K. Subba Rao, C.J.The above appeals arise out of a batch of suits raising similar questions and they may, therefore, be conveniently disposed of together. The defendants are the same in all the suits (sic)cept in one but the plaintiffs are different.

2. A. S. No. 283 of 1951 arises out of O.S. No. 215 of 1949 on the file of the Court of Subordinate Judge, Vijayawada. That is a s(sic) filed for recovering a sum of Rs. 9,106/4/- w(sic) interest as damages from the defendants. (sic) case of the plaintiff is that the defendants (sic)tered into a contract with the plaintiff to 75 bales of Chittivalasa or Nellimerla 40" x H. D. D. W. plain pucca rope bound gunnies (e) (sic)bale consisting of 400 gunnies) at Rs. 56/8/6 100 gunnies to be delivered to the plaintiff Vijayanagaram or Nellimerla mill siding in the monthly instalments of 25 bales each at the of October, November and December respective.

Alleging that the defendants refused to delivery, though demanded, on the ground t(sic) under the Jute Price Control Order the cont(sic) had only to be settled and the difference in p(sic) alone should be paid, the plaintiff instituted above suit claiming damages on the basis of difference between the market rate prevailing the due dates and the rate fixed in the tract.

3. The defendants pleaded that the suit tract was a wagering contract and, there not enforceable in law, that it was entered while the Jute Price Control Order was in f(sic) and, therefore, it ought to have been settled the rate mentioned in the Order, that in Polisetti Satyanarayana, who was the real son with whom the defendants entered into contract, settled the contract on that basis that the contract was also void and unenforce under the provisions of Madras Act XIV of They further pleaded that the market rate or(sic) due dates was only Rs. 56/6/10 per 100 gunr(sic).

4. The learned Subordinate Judge held the contract was not hit at by the provision Madras Act XIV of 1946, that the market on the due dates were Rs. 87/-/6, Rs. 85/4/6 Rs. 88/-/6 for 100 gunnies and that, on that (sic) the total amount recoverable by the plaintiff way of damages was Rs. 8909/6/-. The defendants preferred Appeal No. 283 of 1951.

5. A. S. No. 704 of 1951 arises out of No. 127 of 1950 and C. R. P. NO. 1862 of 195 of Small Cause Suit No. 132 of 1950 on the of the Subordinate Judges Court, Rajahm(sic) Both were filed by the same plaintiff against same defendants. In the former suit, the plaintiff claimed to recover a sum of Rs. 10293/-damages in respect of a contract dated 24-3(sic).

6. The plaintiffs case is that the parti(sic)tered into contract No. 1325 on 24-3-1947 by the plaintiff agreed to sell to the defendant (sic)bales of gunnies of the description 40" x 2 D. Chittivalasa or Nellimerla D. Ws. a(sic) 19/12/6 per 100 gunnies deliverable in two instalments by the end of May and June, that on 23-5-1947, in partial settlement, the plaintiff and defendants entered into contract 2194 under which the defendants were t(sic) the plaintiff 30 bales of gunnies bearing the description at Rs. 84/-/6 in two equal insta(sic) by the end of May and June 1947 and that under the above settlement of contract, the pl(sic) was entitled to get from the defendants Rs. on 31-5-1947 and Rs. 4050/- on 30-6-1947.

7. The defendants, inter alia, pleader the contracts contravened the provisions Jute Price Control Order, 1947, and the I ential Articles Control and Requisitioning temporary Powers) Act 14 of 1946 and, there-(sic)e, they were void and unenforceable. They (sic) pleaded that the contracts were not valid in (sic) as the parties did not intend taking delivery the goods but only to adjust the difference in (sic)es.

8. The learned Subordinate Judge held that contracts were not hit at by the provisions Madras Act XIV of 1946 and that they were (sic) not in the nature of wagering contracts. these findings, he gave a decree in favour of plaintiff as prayed for. The defendants pre-(sic)ed A. S. No. 704 of 1951 against the said de(sic).

9. The latter suit was filed by the same plaintiff for recovery of a sum of Rs. 1,000/- (sic)ged to be due on a bill of exchange dated 1947 drawn by the defendants in favour of plaintiff directing payment of Rs. 825/- to (sic)setti Narayana Rao. The plaintiff alleged (sic)he honoured the hundi by paying the said (sic)unt to Narayana Rao but the defendants did pay that amount.

10. The defendants, while admitting the fact they executed the hundi, pleaded that their (sic)lity to Narayana Rao arose under contracts 976 and 2656 dated 4-3-1947, that the said (sic)racts were void and unforceable because they in the nature of wagering contracts and because they were hit at by the provisions (sic)ct XIV of 1946, that the consideration for hundi which was drawn in discharge of that (sic)ity was illegal, and that therefore the hundi not enforceable.

11. The learned Subordinate Judge held the suit amount had nothing to do with the acts entered into between the plaintiff and defendants and, therefore, the defendant (sic) liable to pay the amount as soon as the (sic)tiff had paid the amount to the said Nara(sic) Rao. C. R. P. No. 1862 of 1951, was filed by defendants against that decree.

12. A. S. Nos. 701 of 1951 and 832 of 1952 out of O. S. No. 52 of 1949, on the file of the (sic) of the Subordinate Judge, Vijayawada. The was for recovery of a sum of Rs. 31.309/14/- up of (i) Rs. 1695/8/- alleged to be due on (sic) dealings between the defendants and the plaintiff; (ii) Rs. 2295/10/- damages for breach of act dated 1-11-1946 and (iii) Rs. 27,318/12/-(sic)ges for non-performance of two contracts (sic)ed into on 20-1-1946.

13. As regards the first item, the plaintiffs (sic)s that he had dealings on katha with defendants 2 and 3, that the defendants had open(sic) kathas in their accounts relating to the plaintiff, that after coming to know of that fact, (sic)d also separated the accounts in his books (sic)at under the katha in the name of Alapati murthi and Gelli Krishnamurthi & Co., the company was liable to pay him Rs. 1545/- muncipal and Rs. 150/8/- as interest.

14. In regard to the second item, the plaintiff case is that the defendants agreed to de(sic)o him 25 bales of Calcutta Budge Budge (sic)5" gunny bags at Rs. 86/-/6 per 100 bags (sic) bales of 6"x72" Chittivalasa or Nellimerla (sic) of 6 ply at Rs. 260/1/- per bale and that defendants refused to deliver the said gunny and therefore he was entitled to recover a (sic)f Rs. 2295/12/- as damages being the dif(sic) between the contract rate and the market (sic) respect of the gunny bags.

