C.A. Vaidialingam, J.This, is an appeal by the plaintiff against the dismissal by the learned Subordinate Judge of Kozhikode, of his suit O. S. 38 of 1951 on the ground that the suit contract is void and not legally enforceable, in view of the provisions of the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order, 1944.

2. The plaintiff, who is a merchant carrying on business at Kozhikode, filed the suit against the defendant, a firm of merchants carry-Ing on business in Oilcakes at Madras, for recovery of a sum of Rs. 9,000/- as damages for breach of contract and for certain other reliefs.

3. The plaintiffs case was that on 5th December, 1950, the defendant entered into a contract with the plaintiff through a broker for the Supply of 200 tons of groundnut oilcake at 190/-per ton of 2240 Ibs. P. O. R. The delivery was to be in January and February 1951 at the rate of 100 tons each month and that the plaintiff is to supply necessary gunnies, 15 days before the despatch. The plaintiff further alleged that the contract was accepted by both parties and parties took further steps in fulfilment of the contract, but the defendant, without any Justification whatsoever purported to cancel the contract by his unilateral declaration and did not supply the goods and as such, committed breach of contract. According to the plaintiff, the defendant so committed a breach of contract, in view of the fact that prices had gone up considerably after the date of the contract. The plaintiff, on these allegations, claimed damages at Rs. 45/- per ton, though the market rate on the date of the breach was much higher.

4. The suit was resisted by the defendant on several grounds. Substantially, the defence was that the broker, who brought about the contract, had informed the defendant that the plaintiff was not agreeable to the terms of the contract and as such, the contract had been given the go by even by the plaintiff himself and in view of this, the defendant had cancelled the contract by writing to the plaintiff as early as 18-12-1950. Alternatively, the defendant pleaded that in any event, the plaintiff did not perform his part of contract namely, of supplying the gunny bags within time and as such, the plaintiff had committed a breach ot contract.

There was another short ground of defence mentioned in paragraph 21 of the written statement to the effect that the suit contract being a "Forward Contract in groundnut oilcake" is invalid and unenforceable. No further details as to this contention were given in the written statement. The defendant also in the end. contended that the damages claimed by the plaintiff were excessive. Here again, it must be stated, the defendant did not state as to what according to him, was the market rate during the relevant period.

5. The learned Subordinate Judge considered the various contentions of both the parties and came to the conclusion that the plaintiff had not revoked the suit contract and he fur- ther held that it was the defendant who committed a breach of contract.

6. On the question of damages, the learned Judge held that in the month of January 1951, the difference in price ranged between Rs. 43 to 44 and in the month of February 1951, the price ranged at about Rs. 42 per ton over and above the contract rates. In this view, the learned Judge reduced the claim of the plaintiff which was at Rs. 45/- per ton and held that the plaintiff would be entitled only to a sum of Rs. 8,500/-as damages. In this connection, it may also be stated that the learned Judge has observed that there is no dependable counter-evidence regarding the price given by the plaintiff, on the side of the defendant.

7. On the question of the illegality or void nature of the contract, as contended by the defendant, the learned Judge, after a reference to the various statutes having a bearing on this matter, came to the conclusion that the contract was hit by the provisions of the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order 1944. According to the learned Judge though this Order should have normally expired on 30th September 1946, it has been kept alive by certain subsequent enactments of the Central and the State Governments. These enactments and the provisions therein will be considered in greater detail later in this Judgment.

8. In view of his finding against the plaintiff on this question of law, he dismissed the plaintiffs suit, though he had held in favour of the plaintiff on the question of breach and damages,

9. The learned Advocate-General appearing for the plaintiff-appellant contended that the finding of the learned Judge on this question of law is not correct. According to the learned Adovcate-General, the Order of 1944, so far as oilcakes were concerned, had ceased to have effect on the 30th September 1946, the date on which the Defence of India Rules expired. He further contended that none of the subsequent enactments has kept alive this portion of the Order of 1944.

