parties where such a course would necessitate a commencement of the proceedings de novo. Sir George Lowndes delivering the judgment in that case made the following observation:

Almost at the conclusion of his argument, counsel for the Respondents asked to be allowed an opportunity of joining the co-mortgagors who are, as he pointed out, already parties to the other suit under Appeal, but such a course would necessitate a commencement of the proceedings de novo and their Lordships were unable at this late stage to accede to his request.

They are not unmindful in this connection of the provisions of Order 1, Rule 9, CPC which lays down that no suit is to be defeated by reason of the non-joinder of the parties, but they are unable to hold that it has any application to an appeal before this Board in a case where the difficulty has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.

That is the principle now well-recognised and well-settled so far as the addition of necessary and proper parties are concerned. Both our Supreme Court in Narayan v. Gopal (Supra) as well as this Privy Council decision in AIR 1931 229 (Privy Council) are authorities on this point. It is unnecessary to site any more authorities or discuss any other cases on the point.

Issue No. (xii):

This issue raises the claim of the Plaintiff for interest. Claim for interest is pleaded in para. 16 of the plaint at the rate of 6 per cent but significantly from December 19, 1962, only and not from April 3, 1963, from when the Plaintiff otherwise pleads his cause of action to save limitation. The total amount of interest claimed is Rs. 15,222-07 P. This interest is claimed and it has been argued by Mr. Banerji for the Plaintiff company that such interest is for the wrongful detention of money otherwise payable to the Plaintiff. Now, it is admitted that there is no notice under the Interest Act in this case. It is also admitted that there is no agreement or contract about interest in this case. In fact, the question of price is that it is fixable by the Iron and Steel Controller and this particular feature would seem to exclude the possibility of any stipulation for interest in such a case. I, therefore, do not see how the Plaintiff''s claim for interest can succeed. It cannot succeed in any event when the Plaintiff is not entitled to the main claim for refund as I have held. But it also cannot succeed in the claim for interest having regard to the principle clearly laid down by the Supreme Court in the Union of India v. Rallia Ram AIR 1963 S.C. 1665 (1694, 1695).

For these reasons I hold that the Plaintiff is not entitled to interest as claimed in para. 16 of the plaint and I answer issue No. (xii) in the negative.

Issue No. (xiii):

This issue is the general issue raising the question, to what reliefs if any, is the Plaintiff entitled. Having regard to my findings on the foregoing issues, it must follow that the Plaintiff is not entitled to any of the reliefs claimed.

The suit, therefore, fails and is dismissed with costs. Certified for two counsel.

The application for amendment is also dismissed with costs as a Chamber application. Certified for counsel.