15. In regard to the third item, the plaintiffs case is that, on 20-1-1946, the defendants entered into two agreements with the plaintiff for the supply of 225 bales of gunny bags, each bale consisting of 400 gunnies at Vijayanagaram or Nellimerla Mill, siding under each of the contracts and agreed to deliver the goods in instalments at 75 bales per instalment in respect of each of the two contracts by the end of the months of October, November and December, 1946, that they made default in giving the delivery and therefore he was entitled to damages for breach of the contract for non-delivery of the gunny bags being the difference between the market rate and the contract rate in respect of each of the three instalments.

16. The defendants contended, inter alia, that the plaintiff was dealing with three firms (a) Alapati Ramamurthi and Gelli Kirshnamurthi, (b) Alapati Ramamurthi and Gelli Krishnamurthi & Co., and (c), Alapati Ramamurthi, Gelli Nageswara Rao, and others and that the account referred to in the plaint contained items which distinctly and separately pertain to one or other of the three firms.

They particularised some of the wrong entries in the plaint. In regard to the second item, the defendants pleaded that they were always ready and willing to deliver the bales if the cost price was paid but, the plaintiff was not in a position to pay that amount. On that account, they cancelled the contracts and, therefore, the plaintiff was not entitled to any damages.

They also pleaded that the said contract was also void as it contravened the provisions of Act XIV of 1946. With regard to the third item, the defendants pleaded that along with other forward contracts the suit contracts were also settled at Rs. 58/6/6 and the plaintiff could not, therefore, claim the difference in price as damages in respect of the said contracts. They also raised the plea that the contracts were void and unenforceable as contravening the provisions of Madras Act XIV of 1946.

17. In regard to the first item, the learned Subordinate Judge, held that the accounts were true and correct but that the debit entry of Rs. 3300/-in Ex. A. 13 (a) is as much a slip as the credit entry of Rs. 5,840/10/- in favour of the 1st defendant-firm. After giving credit to the amount paid, he gave a decree to the plaintiff for a sum of Rs. 93/3/6. In regard to the second item, he held that the defendants refused to deliver the goods as agreed to on 1-11-46 and that the plaintiff was always ready and willing to pay the price.

He further held that he was entitled to recover damages on the basis of the market rate on 25-11-46. In regard to the third item, the learned Judge found that the settlement pleaded was not true. He also held that the provisions of Act XTV of 1946. or the notification issued by the Government under the said Act would not affect the validity of the contract in regard to the first instalment but it would affect the instalments to be delivered in November, and December, 1946.

On those findings, he held that the plaintiff was entitled to damages in regard to the first instalment on the basis of the difference between the contract rate and the market rate obtaining at the end of October, 1946, and that in respect of the two other instalments to be delivered in November and December, 1946, the plaintiff was not entitled to claim damages at a rate higher than the control rate.

Even, in regard to the said instalments, the learned Judge held that the contracts were not void because the control rate even in those two months was more than the contract rate. On that finding, he gave a decree for damages in a sum of Rs. 8700/- in respect of the first instalment, Rs. 171/14/3 in respect of the 2nd instalment and Rs. 171/14/3 in respect of the third instalment making a total of Rs. 9043/12/6. The defendants preferred Appeal No. 701 of 1951, against the decree in SO far as it was against them and the plaintiff preferred Appeal No. 832 of 1952 against that part of the decree that went against him.

18. Appeals Nos. 385 and 392 of 1952, arise out of O. S. No. 222 of 1949, which was filed for the recovery of Rs. 8778/2/- as damages for breach of contract by the defendants.

19. The plaintiffs case is that defendants 2 to 7 who were partners of the 1st defendant-firm, agreed to sell to the plaintiff 75 bales of Chittivalasa or Nellimerla 40" x 28" H. D. D. W. plain pucca rope bound gunnies to be delivered in three equal instalments of 25 bales each at the end of October, November and December 1946 at the rate of Rs. 56/8/6 per 100 gunnies and that though he made a demand, the defendants refused to comply with it on the ground that the contract had to be settled under the Jute Price Control Order and the difference only should be paid. The suit was, therefore, filed for damages in a sum of Rs. 8778/2/- being the difference between the contract rate and the market rate.

20. The defendants pleaded, inter aha, that the contract was entered into in the name of the plaintiff Polisetti Satyanarayana and, therefore, the plaintiff had no locus standi to file the suit that the suit contract was void not only because it was in the nature of a wagering contract but also for the reason that it contravened the provisions of the Jute Price Control Order.

21. The learned Subordinate Judge held that the plaintiff had locus standi to file the suit, that the contract was not a wagering contract, that in regard to the first instalment, the contract was not hit at by the Jute Price Control Order but that the contract in respect of the other two instalments offended the provisions of the said Order.

In the result, he gave a decree for a sum of Rs. 2823/15/6 made up of the difference between the contract rate and the market rate in regard to the first instalment and the difference between the market rate and the control rate in respect of the 2nd and 3rd instalments. Defendants preferred A. S. No. 385 of 1952 whereas the plaintiff filed A. S. No. 392 of 1952 against the decree in so far as it went against them.

22. Second Appeal No. 5 of 1952 arises out of O. S. No. 45 of 1948. That suit was filed to recover from the defendants a sum of Rs. 3981/13/3 being the damages for breach of three contracts entered into by the defendants with the plaintiff. Under one of the contracts, the defendants agreed to sell 175 bales of gunnies quality 40" x 28" Chittavalasa or Nellimerla plain pucca rope bound, each bale containing 400 gunnies to be delivered by the defendants to the plaintiff before the end of December, 1947, the price being payable against delivery. The plaintiff alleged that he was ready and willing to pay the defendants the contract rate but that the defendants committed default.

23. The defendants pleaded, inter alia, that they were always ready, and willing to do their part of the contract but the plaintiff committed breach and that the contracts were void under the Jute Price Control Order.

24. The learned Subordinate Judge and, appeal, the learned District Judge held that defendants committed breach of contract a(sic) that the suit contracts were not affected or r(sic)dered illegal by the Jute Price Control Order, the result, they gave a decree as prayed for. (sic) defendants preferred this Second Appeal against the decree of the learned District Judge.

25. Appeal No. 910 of 1953 arises out of O.S. No. 129 of 1952 on the file of the Court of Subordinate Judge, Vijayawada. The suit filed for recovery of a sum of Rs. 11,104/11/- being the amount alleged to have been paid to the defendant in excess of the price payable under contracts and also Rs. 3,553/8/- being the tote on the said amount at 6 per cent., per an(sic) from 1-3-1947 up to the date of the suit.

26. The case of the plaintiff is that defendant entered into a contract dated 1-3-(sic) with him agreeing to sell 75 bales of gunny (sic) of the description D.W. flours 40" x 28" H at the then prevailing market rate of Rs. 94 per 100 gunnies, that in performance of the contract the plaintiff had paid a sum of 28,209/6/- to the defendant when he received goods, that, when the contract was entered and when he paid the amount to the defendant the Jute Price Control Order 1944 was in for that the price payable under that Order was 57/-/3 for 100 gunnies and that on that basic should have paid only Rs. 17,104/11/- to the defendant but that, in ignorance of the said control Order, he paid a large amount in exce(sic) that payable to the defendant. The suit therefore, filed for recovery of the difference interest thereon on the basis of a mistake in (sic)ment.

27. The defendant, inter alia, pleaded the said Control Order ceased to be in for(sic) the time the contract was entered into and, therefore, it did not affect the suit contract, that plaintiff had no cause of action and that, in event, the suit was barred by limitation.

28. The learned Subordinate Judge held the suit contract was hit at by the Jute Control Order, that as the parties entered the contract without knowledge of the exis(sic) of the Control Order, the plaintiff was entitle recover the amount paid by him in excess (sic) price payable under the Control Order and the suit was not barred by limitation under 96 of the Limitation Act. In the result, he a decree as prayed for. The defendant pre(sic) the above appeal against the decree of the (sic)ed Subordinate Judge.

29. By consent of parties, all the a were heard together as some of the question (sic)ed in the appeals are common to all or so them. We shall, therefore, consider the co(sic) question first and then proceed to consider questions that arise in each of the appeals.

30. The main question in the appe(sic) whether the contracts were void by reason Jute Price Control Order, 1944 (hereinafter (sic)red to as the Order) and the provisions Madras Essential Articles Control and Requiring (Temporary Powers) Act, 1946 (here referred to as the Act). To appreciate the (sic)ments of the learned Counsel, it will be ne(sic) to read the relevant provisions of the said and the Act.

Section 1 (4) of the Defence of India Act: It shall be in force during the continuance the present War and for a period of six months thereafter.

Clause 4 (3) of the Jute Price Control Order: No person shall sell or offer to sell and no person shall buy or offer to buy any manufactured Jute goods of the description given in the (sic)cond schedule to this Order at more than the (sic)ximum price determined as follows:

1. Where the goods are sold wholesale other-(sic)e than for export and by a person other than (sic) manufacturer, the maximum price shall be (sic) export price plus two and half per cent., thereof plus such transport and other incidental (sic)arges, including octroi as a whole-sale dealer in (SIC) locality would normally have incurred in ob(sic)ning the goods from the manufacturer.

Schedule II Double Warps:

E. Bags. 40" x 28" hd. 1 3/4 1b. D. W. Salts. 45 x 26" hd. 1 3/4 1b. Light Cess. 40 x 28" hd. 2 1b. Heavy Cess. 40 x 28" hd. 2 1/4 1b. Flours. 56 x 28" hd. 2 1/2 1b. Cements. 29 x 20" hd. on sell 20 oz. The Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1946.

(sic)AMBLE:

Whereas it is expedient to provide for the (sic)cinuance during a limited period of powers control the production, supply, distribution, (sic)sport and prices of essential articles and trade commerce therein and requisitioning of pro(sic)y, it is hereby, enacted as follows: ******

section 2 (a):

"Essential Article" means any of the articles (sic)h is specified in the schedule to this Act any other article which may be declared by Provincial Government by notified order to (sic)n essential article.

section 3 (1):

The Provincial Government, so far as it ap(sic)s to them to be necessary or expedient for obtaining, increasing or securing supplies essential articles or for arranging for their able distribution and availability at fair (sic)s or for directing, maintaining or increasing production of any essential article, may, by (sic)ed order, provide for regulating or prohi(sic)g the production, supply, distribution and (sic)port of essential articles and trade and com(sic)e therein.

2. Without prejudice to the generality of the (sic)s conferred by sub-s. 1, an order made therefore may provide.

XX XX XX XX

(b) for controlling the prices at which any (sic)cial article may be bought or sold.

Section 4:

(1) If, in the opinion of the Provincial Government, it is necessary or expedient so to do for obtaining, increasing or securing supplies of essential article or for arranging for its able distribution and availability at fair pri(sic) for directing, maintaining or increasing the action of any essential article, the Provincial (sic)nment may, by order in writing, requisition property, moveable or immoveable, and may such further orders as appear to them to necessary or expedient in connection with such (sic)tioning.

Section 8:

(1) The Provincial Government may, by notified order, authorise any officer or authority sub-ordinate to the Provincial Government to exercise any one or more of the powers vested in them by or under this Act except the power mentioned in S. 19, in relation to such matters and subject to such restrictions and conditions, if any, as may be specified in the order.

Section 9:

(1) Every order made by the Provincial Government or the Central Government or any other competent authority under any of the provisions of the Defence of India Rules in respect of any of the matters specified in Ss. 3, 4 and 7 which having been notified in the Official Gazette was in force immediately before the commencement of this Act shall, in so far as it could validly have been made by the Provincial Government under this Act, continue in force as if it has been made by the Provincial Government under the provisions of this Act and remain until it is superseded or modified by the competent authority under the provisions of this Act....

Notification issued by the Government of Madras dated 26th November, 1946.

Declaration of gunnies as an essential article and delegation of powers to certain officers, G. O. Ms. No. 1003 Food, 15th November, 1946.

Under S. 2 (a) of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1946, Madras Act XIV of 1946, His Excellency the Governor of Madras hereby declares gunny bags to be essential articles.

In exercise of the powers conferred by S. 8 (1) of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1946, (Madras Act XIV of 1946) His Excellency the Governor of Madras hereby authorises District Collectors and District Supply Officers to exercise within their respective Jurisdictions, the powers under S. 4 of the said Act, in respect of gunny bags.

31. The aforesaid provisions may be summarised thus: According to S. 1 (4) of the Defence of India Act, it was to be in force for six months after the termination of the War. In April 1944, the Central Government, in exercise of the powers conferred on them by the Defence of India Rules, passed the Jute Price Control Order where under no person shall sell or buy manufactured jute goods of the description mentioned in the second schedule annexed to it for a price higher than that prescribed thereunder.

Under the India-Burma Hostilities Termination Order, tile War came to an end on 1-4-1946, and, therefore, the Act lapsed on 30-9-1946. The Madras Legislature with a view to continue during a limited period the powers to control the production, supply, distribution, transport and prices of essential articles and trade and commerce therein and requisitioning of property passed Madras Act XTV of 1946.

Under that Act, the Provincial Government had power, inter alia, to make an order to provide for controlling the prices at which any essential article might be bought or sold and the essential articles it could so control were specified in the schedule annexed to the Act and Jute goods were not included in the schedule with the result that as the Act stood, tile Provincial Government had no power to regulate the price of jute goods.

But the definition of essential article enabled the Government to declare by a notified order any other article not so mentioned in the schedule as an essential article and if such a declaration was made, the provisions of the Act were attracted to that article, enabling the Government to regulate its price. S. 4 of the Act gave additional power to the Government to requisition any property moveable or immoveable or to make such further orders as appear to them necessary or expedient in connection with such requisitioning for carrying out the objects of the Act, more particularly described in that section.

Section 8 (1) authorised any officer or authority subordinate to it to exercise any one or more of the powers vested in them by or under the Act. On 26-11-1946, the Government issued a Notification declaring gunny bags to be essential articles and authorising District Collectors and District Supply Officers to exercise within their respective jurisdictions powers under S. 4 of the Act. i.e., the power of requisitioning any property moveable or immoveable or to make such further order as appear to them to be necessary or expedient in connection with such requisitioning. The orders made by District Collectors if any relevant to the enquiry have not been placed before us.

32. Mr. Triyambakam, learned Counsel appearing for the defendants in all the appeals except Appeal No. 910 of 1953, argues that the Jute Price Control Order made by the Government in April, 1944 continued to be in force under S. 9 (1) of the Act notwithstanding the fact that the said article was omitted in the schedule to the Act while Mr. Ramachandra Rao and Mr. Somasundaram appearing for the plaintiff in all the appeals except Appeal No. 910 of 1953 contend that on the expiry of the life of the Defence of India Act, the Order lapsed with it & as the Act did not continue the control over jute articles and indeed omitted them from the schedule, it should be held that it was neither continued nor subsequently revived under the provisions of the Act.

33. It is a well-settled principle that when a bye-law is made under an Act the repeal of the Act abrogates the bye-law unless the bye law is preserved by the repealing Act. See Watson v. Winch, (1916) 1 KB 688 (A) and Maxwell on the Interpretation of Statutes, Tenth Edition, page 406): The same principle should apply to the case of an order made under an Act which has lapsed by efflux of time.

The said proposition is not questioned but it is contended that the Order was preserved after the life of the Defence of India Act had expired by the provisions of S. 9 (1) of the Act. Under S. 9(1), only such of the pre-existing orders, which could validly have been made by the Provincial Government under the Act continued in force after the Act as it had been made by the Provincial Government under the Act.

The argument is that the Provincial Government had power to make the Order under the Act and if they had chosen to do so, they could have declared by notified order gunny bags to be essential articles within the meaning of S. 2 (a) of the Act and thereafter made an order under S. 3 (2) (b) of the Act controlling their price. This argument, though attractive, in our view is not sound. Section 9 (1) is in the nature of a transitory provision. It was enacted to provide a continuity for the orders that could be made under the Act.

The pre-existing order immediately in force before the commencement of the Act would be treated under the express terms of the Section "as if it had been made by the Provincial Government under the provisions of this Act," provided the Provincial Government could ma such an order validly under the Act. All other orders beyond the scope of the power confer on the Provincial Government at the commandment of the Act lapsed as there was no reason necessity for continuing them.

This legislative procedure prevented a hia and avoided the unnecessary remaking and publishing of pre-existing orders under the provisions of the Act. If the legislature intended continue the regulating power of the Province respect of gunnies, it would have in clear te(sic) added the said commodily to the schedule. Therefore the clause "in so far as it would val(sic) have been made by the Provincial Government under this Act" must in the context be confi(sic) only to the power of the Provincial Government to control and regulate the production, sup distribution, transport and the prices of essential articles, which it possessed at the commencement of the Act.

The phrase "under this Act", on which s(sic) emphasis is laid, does not only comprehend possible enhancement of the Governments jurisdiction in future but also circumscribes the lie of its power to make an order at the commencement of the Act. The fact that, in exercise delegated power involved in the definition essential article under S. 2 (a) of the Act Provincial Government could in future enlarge power to enable it to regulate the price of g(sic) bags is not of any relevance for we are only (sic)cerned with its power at the commencement the Act.

34. Nor can we agree with the argu(sic) that the subsequent addition to the schedule retrospectively continued the legal force of the existing Order. As we have indicated the order date is the date of the commencement of Act. On that date, such of the orders, w(sic) could be made under the Act, were continue if they were made under the Act, and the o(sic) automatically lapsed.

Thereafter, there is no question of resus (sic)ing a dead order. The subsequent inclusion new article in the schedule could only emp(sic) the Government to make an order under regulating the production, supply, distribute and price of that article. The transitory (sic)sion cannot be given permanent operative in the scheme of the Act so as to revive (sic) orders and impart to them fictional conti(sic) affecting the validity of the contracts and of commodities not included in the schedule the time they were effected.

If the argument be accepted, it would (sic)duce confusion in the market for, the con in respect of any commodity could be retr(sic)tively made invalid by the Provincial Government by adding that article to the schedule later stage. Such a construction need not be on the provisions of S. 9 except for comp(sic) reasons which we do not find in this case.

35. It may be convenient at this state consider the scope of the order of the Government made on 26-11-1946. It is made up (sic) parts. Under the first part it declared bags to be essential articles under S. 2 (a) Act. The second part of the order authorized District Collectors and District Supply (sic) to exercise in their respective jurisdictions under S. 4 of the said Act in respect of gunny bags.

No order purporting to have been made by the Government exercising these powers of regulation and control of the said commodity lias been placed before us. S. 3 conferred on the Provincial Government power to control the production, supply, distribution, transport and price of essential articles. S. 4 (1) enabled the Government, for the purpose of the Act, by order to writing to requisition any property moveable or immoveable and make such further orders as appear to them to be necessary and expedient in connection with such requisitioning.

Section 8 enabled the Provincial Government by notified order to authorise any officer or authority subordinate to it to exercise any one or more of the powers vested to them by or under the Act. By the aforesaid notification, the Government delegated to Collectors and District Supply Officers the power to requisition under S. 4 and it did not purport to confer upon them any powers of control under S. 8.

The said order, therefore, even from the date (sic)f its promulgation did not enable Collectors to exercise the powers of Government under S. 3 of the Act.

36. Some of the decisions cited at the Bar may now be noticed. The question now raised was considered by Mack J., to C. R. P. No. 1899 of 1950 (Mad) (B) (not reported). There the question arose whether the sale of jute after the Government issued the notification declaring it to (sic) an essential article was hit at by the pre-existing order of the Central Government fixing (sic)s price. The view of the learned Judge is thought out by the following passage to the Judgment:

It is quite clear from S. 9 that continuity was (sic)ven to the operation of the old control orders (sic) regards essential articles coming within the (sic)eaning of Act XIV of 1946. In the present case the contract was entered into by both parties several (sic)onths after the gunny bags were declared by notification as essential article under Act XIV of 1946.

The correct legal position is that once that notification was made, the previous control price (sic)jute began to operate and continued until it is varied by notification by competent authority.

(sic)te view of the learned Judge therefore is that whenever the Government added a new article to (sic)e schedule, though it may be long after the Act (sic)me into force, any pre-existing order made by (sic) Central Government regulating its price would attracted. The learned Judge, though he notic(sic) the argument of the learned Counsel to the (sic)trary, did not give any acceptable reason for conclusion. We have already given our reasons not accepting that view.

Raghava Rao, J.

37. In another unreported judgment in C. R. P. No. 1294 of 1950 (Mad) (C), (sic)me to the contrary conclusion. The learned judge observed:

Assuming that the Jute Price Control Order 4 itself fixed the price at a certain rate the prohibition of a bargain at the highest rate con(sic)ed in that order cannot be held to operate between the parties to the present action because jute (sic) not one of the articles specified in the schedule to the Madras Act; and on the date on which Madras Act came into force, the Central Order 1944 had ceased to be in force and till the in(sic)sion of the article of jute to the schedule to 1958 Andh. Pra. D.F. 128 the Madras Act on 26-11-46 there was no power which could be said to have been available to the Provincial Government to make any notified order to respect of the price of Jute.

So, says the learned Counsel for the petitioner, the mere fact of the inclusion of Jute amongst the articles specified in the schedule to the Act on 26-11-46 cannot be said to have effect of keeping the notified order of the Centre in regard to jute in force so as to invalidate the bargain between the parties under the suit contract dated 9-7-1949 by force of the language employed by the Madras Legislature in S. 9.

The learned Judge accepted the said argument in preference to the contention advanced by the other side. For the reasons already given by us, we prefer the view of Raghava Rao J., to that of Mack J. We hold that the Order was not preserved under the provisions of the Act and therefore, it lapsed at the commencement of the Act and that the subsequent inclusion of gunny bags in the schedule did not revive the said Order.

38. It is also contended by the learned Counsel for the plaintiff that gunny bags, which are the subject of the suits are not one of the articles mentioned in Schedule II of the Jute Price Control Order, 1944. On this question, the learned Subordinate Judges to this batch of appeals had expressed conflicting views.

We have already extracted the relevant schedule. The general heading of the schedule for all the varieties is given as double warps and one of the items is described as Flours 56"x28" hd 2 1/2 1b. Prima facie, therefore, the general heading should apply to all the articles described in the schedule and if so read, the item to question would be D.W. flours.

Under the contracts, the defendants agreed to sell varying quantities of bales of Chittavalasa or Nellimerla 40" x 28" hd. D. W. plain pucca rope bound gunnies, each bale consisting of 406 gunnies at a particular rate. The description to the contracts is, therefore, D. W. bales of Chittavalasa or Nellimerla hd. Therefore, though the goods were described as D. Ws. to the contracts, the word flours was not found to any of the contracts.

It may be mentioned at the outset that, though in the written statement it was pleaded that the contracts were void for the reason that they were effected contrary to the provisions of the Jute Price Control Order, no rejoinder was filed alleging that the goods in question were not covered by the said order.

(In Appeal No. 283 of 1951, his Lordship held that the subject-matter of the contract was only D. W. Flours. His Lordship continued:) Appeals Nos. 704 of 1951 & 392 of 1952:

(39-42). In these two appeals the contracts were also sought to be avoided on the ground that they were wagering contracts. In Carlill v. Carbolic Smoke Ball Co., 1892-2 QB 484 (D), a wagering contract has been defined as

one by which two persons, professing to hold opposite views touching the issue of future uncertain event, mutually agree that dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him a certain sum of money or other stake, neither of the contracting parties having any other interest in that contract than the sum or stake he will so win or lose, here being no other real consideration for the making of such contract by either of the parties.

Whether a given contract comes under the aforesaid definition depends upon the facts of the case. It is also well settled that a contract cannot be held to be a wagering contract without proof of the fact that the common intention of the parties at its inception was only to deal in differences and in no circumstances to call for or give delivery.

See AIR 1938 825 (Lahore) ;V Manubhai Premanund Vs. Keshavji Ramdas, & AIR 1926 119 (Privy Council) Learned Counsel appearing for all the parties accept the aforesaid legal position. Learned Counsel for the defendants argued that, on the facts, such an intention on the part of the contracting parties not to call for and give delivery should be inferred.

43. The contracts in A. S. No. 704 of 1951 are marked as Exs. A-1 and A-2. In Ex. A-1 against the heading place of delivery, the entry is "F. O. R Vizianagaram or F. O. R. Nellimerla Mill-siding, against the heading "time of delivery" the entry is "1947, May, June, monthly two hundred bales only", and against the heading "terms of payment", the entry is "against delivery order". The contracts, therefore, ex facie show that delivery of goods against payment is contemplated. P.W. 1, the plaintiff, deposes that delivery of goods was contemplated between the parties and indeed delivery was effected under similar contracts marked as Exs. A-8, A-12, A-16, A-19, A-20 and A-21. D.W. 2, the manager of the defendant-firm, though says in chief-examination that when they entered into the contracts there was no intention to deliver, admits in cross-examination that, in regard to Exs. A-13 to A-15, deliveries were effected. It is true and the plaintiff also admits that only differences were entered in the books.

The mere fact that, on settlement of some contracts, the differences were entered in the books does not establish that it was the intention of the parties not to call for and give delivery. On the aforesaid evidence, it is obvious, that, though in some cases the contracts were settled and the differences were received or paid by one or other of the parties, there is no intention that, under no circumstances, delivery of the goods should be demanded or given. We, therefore, hold that it has not been established that the said two contracts were in the nature of wagering contracts.

44. Similar argument is advanced in the case of Ex. A-1 the suit contract which is the subject-matter of appeal No. 392 of 1952. The relevant clause in Ex. A-1 reads:

The buyers must inform the sellers by writing on or before 25th of each month of this contract that they will demand the bales of this contract. If the buyers fail to inform accordingly, the bales of each month of this contract will be cancelled at par.

(On consideration of the evidence his Lordship held that the contract was not a wagering contract and continued):

Appeals Nos. 701 of 1951 and 832 of 1952:

45. The first item in this appeal relates to the claim of the plaintiff to a sum of Rs. 1695/8/- alleged to be the amount due on katha dealings by the defendants with the plaintiff. The learned Judge, as we have already stated, held that the plaintiffs accounts were true and correct but that the debt entry of Rs. 3300/- was a slip and on the basis gave a decree for Rs. 93/3/6.

The plaintiffs case is that this amount of Rs. 3300/- was paid to the firm of Alapati Rama murthi and Gelli Krishnamurthi and not to the 1st defendant firm and that the plaintiff came to discover the mistake subsequently whereupon he made corrections in the accounts. The defendants version, on the other hand, is that the credit item of Rs. 3300/- represents the amount that was actually paid to the defendant-firm and that the plaintiff failed to appropriate the sub sequent payments made by the 1st defendant-firm towards that amount.

Both the parties agreed that the dispute in regard to this item need not be decided in this case but may be reserved for decision in Appeal No. 523 of 1952 on the file of this Court and w(sic) accordingly do so.

46. The next dispute relates to three contracts, one dated 1-11-1946 and the other two dated 20-1-1946. In respect of the first contract dated 1-11-1946, the defendants contention is that the plaintiff never made any demand for deliver of the goods as he was not at the time able (sic) pay for the bales and take delivery, whereas the plaintiffs version is that the defendants refuse to deliver the gunny bags though the plaintiff demanded the same in person and through mediators. The question is which version is true.

(His Lordship discussed the evidence and co included).

(47-53). On a consideration, therefore, of the entire evidence, we agree with the learned Sub ordinate Judge that the plaintiff has established that he was ready and willing to perform (sic) part of the contract and that the defendants refused to give delivery and thereby commit breach of the contract.

54. It is then contended that the learn Judge went wrong in fixing the date 28-11-19(sic) as the crucial date for ascertaining the damage and that the breach must be deemed to had been committed on the date of the contract self, namely, 1-11-1946. In support of this contention, reliance is placed upon the judgment the Madras High Court in Muniswamy Chetty & Co. Firm v. Muniswami Chetty and Co., Fir ILR 1945 Mad 180 : B. Muniswami Chetty and Co., firm Vs. D. Muniswami Chetty and Co., firm, and AIR 1932 196 (Privy Council)

It was laid down in those decisions that the market rate prevailing on the date of delivery fixed in the contract should afford the basis ascertaining the damages. The correctness of aforesaid proposition of law is not disputed by learned Counsel for the plaintiff. But the learned Counsel argues that this point was not raised before the learned Judge, and that apart, the (sic) respondence establishes that the contract was tended upto 28-11-1946 and, therefore, the Ju(sic) was not wrong in adopting that date for fix the damages.

In the plaint, after giving the particulars the correspondence that passed between the (sic)ties the plaintiff alleged that he was entitled get damages being the difference between market rate on 28-11-1946, and the contract (sic). In the written statement, the defendants, the they stated that the price of goods did not to any extent whatever, did not question the that, if the defendants committed breach, 2 1946 should not be the date for ascertaining differences.

Indeed, the judgment of the learned Subordinate Judge also discloses that no such argument was advanced. In the circumstances, we are not justified in allowing the defendants to raise the question for the first time before us. That apart, (sic)ye are also satisfied on the evidence that the parties agreed for extension of time for the performance of the contract, for we find that, as (sic)ate as 27-11-1946. the defendants informed the plaintiff that they were willing to give delivery, though in Ex. A-22 the offer was made without rejudice in case the plaintiff should go to court.

In Ex. A-20 dated 20-11-1946, they offered to give delivery without any such qualification. We have believed the evidence of the plaintiffs witnesses, which clearly shows that there was no unequivocal refusal to perform their part of the contract but that the defendants postponed delivery on some pretext or other. On the facts, can safely be held that both the parties did not consider 1-11-1946 as the date of delivery and that (sic)e defendants finally refused to deliver only on 20-11-1946. We, therefore, hold that there was ex-pension of time of delivery by mutual consent. R. P. No. 1862 of 1951:

55. In S. C. S. No. 132 of 1950, one of the contentions of the plaintiff, apart from the general contentions, was that the suit hundi was not (sic)nected at all with the transactions affected the Jute Price Control Order. The hundi in (sic)estion is Ex. B-16 dated 8-9-1947. It was drawn the defendants in favour of Polisetti Narayana (sic) of Eluru on the plaintiff.

Ex. A-37 is the endorsement on the hundi (sic)de by Narayana Rao in favour of the plaintiff, the plaintiffs accounts a credit and a corresponding debit entries were made. Neither the (sic)di nor the endorsement ex facie connects it (SIC) the Jute contracts. P. W. 1, in his evidence, (sic)rly says that the said hundi had nothing to with Ex. B-5 dated 14-3-1947, the contract No. (sic) entered into between the defendants and the plaintiff.

On this evidence, the learned Judge found the suit amount has nothing to do with the contracts entered into between the plaintiff and defendants which are hit at by the Jute Price (sic)rol Order. In this state of evidence, we not hold that the defendants have established (sic)ny integral connection between the suit hundi the jute contracts between the plaintiff and defendants. The question is really one of and it is not permissible to be reopened in (sic)on.

(sic)d Appeal No. 5 of 1952:

56. In the suit, out of which this second (sic)al arises, the defendants case is that the plaintiff did not apply for delivery of goods and he was not ready and willing to perform his of the contract, and, therefore, he is not (sic)ed to recover any damages. The learned subordinate Judge held that the plaintiff sent (sic)ams demanding delivery of goods and that defendants were not in possession of delivery (sic) and, therefore, did not deliver the goods. (sic)e found that the plaintiff was in possession (sic)ly Rs. 30,000/- though under the contract (sic)d to pay Rs. 60,071/14/- and that he had (sic)ty to raise the required cash at a moments On anneal, the learned District Judge (sic) with him in holding that the plaintiff demands and that the defendants were not possession of delivery orders to comply with demand. But he neither considered nor has (sic)en a finding on the question whether the plaintiff was ready and willing to perform his part of the contract.

It is common case that, under the contracts payment had to be made against delivery and therefore, they consisted of reciprocal promises to be simultaneously performed. In respect of such contracts it is not disputed that, if the plaintiff was the buyer he must allege and prove that he was ready and willing to pay for the goods.

57. A Division Bench of the Madras High Court considered this question in G.K. Chengravelu Chetti and Sons. Vs. Akarapu Venkanna and Sons, There, the contract related to sale of goods whereunder the plaintiff agreed to buy 10 bales of yarn for a stated consideration and delivery had to be made between two definite dates. It was found, under the terms of the contract tract that the parties had agreed that the performance of their respective promises was to be simultaneous i.e., each should be ready and willing to perform his promise at one and the same time.

The next question that arose was whether the plaintiff was relieved of his obligation to assert and establish his readiness to perform his part of the contract as the defendants did not have the goods in their possession. Dealing with the said contention, the learned Judges observed at page 302 (of Mad LJ) : (at p. 972 of AIR):

Thus, where the contract relates to sale of goods, the plaintiff if he happens to be a buyer must allege and prove that he was ready and willing to pay for the goods and likewise if the seller be the plaintiff, he must allege and prove that he was ready and willing to deliver the goods. The plaintiffs in this case having themselves committed default cannot take advantage of what is said to be a default on the part of the defendants.

The learned Judges also rejected the other contention, namely, that the defendants were not in a position to discharge their part of the obligation in the following words:

The mere fact that the defendants did not have the goods in their possession does not show that they were either unable or unwilling to perform the contract. If the price had been paid, it is not impossible that the defendants would have procured the goods and given delivery.

We are bound by this judgment. In the presents case, there is no evidence to show that the defendants repudiated the contracts. It cannot also be disputed that, though the defendants had no delivery orders at the time the demands were made on than, delivery orders were available in the market and, if the plaintiff had offered money, the defendants could have easily secured them from the open market.

In the circumstances, the plaintiff has to allege and establish that he was in possession of the entire money payable under the contracts. The learned District Judge missed this point and had not given any finding thereon. The learned Subordinate Judge found that the plaintiff was in possession of only Rs. 30.000/- in the bank. There is no evidence either oral or documentary to show that the plaintiff had any overdraft in any bank or that he was in a position to raise money otherwise at a moments notice.

The statement of the learned Subordinate Judge that the plaintiff was an influential trader and had the capacity to raise the required cash on a moments time is not based upon any evidence and none has been placed before us. Indeed, he has produced his ledger wherein an entry of Rs. 40,000/- is found at page 40. The learned Subordinate Judge found that the entry is Bogus and has been interpolated for the purpose of this (sic).

It the plaintiff was really a rich and influential man, who could have raised a large amount within a moments notice, he would not have gone to the length of manipulating his accounts to support his contention. He would have by other evidence established his credit in the market his ability to raise money. The record does not disclose any facts in regard to his property or his over-draft accounts in any bank. In the circumstances, we must hold that the plaintiff has not established that he was ready and willing to pay the large amount of Rs. 60,071/14/-and take delivery of the goods.

58. The defendants also raised the plea that the plaintiff did not make a demand for delivery of the goods as he should do under S. 35 of the Indian Sale of Goods Act. Under that section, apart from any express contract, the seller of goods is not bound to deliver them until the buyer applies for delivery. Under the contracts, the delivery of the goods had to be made before the end of December 1947.

The learned District Judge found that the plaintiff made demands for the delivery of the goods by telegrams and relied upon Exs. A-9, A-10, A-30 and A-21. Learned Counsel for the defendants contends that the documents do not establish that any demand was made before the date of delivery fixed in the contract, namely, 31-12-(sic) Ex. A-7 is the copy of the telegram sent an 31-12-1947 and Ex. A-8 is the postal receipt an respect of the said telegram. But it is said that Ex. A-7 has not been proved. Before the learned Subordinate Judge, no objection was taken as regards the proof of Ex. A-7. It is not permissible to raise that plea for the first time in Second Appeal. We, therefore. accept the finding that the plaintiff had made necessary demands before the due date. Appeal No. 910 of 1953:

59. In this appeal, apart from the general objection whether the contract was hit at by the (sic). It was argued that the suit for the recovery of the amount representing the difference in price between the control rate and that paid by the plaintiff to the defendant was not maintainable and that it was also barred by limitation. Learned counsel for the plaintiff argues that he could recover the suit amount under Ss. 65 and 72 of the Indian Contract Act. S. 65 reads:

When an agreement is discovered to be void (sic) when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

This section, so far as it is material to the question now raised, confers a right of restitution when a contract is discovered to be void. A party, who has received any advantage under such a contract, is bound to restore it to the (sic)ther. Both parties in the instant case were (sic)nd by the Court below to have entered into the contract that the defendants delivered the (sic)les gunny bags to the plaintiff and that the plaintiff paid the consideration therefor without knowledge of the said Order.

As the contract in derogation of the provisions of the control order was void, each of the parties was bound to restore the advantage received by him to the other. The plaintiff received the bags and disposed of them to third parties, and, therefore, he was not in a position to restore the goods received by him to the defendant. The contention advanced on behalf of the plaintiff is that despite the fact that the goods could not be restored in specie, as the defendant received the price calculated at a rate higher than the control rate, he received an advantage to the extent of the price representing the amount over and above the control price and, therefore, he had to disgorge the excess amount in favour of the plaintiff.

This argument, though it appears to be attractive, is not consistent with the well-understood doctrine of restitution. The limits of the doctrine is stated by Chitty on contracts, 20th edition, a page 543 thus:

The only remedy being in general rescission in cases of innocent misrepresentation, the la(sic) would not allow this to operate unless the parties could be restored to their original positions. There must be restitutio in integrum.

In similar circumstances, Rajamannar C.J. a(sic) Lakshmanprasad and Sons Vs. A. Achutan Nair, , applied the doctrine and non-suited the plaintiff. There, as her the parties entered into a contract for the purchase of a motor car at a price, which was four to be higher than the control rate. The suit w(sic) filed for recovery of the excess amount collect by the defendant. The learned Judges, following the opinion of the learned author, held that t(sic) suit was not maintainable. At page 663, the learned Judges observed :

The same legal position would follow e(sic) on the footing that the contract itself was ille(sic) as one in contravention of the provisions of (sic) control order. A sale for a price exceeding (sic) maximum price fixed by the Government (sic) certainly illegal. In fact, the appellants w(sic) liable to be punished for a contravention of order.

The respondent could on this ground h(sic) treated the contract as void and claimed the p(sic) which he had paid and returned the car...There must be restitutio in "integrum"

60. But the learned Counsel for the plaintiff contends that this judgment does not lay d(sic) the correct law and points out that the doct(sic) of restitution adopted in England is limited scope whereas that embodied in S. 65 of the (sic) tract Act is of wider amplitude and that in I restitution can be ordered in respect of the advantage derived by any party irrespective of the (sic)tion whether the parties could be restored their original position.

In support of this contention, reliance is (sic)ed upon the decision of the Judicial Committed Thakurain Harnath Kuar v. Indar Bhadur S(sic) ILR 45 All 179 : (AIR 1922 PC 403) (L). There next reversioner of an estate transferred hi(sic) pectancy. After the death of the last surv widow, the widow of the purchaser sued the dor for possession or, alternatively to recover purchase money with interest.

The Judicial Committee held that there no effectual transfer of the villages since the (sic)dor had only an expectancy but that under if the Indian Contract Act, the purchase (sic) was recoverable with interest from the date (sic) suit and that the period of limitation did not begin to run until the rights of the purchaser, were discovered to be unenforceable. This case directly falls within the four corners of 8. 65.

As the agreement was discovered to be void, the vendor became bound under that section to restore the advantage i.e. the price received by him. Both the parties were restored to their original position. There is nothing, which the purchaser could restore for no legal interest in the property was transferred to him. We do not see how this judgment supports the construction sought to be put by the plaintiffs learned counsel on the provisions of S. 65.

61. Nor would the decision in AIR 1948 56 (Privy Council) lend support to the said contention Under a contract made in 1938 the appellants, a firm in India, agreed to buy from German sellers certain machinery manufactured in Germany for a complete oil-refining and hydrogenating plant, payment to be made by stipulated instalments. A part of the machinery was delivered representing 9/10 of the total contract price and the vendors received a portion of the consideration.

As war broke out at that stage, the subsequent consignments never reached India and no further deliveries were made. On the outbreak of the War, the contracts became void within the meaning of S. 65 of the Contract Act. The respondent, as the Custodian of Enemy Property, instituted proceedings against the appellants claiming an amount representing the difference between the value of the machinery supplied less the (sic) paid by the appellants under the contract.

The appellants pleaded, inter alia, that such (sic)arts of the machinery as were delivered were (sic)alueless, except as scrap material, without the (sic)arts which remained to be delivered and that to (sic)ake use of the machinery delivered, they had been compelled to procure substitute parts at a heavy costs. The Privy Council held that, in the circumstances of the case, the respondent failed (sic) prove that the advantage which the appellants had received under the contract was of greater due than the amount the vendors received under (sic)e contract.

As the appellants were held not to have reived any advantage under the contract, no question of restoring the advantage under the contract arose in that case. The applicability of the doctrine of restitutio in integrum to the contract (sic)verned by S. 65 was neither raised nor decided that case. That doctrine is. of general application and underlies the provisions of S. 65.

The object of S. 65 is not to make a new contract between the parties when the contract entitled into between them has been discovered to avoid but only to restore the advantage receiv(sic) by one party thereunder to the other. Unless court can restore the parties to their original (sic)sition, having regard to the circumstances of (sic)h case, there is no scope for the application of (sic)65.

In the present case, the contract was performed by both parties and for aught we know (sic) plaintiff by selling the goods would have made (sic)ge profits owing to the fluctuations in prices, the circumstances, it is not possible to predicate (sic)t the defendants had obtained any advantage (sic)er the void contract and, therefore, he should (sic)tore it to the plaintiff.

62. Nor can we agree with the constitution that S. 72 of the Contract Act governs the (sic)tion. It reads:

A person to whom money has been paid (sic) anything delivered, by mistake or under co(sic) must repay or return it.

The Judicial Committee construed the pr(sic) of this section and laid down its scope in (sic) AIR 1949 297 (Privy Council) Lord Reid, who (sic) the judgment on behalf of the Board; stated the combined effect of Ss. 20, 21 and 72 of the Contract Act thus :

If a mistake of law has led to the for(sic) of a contract, S. 21 enacts that that contract in (sic) for that reason voidable. If money is paid under that contract, it cannot be said that (sic) was paid under mistake of law; it was paid because it was due under a valid contract and If it had not been paid payment could have been (sic)forced.

Payment by mistake in S. 72 musk refer to a payment which was not legally due and which could not have been enforced: the mistake is in thinking that the money paid was duo when in fact it was not due. There is nothing in(sic) in enacting on the one hand that if parties (sic) into a contract under mistake in law that (sic) must stand and is enforceable, but on the other hand, that if one party acting under mistake of law pays to another party money which in not (sic) by contract or otherwise that money must be repaid.

63. The aforesaid passage resolves the (sic)parent conflict between Ss. 21 and 72 of the Contract Act. In the present case, a mistake of law had led to the formation of the contract and (sic) the basis of the contract, the money was due to the defendants and was paid to them. The mistake, therefore, in the words of the Privy Counsel was not in the plaintiff thinking that the (sic) was due to the defendants when it was not (sic) under the contract.

The plaintiffs complaint is that the contract itself was bad because of the provisions of this Order. S. 72, therefore, cannot apply to the (sic) of the present case. Rajamannar, C.J. and (sic)sundaram, J., in the aforesaid decision in (S Lakshmanprasad and Sons Vs. A. Achutan Nair, came to the conclusion in respect of the applicability of S. 72 to the facts (sic) that case. The learned Judges observed;

The money was not paid by mistake. Is was paid as money rightly payable under the contract as it stood. The payment was not by mistake (sic) was the contract which was entered into on a (sic) taken assumption that the price was Rs. (sic) But the mistake occurred at the time of the (sic)mation of the contract.

Once the contract had come into existence there was no mistake made so far as the payment was concerned. What was paid was what was (sic) under the contract.

64. Learned counsel for the appellant subtends that in that case the mistake was one of fact and, therefore, the observations of the (sic)ed Judges should be understood to have been made on the basis of that mistake. It is true that (sic) that case, both the parties were under the (sic)sion that the price was fixed in accordance whice the controlled rate.

But it turned out, as a matter of fast that is was in excess of the control rate and therefore the mistake may be considered to be one of (sic)

But that cannot make any difference in view of the decision of the Judicial Committee in AIR 1949 297 (Privy Council) (N). In the Madras case, the contract was vitiated at the inception by a mistake of fact whereas, in the present case, the contract was void because of a mistake in law.

In either case, there was no mistake made so far as the payment was concerned. What was paid was what was due under the contract. The reasoning of the learned Judges, equally applies to the present case. We, therefore, hold that the plaintiff would not be entitled to recover the amount either under S. 65 or under S. 72 of the Contract Act. We have considered this question as it was argued but really this does not arise as we have held that the contract was not hit at by the order and was, therefore, valid.

65. In the result. Appeal Nos. 283 of 1951, 385 of 1952, 701 of 1951, 704 of 1951 and C. R. P. No. 1862 of 1951 are dismissed. Appeal Nos. 392 of 1952, 832 of 1952, 910 of 1953 and S. A. No. 5 of 1952 are allowed.