He also referred to the amendments incorporated in Central Act XXIV of 1946 by Central Act LII of 1950 by which alone cattle fodder which will take in oilcakes, was specifically brought in. According to the learned Advocate-General, unless the Central Government had taken further steps under the provisions of Central Act XXIV of 1946 in consequence of the amendment by the 1950 Act, the contract entered into in oilcakes on 5-12-1950 is not in any way illegal or void as being in contravention of any Statute.

10. On the other hand, Mr. p. Sreenivasa Ayyengar, learned counsel for the defendant respondent contended that the Order of 1944 was kept alive by the Central Government Ordinance 18 of 1946 and also later on by the Central Act XXIV of 1946 which replaced the said Ordinance. The learnel counsel fully supported the reasoning and conclusion of the learned trial Judge on this point.

11. Mr. P. Sreenivasa Ayyengar also attacked that portion of the lower court judgment which was against him namely, the finding on the breach of contract by the defendant. On the other hand, the learned Advocate-General fully supported the finding of the learned Judge on this question of fact. This aspect of the matter will be considered by us after disposing of the question regarding the legality of the con tract.

12. Before discussing the question of the legality or otherwise of the contract, we may state that in the lower court, the defendant appears also to have contended that oilcakes must be deemed to be included in Food stuffs shown as one of the essential commodities under the Defence of India Rules and also included as an essential commodity in Section 2 of Ordinance 18 of 1946 and Section 2 of Central Act XXIV of 1946 and so, the ban imposed by the Order of 1944 must be deemed to continue, in so far as this kind of food-stuff is concerned. The learned Judge has not accepted this contention of the defendant and before us no such contention has been taken and therefore, it is unnecessary for us to consider whether oilcakes can be considered to come within the term Food-Stuffs.

13. To appreciate the respective contentions of the learned Advocate-General and Mr. p. Sreenivasa Ayyengar, it is necessary to note the enactments referred to and relied on by them,

14. There is no dispute that the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order 1944 was issued by the Central Government on 13th January 1944 and came into effect from 25th January of that year. The said order was issued by virtue of the powers conferred on the Central Government by Sub-rule 2 of Rule 81 of the Defence of India Rules. Clause 2 (1) of the said Order defines an article to which this Order applies as meaning any of the vegetable oils (whether raw, refined or solidified) or oilcakes specified in fee first column of the schedule to that Order. Sub-clause 3 of clause 2 again defines Forward Contract as a contract for a delivery at some future date of any article to which that Order applied. Clause 3 states :

"No person shall, after the specified date for any article to which this Order applies, enter into any forward contract in that article." There is no dispute that the specified date for the article to which that Order applied was 12th January 1944.

15. Clause 5 gave power to the Central Government by notification to exclude any contract or class of contracts from the provisions of that order. There is also no dispute that no such exclusion has been granted by the Central Government regarding oilcakes with which we are concerned. The schedule specified two main articles to which that Order applied. Item (1) was vegetable oils and that item had 8 sub-items dealing with 8 different types of oil. Item (2) dealt with oilcakes and that item also had 8 sub-items dealing with different types of cakes. Therefore, it is quite clear that oilcakes were brought within the prohibitions mentioned in the Order of 1944.

16. There is no dispute that the Defence of India Rules expired on 30th September 1946 and with that the several Orders issued under the Defence of India Rules should also have normally expired. Therefore, this Vegetable Oil and Oilcakes Order of 1944 should have also normally expired on 30th September 1946. We will have to consider whether this Order of 1944, so far as it relates to oilcakes, has been continued in force, or kept alive by the Ordinance 18 of 1946 which came into effect from 1st of October 1946.

17. The Central Government promulgated the Essential Supplies (Temporary Powers) Ordinance 1946, Ordinance No. 18 of 1946 -- and u/s 1 (3), the Ordinance came into force on the 1st day of October 1946, that is the next day after the Defence of India Rules expired. The preamble to the Ordinance states that it was necessary to provide for continuation during a limited period of two years to control the production, supply and distribution of, and trade and commerce in food stuffs (including edible oilseeds and oils) and certain other commodities mentioned therein.

Section 2 (a) defined an Essential commodity as meaning any of the classes of commodities given therein as sub-items 1 to 8. Sub-item 1 of Clause (a) of section 2 mentioned food stuffs. According to Clause (c) of section 2 Food Stuffs shall include edible oilseeds and oils. It will be noted that oilcakes as such, have not been brought within the meaning of Essential Commodity in the Ordinance.

18. Clause (d) of Section 2 defined a Notified Order as an Order notified in the official Gazette.

19. Section 3 of the Ordinance gave power to the Central Government by Notified Order for providing, regulating or prohibiting, etc., regarding any Essential commodity. Clause 2 of Section 3 dealt with several provisions that could be made under the Order issued u/s 3 (1). Section 3 (2) deals with several matters and it is not necessary to go into them in any great detail. Section 5 provided for continuing in force of certain Orders. It runs as follows:

"Continuance in force of existing Orders--Until other provisions are made under this Ordinance, any order, whether notified or not, made by whatever authority under Rule 80-B, or Sub-rule (2) or Sub-rule (3) of Rule 81 of the Defence of India Rules, in respect of any matter specified in section 3 which was in force immediately before the commencement of this Ordinance shall, notwithstanding the expiration of the said rules, continue in force so far as consistent with the Ordinance and be deemed to be an order made u/s 3, and all appointments, made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance."

20. According to the learned Advocate General, the effect of Section 5 of the Ordinance is only to keep alive any such Order as mentioned in Section 3 which relates to an Essential Commodity within the meaning of section 2 of the Ordinance. If an article in respect of which any order contemplated u/s 3 had been already issued, does not come within the definition of an Essential commodity u/s 2 of the Ordinance, then such an Order will not come within the purview of the Ordinance and Section 5 has no application to such Orders.

Shortly, his argument is, that articles which are outside the purview of an essential commodity as defined under the Ordinance are not dealt with under the Ordinance and all Orders issued under the Defence of India Rules in respect of those articles automatically ceased to have effect with effect from 1st October 1946. On the other hand, Mr. Sreenivasa Ayyengar very vehemently contends that the 1944 Order dealing with vegetable oil and oilcakes is one in respect of any matter specified in Section 3 and which was in force immediately before the commencement of this Ordinance, and according to him, that Order will continue to be in force notwithstanding the expiration of the Defence of India Rules.

21. A close examination of the Ordinance No. 18 of 1946 will establish that the learned Advocate-General is very well founded in his argument that the Order of 1944 regarding oilcakes is not kept alive by section 5 of the Ordinance. We are not able to accept the construction placed on section 5 of the Ordinance by Mr. Srinivasa Ayyengar.

22. The preamble to the Ordinance clearly shows that the power taken was to control the production, supply and distribution etc., of food stuffs and certain other articles mentioned therein. Section 2 defines what an essential commodity is. It does not contain oilcakes. Section 3 (1) runs as follows:

"Powers to control production, supply, distribution, etc., of essential commodity:-- (1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein."

It will be seen that Clause 1 of Section 3 extracted above again relates only to an essential commodity or for their equitable distribution etc. Further, the notified order is to provide for regulating or prohibiting the production, supply and distribution there of, and trade and commerce therein. The words thereof and therein again must relate only to an essential commodity.

Therefore, the entire power to act u/s 3 is only regarding an essential commodity which in turn, has been defined u/s 2 of the Ordinance. The various matters mentioned in Clauses (a) to (j) of Sub-section 2 of Section 3 can only relate to an essential commodity as defined in the Ordinance. Further Section 5 in dealing with what are the orders to be deemed to be an order u/s 3, itself says:

"Notwithstanding the expiration of the said rules, continue in force so far as consistent with the Ordinance and be deemed to be an order made u/s 3."

Therefore, any order to be continued must be an order relating to an essential commodity defined in Section 2. It is only such orders which relate to any of the items mentioned in Section 2 that will be consistent with the Ordinance. All other orders regarding articles not covered by Section 2 will be orders inconsistent with the Ordinance. This is quite understandable, as the Ordinance specifically provided only for controlling the essential commodities defined u/s 2.

Therefore, in our view, the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order 1944 i,s not continued or kept in force by virtue of Section 5 of the Central Ordinance No. 18 of 1946, so far as oilcakes are concerned.

23. Then the question arises, whether the Essential Supplies (Temporary Powers) Act 1946 -- Central Act XXIV of 1946 which replaced the Ordinance, has made any difference in this matter. The Act XXIV of 1946 came into force on 19-11-1946. The preamble of the Act was exactly the same as that of the Ordinance namely, to control the production, supply etc., in food stuffs (including edible oilseeds and oils) and the other commodities mentioned therein.

24. Section 2 defines an Essential commodity in the same way as the Ordinance did. Food stuffs mentioned as item (1) of Sub-section (a) of Section 2 included edible oilseeds and oils. Section 3 again gave power to the Central Government for regulating etc., by notified order the several matters stated therein. Section 7 provided for penalties lor contravening an order made u/s 3. Section 17, Clause (1) repealed the Essential Supplies (Temporary Powers) Ordinance 1946. As Mr. Srinivasa Ayyengar has very strongly relied upon the provisions of Section 17 of the Act it is desirable to quote the same.

"17(1) The Essential Supplies (Temporary Powers) Ordinance, 1946 is hereby repealed.

(2) Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act; and all appointments, made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act.

(3) For the removal of doubts it is hereby declared-

(a) that for the purposes of the said Ordinance and this Act an order of the nature referred to in Section 5 of the said Ordinance made before the commencement of the said Ordinance and not previously rescinded shell be deemed to be, and always to have been, an order in force immediately before such commencement, notwithstanding that such order or parts of it, may not then have been in operation, either at all or in particular areas;

(b) that for the purposes of this Act an order made or deemed to be made under the said Ordinance and not rescinded prior to the commencement of this Act shall be deemed to be an order in force immediately before the commencement of this Act, notwithstanding that such order, or parts of it, may not then be in operation, either at all or in particular areas."

According to Mr. Srinivasa Ayyengar, learned counsel for the respondents, Ss. 3 and 17 of Central Act XXIV of 1916 read together, have the effect of continuing in force the 1944 Order inasmuch as the said Order has not been expressly cancelled. We are not able to accept this contention.

25. Section 5 of Ordinance 18 of 1946, as already stated, kept in force certain orders issued under the Defence of India Rules, in so far as they were consistent with the Ordinance. We have fully examined the scope of Section 5 of the Ordinance earlier and also expressed our opinion as to what orders will be deemed to be an order made u/s 3 of the Ordinance. Therefore, Section 17 (2) will, not assist the respondent, because the 1944 Order, in so far as it relates to oilcakes, was not issued under the Ordinance or can be deemed to be one made under the Ordinance as contemplated u/s 5 of the Ordinance.

Further, in our view, as the order relating to oilcakes has ceased to have effect from 1st October 1946, it was not in force immediately before the commencement of the Central Act XXIV of 1946. Mr. Srinivasa Ayyengar further contended that though the provisions of the 1944 Order may not have been in operation regarding the oilcakes after 1-10-1946, still the order must be considered to be one which was not in operation in part on the date of Central Act XXIV of 1946. The said Order has not also been rescinded prior to the commencement of the Central Act XXIV of 1946.

Therefore, he contended that by virtue of Clauses (a) and (b) of Sub-section (3) of Section 17, this order must be one which is to be deemed to be and always to have been an order in force immediately before the commencement of Act XXIV of 1946. We are not able to appreciate this contention either. Sub-clause (a) of Clause 3 of Section 17 specifically refers to an order of the nature referred to in Section 5 of the Ordinance made before the commencement of the Ordinance and not previously rescinded.

Sub-clause (b) of the said sub-section further specifically refers to an Order made or deemed to be made under the Ordinance and not rescinded prior to the Act as one to be deemed to be an Order in force immediately before the commencement of the Act. As discussed earlier, Section 5 of the Ordinance has no application to the 1944 Order, in so far as it related to oilcakes and, therefore, Clause (a) will not apply. Similarly, Clause (b) also will not apply because the 1944 Order is not an order made under the Ordinance, or one deemed to be made under the said Ordinance, as contemplated u/s 5 of the Ordinance.

Section 17 (3) (a) applies only to an order in respect of an essential commodity covered by the said Ordinance and Section 17 (3) Cb) applies only to such orders made under the Ordinance or deemed to be made under the said Ordinance and not rescinded prior to the commencement of the Act. It has not been shown by Mr. Srinivasa Ayyengar under what item of Essential Commodity will the oilcake come under either the Ordinance or the Act of 1946, as it originally stood, prior to its amendment in 1950.

Therefore, in our view, Section 17 of the Act will not support Mr. Srinivasa Ayyengars contention and the said section read with Section 3 does not keep alive or continue in force the 1944 Order regarding oilcakes.

26. Then we come to the next enactment namely, The Essential Supplies (Temporary powers) Amendment Act 1950, Central Act No. LII of 1950. The said Act made certain amendments to Central Act XXIV of 1946. It came into force on 16-8-1950; Section 2 provides for the omission of the preamble to Act XXIV of 1946. The important provision made in the said Act was, relating to certain amendments in respect of Section 2 Of Act XXIV Of 1946.

As stated earlier, the original Section 2 of Act XXIV of 1946, did not take in oilcakes as one of the Essential commodity. Section 4 of Act LII of 1950 included in the original Section 2 another item as 1 (a) namely Cattle fodder. A Sub-clause (cc) was added to the original Section 2 as Cattle fodder includes, oilcakes and other concentrates. It is not necessary to refer to the other amendments provided by that Act of 1950.

27. It will be seen that by Section 4 of Act LII of 1950 the original Section 2 of the 1946 Act, which defined an essential commodity, included Cattle fodder also and cattle fodder was stated to include oilcakes and other concentrates. Cattle fodder, which includes oilcakes, which is the subject before us, was for the first time included as an essential article on 16-S-1950. Mr. Srinivasa Ayyengar contended that, at any rate, as oilcakes have been included with effect from 16-8-1950, the contract entered into in this case in oilcakes on 5-12-1950 is hit by the Order of 1944.

It is not possible for us to accept this contention either. The amendment is not stated to be retrospective and therefore, the amendment can take effect only from 16-8-1950. In that case, if the Central Government decides to exercise control u/s 3 of Act XXIV of 1946, then it can be only by a notified order as stated therein. Notified order means an order notified in the Official Gazette (see Section 2 (d) of Act XXIV of 1946).

Unless the Central Government has taken action as contemplated in the Act in respect of this article newly brought within the definition of Essential article, it is not affected by the provisions of that Act. Much less will it be affected by the Order of 1944, as it has ceased to have effect with effect from 1-10-1946 regarding oilcakes.

28. The learned Judge has placed very strong reliance on the amendment effected by Central Act LII of 1950 by which oilcakes and other concentrates were included in the essential commodity, cattle fodder in the original Section 2 of Central Act XXIV of 1946. According to the learned Judge, at any rate, from 16-8-1950, the Order of 1944, which was all along not in operation springs back to life from that date and therefore, the suit contract, which was executed on 5-12-1950, is affected by the 1944 Order. We are not able to accept this line of reasoning.

As stated earlier, the amendment is not stated to be retrospective and it is only prospective. Even hero, Section 17 of the 1946 Act cannot come into play, because this item of cattle fodder including oilcakes and other concentrates has not been shown as an Essential commodity in the Ordinance of 1946. Therefore, unless a special notified order is made controlling the same by virtue of the powers conferred on the Central Government under Central Act XXIV of 1946, the suit contract is not in any way opposed to any law, because there has been really no notified order regarding those commodities.

29. Though, no doubt, at any rate, after the passing of Central Act LII of 1950 on 16-8-1950, it would have been competent for the Central Government to re-issue the Order of 1944 relating to oilcakes, they have not done so. Therefore by the mere amendment of the 1946 Act by the 1950 Act, the Order of 1944 relating to oil-cakes will not spring back to life.

30. We may also refer to Central Act X of 1955 -- The Essential Commodities Act 1955 --where u/s 2, an Essential Commodity has been taken to include Cattle fodder including oilcakes and other concentrates.

31. Mr. Srinivasa Ayyengar referred to the Madras Acts XIV of 1946, XXIV of 1949 and XXVI of 1951 and according to him, manures mentioned in the said schedules will take in oilcakes also, it is not possible for us to accept this line of argument. When the Central Act LII of 1950 mentions Cattle fodder as including oilcakes, it is difficult for us to accept the contention that the Madras Acts when dealing with manures, intended to deal with cattle fodder including oilcakes.

32. Similarly, the reliance placed upon a notification dated 20-5-1952 issued by the Central Government directing certain amendments in the Vegetable Oil and Oilcakes (Forward Contracts Prohibition) Order 1944 do not, in our opinion, have any bearing on this point. It must be remembered that though oilcake was not dealt with by the original Act XXIV of 1946, it dealt with food stuffs and food stuffs included edible oilseeds and oils. The first item in the schedule of the 1944 Order dealt with Vegetable Oils.

Considered from this point of view, the notification does not throw any light on the point in issue so far as oilcake is concerned. We may also refer to entry 33 in List 3 of 7th schedule of the Constitution. Entry 33 (b) mentions food stuffs, including edible oilseeds and oils and entry 33 (c) refers to cattle fodder including oilcakes and other concentrates, Therefore, it will be seen that oilcake is being treated along with cattle fodder.

Mr. Srinivasa Ayyengar relied also on the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952 -- Central Act No. LII of 1952. Section 2 of the said Act stated that the goods specified in the schedule to the Act are declared to be essential for the life of the community and in the schedule item (12) mentioned "cattle foods". The argument of the learned counsel was that because cattle-food is treated as an essential commodity, oilcake, which is included in cattle fodder, must have been all along in the contemplation of the Legislature and therefore, the Order of 1944 must have been continued in force by the 1946 Ordinance and Act.

We are governed by the provisions of the Ordinance and the Act of 1946 prior to its amendment in 1950. Mr. Srinivasa Ayyengar, as stated earlier, could not lay his hands on any particular item enumerated in the Ordinance or the Act which could take in oilcakes. The fact that in 1952, the Legislature declared cattle foods as one essential for the life of the community, will not affect a contract entered into in 1950.

33. We may also refer to the decision of the Supreme Court reported in State of Bombay v. Virkumar Gulabchand Shah AIR 1952 SO 335 (A). Though the actual decision of their Lordships turned on the question whether turmeric is a food stuff within the meaning of Section 2 (a) of Central Act XXIV of 1946, still the test laid down by their Lordships is very helpful.

Though Mr. Srinivasa Ayyengar relied upon this judgment as an authority in his favour, we are not able to and in that judgment any support for the stand taken by Mr. Srinivasa Ayyengar. As stated earlier the question related to a decision as to whether turmeric was a food stuff. Their Lordships ultimately held that it was a food stuff within the meaning of Act XXIV of 1946 and as such, the orders issued under the Defence of India Rules were continued in force by virtue of Section 5 of the Ordinance and by Section 17 (2) of the Act.

This conclusion was arrived at by their Lordships, because of their view that the turmeric was a food stuff, though it was not specifically stated to be so. Cut the present case before us is entirely different. In this case, Mr. Srinivasa Ayyengar, as stated earlier, is not able to bring oilcakes within any of the items enumerated as essential commodities either in the Ordinance of 1946 Or the Act of 1946 as it stood prior to the amendment in 1950.

If that is so, oilcake does not come within the ambit of the Ordinance or the Act. In fact. In our view, the Central Government could have re-issued a notification regarding oilcakes either under the Ordinance or under the Act of 1946 prior to its amendment in 1950.

34. But their Lordships lay down a test to find out whether a particular order issued: under the Defence of India Rules is continued by the Ordinance and the Act of 1946. At page 339 Mr. Justice Bose with whom Mr. Justice Fazl Ali agreed, observed as follows;

"As I see it, the test here is whether the Order of 1944 would have been a good Order, had it been re-promulgated after the Ordinance of 1946. In our opinion, it would, and that it follows that it is saved by the saving clauses of the Ordinance and the Act. I have already set out Section 5 of the Ordinance. In my opinion, the order of 1944 falls within its purview and if it is saved: by that, it is equally saved by Section 17 (2) of the Act."

35. To a similar effect is the decision of the Bombay High Court of Bavdekar and Chainani JJ., in The State Vs. Agarwal, Ayengar and Co. Ltd., At page 403, para 12 runs as follows:

"The words used in both the Sub-sections (1) and (2) of Section 3 are also clear and unambiguous and empower the Central Government to issue orders only with regard to the commodities specified as essential commodities in the Act. The inference that the Legislature intended to confine the powers of the Central Government to essential commodities only and did not intend to authorize it to issue orders with regard to other commodities is also bonie out by the fact that the- Act was amended in 1849 in order to empower the Central Government to issue orders with regard to cotton.

I am, therefore, of the opinion that the Central Government was not competent to issue any order in regard to lickerin wire either under the Essential Supplies (Temporary Powers) Ordinance, 1946, or under the Essential Supplies (Temporary Powers) Act, 1946. These enactments continued in force only those orders issued under the Defence of India Rules which could be issued in exercise of the powers conferred by these enactments.

As in exercise of these powers the Central Government could not make any order in regard to lickerin wire, the Cotton Textiles (Raw Materials and Stores) Order, 1946 Issued under the Defence of India Rules did not continue in force after 30-9-1946, in so far as it related to lickerin wire."

36. At page 402 the learned Judges again have considered the effect of provisions of Section 3 of Central Act XXIV of 1946 and come to the conclusion that the words, thereof and therein have obviously referred to the words essential commodity used in the earlier part of the subsection. We respectfully adopt the test laid down by their Lordships of the Supreme Court and the learned Judges of the Bombay High Court.

37. Applying the test laid down by the Supreme Court and the principles laid down by the Bombay High Court, we are of opinion, that the Central Government could not have issued an order regarding oilcakes under the provisions of Central Act XXIV of 1946 till it was amended by Central Act LII of 1950. After the amendment by Central Act LII of 1950, we have already held that unless a notified order is issued by the Government, there will be no prohibitioa for dealing with the oilcakes.

38. For the reasons given above, we are not able to accept the conclusion arrived at by the learned Judge on this question. Accordingly, we differ from his findings on this point and we hold that the suit contract is not in any way affected by the provisions of the Vegetable Oils and Oilcakes (Forward Contracts Prohibition) Order of 1944 which, according to us, has ceased to have effect regarding oilcakes from 1-10-1946 and as such, we hold that the suit contract is enforceable by the plaintiff, if he is otherwise entitled to do so.

39. As stated earlier, the learned Judge has held in favour of the plaintiff on the question of breach. Mr. Srinivasa Ayyengar, appearing for the respondent, has contended that the finding of the learned Judge on this point is not correct. In our opinion, the learned Judge has very elaborately considered the documentary and oral evidence adduced on this point and has come to a correct conclusion that it was the defendant who has committed a breach of contract. As we are in entire agreement with the reasons and conclusions of the learned Judge on this point, we consider it unnecessary to very elaborately deal with the evidence.

As stated earlier, the contract was on 5-12-1950. The defendants contention is that the broker P, W. 1 informed them that the plaintiff is not willing to agree to the supply of gunny bags. The broker has been examined as P. W. 1 and the learned Judge has accepted his evidence in entirety. He has stated that he never informed the defendant about the inability of the plaintiff to supply the gunny bags.

On the other hand, he has definitely stated that the plaintiff has informed him that they are making the necessary arrangements for performing their part of the contract. We have no hesitation in accepting the evidence of P. W. 1 and holding that the case of the defendant in this respect is not true.

40. The further contention of Mr. Srinivasa Ayyengar is that the defendant has already cancelled the contract by sending Ext. B5 as early as 18-12-1950. This letter has not been received by the plaintiff and the learned Judge has not chosen to accept the evidence of the defendant regarding Ext. E5 or the press copy marked as Ext. B38 (a). A perusal of the evidence of the defendant clearly shows that there is a lot of contradiction in the matter of sending this letter and we entirely agree with the learned Judge that the evidence of the defendant regarding the sending of this letter, cannot be accepted.

Even if the defendant has proved the sending of the letter, Ext. B5 cancelling the contract, in our opinion, he is not entitled in law to so cancel a concluded contract unilaterally. Having entered into an agreement, it is not open to the defendant to resile from the same on untenable grounds as he pleases. Therefore, such a cancellation has no effect in law, so far as the plaintiffs rights are concerned.

41. Mr. Srinivasa Ayyengar further contended that the plaintiff committed default in making arrangements for the delivery of the necessary gunny bags. This contention also cannot be accepted, because as early as 18-12-1950 the plaintiff, by Ext. B2 (also A2), has already informed the defendant about the contract and also about his readiness to deliver the necessary gunny bags. In fact, the defendant, by Ext. A 3, on 9-12-1950 asked the plaintiff either to send gunny bags before the 15th or to send money before 30-12-1950.

There is further correspondence between the parties and on 28-12-1950 the plaintiff again by Ext. A5 writes to the defendant stating that that they have made arrangements to supply the gunny bags at Adoni and asking for information as to whom the gunny bags are to be delivered. But to this letter, the defendant sends a reply on 30-12-1950, Ext. A6 stating that the broker has already informed him about the cancellation of the contract and further information may be obtained from the broker.

This is rather a very astounding position taken up by the defendant and even in Ext. A6, he does not say that he has already cancelled the contract by his letter Ext. B5 dated 18-12-1950. A reference to the correspondence Exts. A3 to. A8 and B2, B5 and B6 and the oral evidence adduced in this case clearly show that it was the defendant who has committed a breach of contract. It is very clear that at all material times the plaintiff was ready and willing and even anxious to have the contract completed and fulfilled. The reasons for the defendant backing, out from this contract on flimsy grounds are not far to seek.

The evidence clearly shows that immediately after 5-12-1950, the date of the contract the market was steadily rising and prices were shooting up. Under these circumstances, it is not likely that the plaintiff would do anything to commit a breach of contract, because he would, only be anxious to get the goods for which he had already contracted for at a lesser price. Considering all these circumstances, we agree with the finding of the learned Judge that the plaintiff did not revoke the contract and that it was the defendant who has committed a breach of the contract.

42. Mr. Srinivasa Ayyengar did not very, seriously attack the finding of the learned Judge on the question of damages. In fact, the documentary evidence filed on behalf of the plaintiff, Exts. A22 to A28 clearly shows that the market was rising very much and that the price in. January was about Rs. 43 to 44 and in the month of February 1951 it was about Rs. 42 more than the contract rate.

As observed by the learned Judge, the defendant has not adduced any dependable counter evidence regarding the price during the relevant period. The learned Judge was perfectly right in accepting the evidence referred to above and awarding the sum of Rs. 8,500/- as damages to the plaintiff. We confirm the finding of the learned Judge on this point also.

43. To conclude, we confirm the findings of the learned Judge on the question of breach, and damages, but we reverse the finding of the learned Judge on the question of the legality of the contract.

44. In the result, the judgment and decree of the learned Subordinate Judge on the question of legality of the contract is set aside and, the plaintiffs suit is decreed for the sum of Rs. 8,500/- with interest, and proportionate costs here and in the court below. