Protapmull Rameswar vs State of West Bengal and Others

P.K. Sarkar, J.—This appeal arises out of a suit for the recovery of money instituted by the plaintiffs who carried on the business of cloth dealers at Malda under the name and style of Binapani Bastralaya, alias Mangilal Dharamchand, Malda, against the Province of West Bengal (defendant No. 1) and Pratapmull Rameswar, a firm, of Calcutta, who were the authorised dealers or handling agents appointed by. the Government of Bengal for textiles during the year 1945 (defendant No. 2). The plaintiffs stated that during this year they received certain bales of cloth from the Sub-divisional Officer, Malda, to whom they were consigned by Pratabmull Rameswar, on payment to the said Sub-divisional Officer of the price thereof together with the commercial sales tax payable thereon and that the amount so paid was ultimately received by Pratapmull Rameswar. Subsequently the Commercial Tax Officer of Malda levied sales tax separately for the self-same goods and realised the same as the plaintiffs were registered dealers and in this way the plaintiffs had to pay the sales tax twice on the same goods. The total amount so paid to the Sub-divisional Officer of Malda was Rs. 7,516|9 as., on account of the invoices mentioned in Schedule A of the plaint. The plaintiffs claimed refund of the said amount from the Government and also from Pratapmull Rameswar, but the same was not refunded to them by either. They also made certain excess payments for the bales of cloth received by them, some of which were found to be short in weight, amounting to Rs. 547|5 as., and paid another sum of Rs. 259]1 a for railway freight which was payable by Pratapmull Rameswar but was realised from them by the Sub-divisional Officer of Malda. They claimed refund of these amounts also, the total amount claimed under all heads being Rs. 8,322|15|6, as set out fat Schedule B of the plaint. It was further stated by the plaintiffs that Pratapmull Rameswar had request the Sub-divisional Officer of Malda to pay this amount to them from the money which Pratapmull Rameswar had in deposit with the Sub-divisional Officer, but that in spite of that the amount was not paid. The plaintiffs prayed for a decree in the first instance against the Province of West Bengal together with damages, and, in the alternative, in the event of it being proved that Pratarmull Rameswar had no deposit with the Government and was alone liable to pay the amount, the plaintiffs prayed that a decree might be passed against them. The suit was contested by both the defendants. The defence of the Province of West Bengel, so far us is material for our present purpose, vas that there was no contractual relationship between the plaintiffs and the Government and that the Sub-divisional Officer. Malda, was neither the agent of the Government, nor was "authorised by the Government, to represent them, in the transactions mentioned in the plaint. It was explained in paragraph 8 of the written statement that cloth being a controlled commodity at the relevant time, it was decided by the Government that the wholesale cloth dealers in the district would receive the railway invoices through the Sub-divisional Officer and that to ensure prompt payment to the handling agent it was also arranged that the price of the goods would be paid by the wholesalers, to the Sub-divisional officer who would merely transmit the money to the handling agent. It was claimed that the Sub-divisional Officer''s function in the matter was similar to that of a post office, and it was pleaded that if any amount had been overcharged and consequently overpaid by the plaintiffs, the handling agent who had received the amount was liable for the same.

The defence of Pratapmull Ramewar was a denial, of liability on the grounds that they had had no business dealing with the plaintiffs and that there was never any agreement between them for payment of any sum whatsoever. They stated that as the handling agent for the Government they had supplied the bales of cloth to the Sub-divisional officer, Malda, under instruction of the Government and tinder a running account maintained in the name of the Sub-divisional Officer and that all moneys due from the Sub-divisional Officer to them or due to the Sub-divisional Officer from them were adjusted in the said account. So far as the amount claimed by the plaintiffs was concerned, Pratapmull Rameswar stated that they had been cleared by credit in the said account and that the Sub-divisional Officer had been informed of the same and instructed to pay the amount to the party to whom it was due.

The learned Subordinate Judge held that the Government had no liability for the amount claimed and was not a necessary party to the suit, as the Sub-divisional Officer merely controlled the allotment and distribution of cloth as between the handling agent and the wholesale dealers and acted as a mediator between them. He found, however, that dependent No. 2 was liable for the amount claimed by the plaintiffs and decreed the suit against the said defendant with costs and dismissed it against the Province of West Bengal with costs.

Defendant No. 2 has appealed to this Court against the decree. There has been no appeal by the plaintiffs: from the dismissal of the suit against the defendant No. 1, but Mr. Mukherjee appearing for the plaintiffs argued that if it was found that defendant: No. 2 was not liable for the amount claimed and their appeal succeeded, the suit should be decreed against defendant No. I in the special circumstances of this case, under the provisions of Order XLI, rule 33 of the CPC and specially relied upon the illustration to the said rule.

Mr. Gupta appearing for the appellant argued that the appellant was not liable for the amount claimed as there were never any business dealings between the plaintiffs and the appellant and no contractual or legal relationship either arose or was ever established between them The position of the appellant was, according to him, that of an agent for the Government; for a particular purpose, and, as handling agent, the appellant had no part in the distribution or sale of the goods which was clone by the Sub-divisional Officer, Malda, to whom the goods were consigned by the appellant, according to the programme of the Director of Textiles, and the Sub-divisional Officer collected the prices of the goods from the wholesalers to whom he distributed them and sent the sums so collected to the appellant in a lump and the accounting was made with the Sub-divisional Officer who acted in the matter under the authority of the Government as the controlling authority.

When the appeal was first argued the agreement by which the appellant had been appointed as the handling agent was not before us. This document had not been filed in the Trial Court by either of the defendants. An application had, however, been filed by the appellant under Order XLI, rule 27 of the CPC praying for admission of the agreement as additional evidence with an affidavit showing cause why the agreement could not be filed in the trial Court. The agreement together with the application was printed in the paper book. We felt that there was a lacuna in the evidence and that the agreement was necessary for the proper decision of the questions raised in this appeal, and this application was allowed and the agreement was admitted as additional evidence with the consent of the learned Government Pleader who filed certain other documents which were also admitted in evidence with the -consent of the other side.

This agreement executed on the. 12th June, 1945, by the partners of the firm of Pratapmull Rameswar on one side and the Secretary. to the Government of Bengal on the other shows that the firm of Pratapmull Rameswar was appointed as the authorised dealer or handling agent for. the purpose of receiving, purchasing, storing and selling of cloth available for consumption in Bengal in accordance with the written authority or direction of the Government or the Director which term meant Director of Textiles, Bengal, and included any-Additional Director or any officer duly authorised in writing by the Director of Textiles. The authorised dealer was directed by clause (5) of the agreement to receive, purchase and sell the cloth at the prices prescribed by law or approved of or fixed by the Director in writing and by clause (6) to consign, deliver and sell. the cloth only to such persons as the Government or the Director might nominate, It was further provided that the authorised dealer should not be required to part with the property in any goods except on prepayment. The authorised dealer was directed to maintain books of accounts in the manner prescribed by the Director and to maintain a separate account in a Scheduled Bank to be approved of by the Director wherein all moneys received by him concerning this business exclusively should be credited and from which all disbursements should be made. He was to receive as remuneration a commission of 21/2 per cent. on the ex-mill price of the cloth. The agreement provided that the money representing the difference between the purchase and sale prices of the cloth should belong to Government after deduction of this remuneration and that in the event of the sale proceeds not being sufficient to cover the moneys paid for the goods by the authorised dealer and his remuneration, the deficiency should be made up by the Government. The authorised dealer was required to furnish security and, in the event of any dispute between him and the Government, the agreement provided that the same should be referred to an arbitrator nominated by each party whose decision, or, in the event of any disagreement between them, the decision of the umpire should be final and conclusive.

So far as it appears from the evidence, the procedure followed under this agreement in the district of Malda was that the authorised dealer would receive the bales of cloth from the, mills on payment and would then consign the same, according to the programme of the Director of Textiles. We are concerned in this case with certain invoices, viz., invoices Nos. 45, 87, 93, 133 and 496, in respect of which the plaintiffs have claimed refund of money. One of these invoices, viz., invoice No. 45, has been printed in the paper book. It was dated the 4th June, 1945, and was for 225 bales of cloth which were consigned to the Sub-divisional Officer, Malda, by the appellant against the programme of the Director of Textiles for the first period of May, 1945, as specifically mentioned therein. The other invoices which have not teen printed were shown to us in original and they were for different bales of cloth similarly consigned to the Sub-divisional Officer, Malda, against the programme of the Director of Textiles for subsequent periods. Payments for these goods were arranged through the Calcutta Commercial Bank who was to remit the prices of these goods to the Bank of India against the invoices.

So far as invoice No. 45 is concerned, the receipt, exhibit D (1), dated the 18th July, 1945, of the Calcutta Commercial Bank shows that a sum of Rs. 2:19,537|9|9 pies had been received by the Bank from the District Magistrate of Malda for remittance to the Bank of India. On the 13th July, 1945, the appellant had sent a telegram to the District Controller of Civil Supplies asking" him to remit Rs 22,20,000/- immediately against invoice No. 45, exhibit D(2). Exhibit D(3) is a note by an officer of the Government showing that these 225 bales of cloth had been distributed among three wholesalers including the plaintiffs and mentioning the amount to be paid by each and the note further stated that, if approved, the wholesalers might be asked to make the payments as shown therein. Exhibit D(4) is another note by another officer to the effect that the dues of Pratapmull Rameswar, i.e., the appellant, came up to Rs. 2.19,537|9|9 pies and that this amount might be remitted to them. Exhibit D (5) is an order-passed presumably by the District Magistrate of Malda for remitting the said amount to the appellant, and thereupon the amount was deposited in the Calcutta Commercial Bank in the name of the District Magistrate, as would appear from the Bank receipt already referred to.

With regard to the other invoices, the Bank receipts produced show that the prices of the goods of these invoices had been received by the Bank from the Sub-divisional Officer, Malda, through Messrs. Binapani Bastralaya, i.e., the plaintiffs. Vide Exhibits B, B(1) and B(2).

Sukumar Banerjee, an employee of the Civil Supplies office, Malda, who was examined by defendant No. 1 stated that the highest authority in the control department was the Director of Textiles and that in 1945 no District Controller having been appointed for Malda, the District Magistrate used to function as such and the wholesale dealers were appointed by him. So the District Magistrate must have paid for the invoice No. 45 in the capacity of the District Controller. The Sub-divisional Officer, Malda, appears to have functioned under the District Magistrate in the department of Civil Supplies, and when subsequently District and Assistant Controllers were appointed, they carried on correspondence with the appellant and the wholesalers and replied to the letters addressed by the appellant to the Sub-divisional Officer, Malda, as is clear from the correspondence filed.

The programme of the Director of Textiles referred to in the invoices has not been produced, but it has not been contended before us on behalf of the Government that there was no such programme. Under the agreement the authorised dealer was to consign, deliver and sell the cloth only to such persona as the Government or the Director of Textiles might direct and should do so only on prepayment. The programme of the Director of Textiles for Malda must have indicated the persons to whom the appellant was to consign, deliver and sell the cloth during the relevant period and since the bales of cloth mentioned in the invoices in question had been sent to the Sub-divisional Officer, Malda, according to the programme of the Director of Textiles, it must be presumed that the appellant had been directed by the Director of Textiles to consign these bales of cloth to the Sub-divisional Officer. So the Sub-divisional Officer must be taken to have been the person to whom the cloth was consigned, delivered and sold, according. to the agreement. There is nothing to show that the appellant was ever directed to consign or deliver the cloth to the plaintiffs or to any of the wholesalers. The prepayment to the appellant was arranged and made by the District Magistrate in respect of the first invoice No. 45, and the appellant had wired to the District Magistrate to send the money. That invoice was distributed by the District Magistrate among the three wholesalers, The amount payable by each was separately fixed and the total sum paid was credited in the Bank in the name of the District Magistrate and the Bank receipt was issued to the District Magistrate. The wholesalers were not asked to pay directly to the appellant. Similarly the other payments were credited in the Bank in the name of the Sub-divisional Officer. It is thus clear that the appellant never dealt with any of the wholesalers directly and this was also the plaintiffs'' case in the plaint. Mr. Mukherjee for the plaintiffs did not dispute this and this was also in a manner admitted in the written statement of the Government. The Government''s case, however, is that the Sub-divisional Officer simply functioned as the post office between the authorised dealer and the wholesalers, and though the learned Subordinate Judge has accepted this case and held that "he functioned merely as a mediator, it will be seen from the evidence and the correspondence filed that this was not the correct position.

The learned Subordinate Judge has laid stress on the fact that the appellant had knowledge that the goods were being received and paid for by the wholesalers, but mere knowledge would not create any legal relationship. The main question is whether the relationship of a vendor and a purchaser was created between the appellant and the wholesalers by contract or otherwise in the matter of these consignments, and on this point the learned Subordinate Judge found that no such relationship by contract was ever established between them, but he nevertheless was of opinion; that some sort of relationship was established between them under the Defence of India Rules. We are unable to agree with him in this view. We are not concerned here with the powers of the Government under the Defence of India Rules but with the legal relationship, if any, between the plaintiffs and the appellant arising out of these transactions. It is true that the consideration for these goods was supplied by the wholesalers, but, as Mr. Gupta has pointed out, this would not result in a contract between the appellant and the wholesalers.

In the case of Krishnalal v. Promilabala, (1) 32 C.W.N. 634, Rankin, C.J., held that there is nothing in the definition of "consideration" in section 2 of the Indian Contract Act to encourage the idea that a contract can be enforced by a person who is not a party thereto, and that, on the other hand, this notion is rigidly excluded by the definition of "promisor" and "promisee" in the section. In India persons who are not parties to a contract cannot be admitted to sue thereon except in cases where there is an obligation amounting to a trust arising out of the contract.

In so far as the sums claimed by the plaintiffs are concerned, it is not disputed I by either defendant that these sums were overpaid by the plaintiffs and that they are entitled to a refund thereof. But the sums had been paid by the plaintiffs to the District Magistrate and the Sub-divisional Officer, and merely because the sums were transmitted ultimately to the appellant, that would not give the plaintiffs any right to sue the appellant or recover the sums from the appellant. Mr. Mukherjee argued that it was a case of money had and received and that the Appellant having ultimately received the excess amount was bound to refund the same, but so far as: the plaintiffs are concerned, the money had been received by the Sub-divisional Officer and the plaintiffs can have a remedy, if any, only against the person to whom they paid and cannot pursue the remedy against the subsequent transferees of the amount. The correspondence which is in evidence does not show that there was ever any claim for refund by the plaintiffs from the appellant directly. The claim was apparently made to the Sub-divisional Officer or to the District or Assistant Controller and the correspondence shows that the District or Assistant Controller was communicating with the appellant. There is no correspondence showing that, the Sub-divisional Officer or the District or Assistant Controller ever asked the appellant to refund the amounts to the plaintiff directly or by actual payment. They were on the other hand, always calling upon the. appellant to settle the accounts. Exhibit A (18) is a copy of a letter written by the Assistant Controller to the Assistant Director of Textiles, Calcutta, on the 12th November, 1945, which contains the following statements,

"Our wholesalers are entitled to a refund of Es. 10,437|12|3, for 5 invoices. If the refund is accepted by the Handling Agent we shall adjust the amount with our wholesalers".

There was no mention of any direct dealing between the wholesalers and the handling agent in this letter, and it was not suggested that the handling agent should refund directly to the wholesalers. It was only a question of adjustment of accounts, according to this letter.

That this was the correct position is also clear from the other letters on record. Exhibit 2 is a letter written by the appellant to the Sub-divisional Officer on the 2nd January, 1947, in which it was stated that the sale tax declaration forms had been received for amounts totalling Ea. 7,516|9 as. and that the plaintiffs'' sale tax account had already been cleared long ago by crediting the amount to the account of the Sub-divisional Officer with the appellant towards the latter''s dues and the Sub-divisional Officer was asked to adjust the sale tax due to the plaintiffs from his account directly. The same statement that the sale tax account had been cleared was reiterated in another letter, exhibit A (6), dated the 10th 113th June, 1947, The Sub-divisional Officer or the District Controller did neither protest nor deny, that the account had been cleared in this manner. On the 2nd January, 1947. a letter, exhibit 2(a), was written by the appellant to the Sub-divisional Officer in which it was stated that the, refund of freight amounting to Es. 259|1 a. on invoice No. 87 had already been credited to the Sub-divisional Officer''s account and he was asked to refund the same to the party directly.

With regard to the other amounts claimed by the plaintiffs it appears that they were the subject matter of agreements signed by the appellant and by the plaintiffs on behalf of the Sub-divisional Officer. Exhibit 2(b) is an agreement showing that the Sum, mentioned therein was payable by the appellant to the Sub-divisional Officer and exhibit 2(c) is another agreement showing that the sum mentioned therein was payable by, the Sub-divisional Officer to the appellant. These agreements related to the settlement of claims for shortage of goods and in one case the sum was Rs. 1,252|15|3 pies and in the Other case Rs. 880|3|9 pies. Out of this sum of Rs. 880|3|9 pies Rs. 705|9|9 pies were payable by the plaintiffs, and deducting this sum from Rs. 1,252|15|3 pies, the plaintiffs'' claim has been estimated at Rs. 547|5|6 pies for shortage of goods in the plaint.

Now, the agreement, exhibit 2(b), under which the appellant was liable to the Sub-divisional Officer for Rs. 1,252 and odd specifically mentioned that this agreement was subject to adjustment of accounts with regard to the other invoices. It has been contended by the, learned Government Pleader that the Sub-divisional Officer was not bound by these agreements as he did not sign them. It is true that they were signed by the wholesalers, but these agreements were concluded at the instance of the authorities of the Civil Supplies Department in the presence of an Assistant Director of Textiles after examination of the relevant records. The correspondence shows that an Assistant Director of Textiles (Claims) was there to settle all such disputes, and in both exhibits 2(b) and 2(c) the parties to the dispute were described as Sub-divisional Officer, Malda, versus Pratapmull Ramoswar. As the claims had been advanced by the wholesalers and they were vitally concerned in these settlements, their signatures appear to have been taken on behalf of the Sub-divisional Officer, but it cannot be contended that the Sub-divisional Officer had no concern with the e agreements and was not bound thereby. Such a position was not taken up in the sub-(sic) correspondence between the District Controller or the Assistant controller and the appellant relating to adjustment of accounts, and it was never suggested that the department was not bound by the agreements. Reference may be made to exhibit A (2) written by the District Controller to the appellant on the 13th|14th March,.1947, in which the agreements were mentioned and the amounts under agreement included in the statement of accounts. In this letter the appellant was called upon to pay up a certain sum to the Sub-divisional Officer for final settlement of accounts. On the 18th April, 1947, the District Controller wrote exhibit A (4) to the appellant challenging the correctness of the accounts submitted by the appellant and enclosing a statement of accounts under which a sum of Rs. 6,173 and odd was shown as payable by the appellant to the Sub-divisional Officer and the appellant was asked to send this sum immediately. In this statement of accounts it was definitely stated that the appellant had refunded duly the sale tax of two of the invoices in question to the registered wholesalers. Certain sale taxes are included in this account as realised "by us" (department) and certain other amounts are shown as sale tax once adjusted while the same was receivable "by us" as the goods were delivered to unregistered firms. No objection was taken in this statement of accounts to the amount of railway freight and the amounts which were the subject matter of the agreements although these had been shown in the appellant''s statement of accounts as refunded. There was some further correspondence regarding the correctness of the accounts and finally on the 3rd September, 1947, the appellant sent a statement of accounts cancelling all previous statements and in this a credit balance was shown in favour of the Sub-divisional Officer which the appellant agreed to remit on confirmation. By his reply, exhibit A (7), the District Controller accepted this statement of accounts subject to a claim for Rs. 391|- only and demanded payment of the amount admitted plus this sum. The concluding paragraph of this letter which is very important is in these words,

"The matter is long pending and our wholesalers have issued notices against us for the month."

Even in this letter, inspite of notices having been received from the wholesalers, the appellant was not asked to refund the amounts directly to the wholesalers nor was it hinted that the appellant was directly liable to the wholesalers for their claims. Apparently, if the sum demanded has been paid by the appellant to the district Controller, there would have been no further claims against the appellant and the accounts would have been settled. The accounts were, however, not settled because the appellants claimed interest, as the subsequent correspondence shows, and ultimately on the 16th March, 1948. the District Controller wrote to the appellant exhibit A (11) demanding remittance of Rs. 6,173|- immediately as "our full and final claim on you". In case of failure to do so by the 31st March, 1948, legal action was threatened, but even in this letter it was not stated that the appellant would also be liable to pay the claims of the wholesalers directly.

Copies of some of the letters were forwarded by the appellant to the plaintiffs, and it was contended that this was evidence of direct dealing between them and of admission of liability on the part of the appellant, but we cannot agree to such a construction being placed upon the copies sent The copies were forwarded only to show that the amounts in dispute or claimed had been credited to the account of the Sub-divisional Officer and that the plaintiffs should ask for refund from the Sub-divisional Officer or the department. The plaintiffs also understood the matter in that way, as would be clear from paragraph 12 of the plaint where the position of the appellant in relation to the plaintiffs is correctly stated. This paragraph stated that Pratapmull Rameswar had requested the Sub-divisional Officer, Malda, to pay the amount claimed by the plaintiffs from the amount which Pratapmull Rameswar had in deposit with the Sub-divisional Officer, Malda and the plaintiffs, therefore, asked, for a decree against defendant No. 1 in the first instance, and for a decree against defendant No. 2 only if it was proved that the latter had no deposit with the Province of West Bengal and was alone liable for the amount.

Our attention was drawn to an unreported decision in Appeal from Appellate Decree No. 72 of 1952, Jay Kumar Jain v. Sk. Hanif, a case between another handling agent and a wholesaler in which a similar agreement was construed differently, in that case, however, the defence taken by the handling agent was that he was a mere agent of the Government. We are not aware on what facts that case was decided. All that appears is that on the evidence adduced in that, case it was found that the effect of the agreement was that the handling agent would sell the goods under the supervision and direction of the Government and that the sale to that case was a sale to the plaintiffs under the supervision and direction of the Government.

On the evidence and specially on the correspondence proved in this case, however, We are bound to come to the conclusion that the goods were consigned, and the sale was, to the Sub-divisional Officer, according to the programme of the Director of Textiles, and not to the wholesalers, and that this was quite consistent with the agreement which directed such sale to the person or persons nominated Toy the Government or the Director of Textiles.

The result, therefore, is that we held that the plaintiffs had no cause of action against the appellant and the latter was not liable in any way to the plaintiffs for the amount claimed. This appeal should, therefore, succeed and the suit should be dismissed against the appellant with costs of the Trial Court.

The next question is whether we should'' exercise our powers under Order XLI, rule 33 of the CPC and proceed to consider the liability of the defendant No, 1, in the absence of an appeal by the plaintiffs from the decree of the Trial Court dismissing the suit against defendant No. 1. That the plaintiffs had made excess payments to the District Magistrate and the Sub-divisional Officer and are entitled to a refund of the same was not disputed on behalf of the defendant No. 1 at any time, though the Government denied any liability in the matter. That refund was due to them was also admitted in the correspondence To which we have already referred.

The only question which was argued by the learned Government Pleader was that the Government was not liable for the actions of the Sub-divisional Officer who was not authorised by the Government to represent them in these transactions and it was also argued that the plaintiffs did not plead any contract with the Government as such. As has already been observed, this position was never taken up in the correspondence by any of the officers of the Government. We have already seen that the goods were consigned to the Sub-divisional Officer under a programme of the Director of Textiles. Since there is no denial on the part of the defendant No. 1 that there was such a programme and the programme has not been produced to show that the fact was otherwise, we must take it that the Sub-divisional Officer had actually been authorised by the Director of Textiles to receive the goods according to the programme. It is admitted that the Director of Textiles was the highest authority in the department of control and there can be no question that he had authority from the Government to make a programme. It is also clear from paragraph 8 of the written statement of defendant No. 1 that the Government had come to certain decisions in the matter and these decisions must have been embodied in Government instructions which have not, however, been produced. It is stated in this paragraph that cloth being a controlled commodity at the relevant time, for the more efficient working of the control system and for enabling the Government to keep a watch on the machinery of control, it was decided that the wholesale cloth dealers would receive their railway invoices through Sub-divisional Officers and that to ensure prompt payment to the handling agent it was also arranged that the price of the goods would be paid by the wholesalers to the Sub-divisional Officer. The decision referred to in this paragraph must necessarily have been a decision of the Government and the arrangement referred to must have been sanctioned by the Government. This paragraph, therefore, amounts to an admission that the Sub-. divisional Officer received the invoices, distributed them to the wholesalers and realised the prices of the goods from them under the authority and sanction of the Government What would be the legal position arising out of this arrangement is another matter and must be decided by the Court, but if the intention of the Government was, as is suggested in paragraph 8, that the Sub-divisional Officer would function merely as a post office between the handling agent and the wholesalers, and if such intention was expressed or implied in the Government instructions in the matter, the said instructions would have been the best evidence on the point and since they have not been produced, we cannot make any presumption in favour of the Government, but must make a presumption adverse to the Government. It has not been suggested that any such intention was communicated to the handling agent or to the wholesalers.

The learned Government Advocate produced as additional evidence the licenses issued to the plaintiffs and another firm of wholesalers of Maldah under the Bengal Cotton Cloth and Yarn Control Order, 1945, and pointed out that the licenses did not show that the wholesalers were to have received their supplies from the Sub-divisional Officer, hut they did not show either that the supplies were to have been received from the handling agent. The licenses only authorised the firms in question to sell and store cloth and yarn under the conditions imposed therein and it was not necessary to mention in them how the licensees would receive their supplies. Another document was produced to show that the appellant had agreed to pay some money to a wholesaler of Basirhat in full settlement of the latter''s claims on some invoices, but it is not known to whom the said invoices were consigned and in what circumstances the payment was agreed to. So these documents are of no assistance to us.

According to the agreement with the appellant, the Government''s position in relation to the authorised. dealer or handling agent was not that of a controlling authority only. Under the agreement the Government was to get the difference between the purchase and sale prices of the goods handled by the authorised dealer, subject to the deduction of the latter''s commission which was to be paid for the services rendered as in the agreement. The Government also undertook to take over all stock of unsold cloth on payment to the authorised dealer, on the termination of the agreement, and to indemnify him in certain matters. The authorised dealer had to furnish security from which the Government was entitled to deduct any loss or damage sustained by the Government by reason of any breach or mistake committed, by, the authorised dealer. It cannot therefore, be said that the Government had no connection whatsoever with the transactions entrusted to the authorised dealer by the agreement excepting as the controlling authority.

In these circumstances, the prices of the goods having been received by the Sub-divisional Officer from the plaintiffs under the sanction and authority of the Government, and the amounts claimed by the plaintiffs having been paid in excess, the Government "was liable to refund the same to the plaintiffs and we hold accordingly. We consider this to be a proper case in which we should exercise our powers under the provisions of Order XLI, rule 33 of the Code of Civil Procedure. The illustration to the rule covers a case like this We are not, however, inclined to allow any damages against the Government. The suit will, therefore, be decreed only for the amount actually overpaid, i.e., Rs. 8,322|15]6 pies with proportionate costs of the Trial Court. This appeal is accordingly allowed with costs which will be borne equally by the plaintiffs and defendant No. 1. The suit is ''dismissed against the defendant No. 2 with costs of the Trial Court, and is decreed against defendant No. 1 for Rs. 8,322|15|6 pies with proportionate costs of the Trial. Court.

Mookerjee, J.

I agree.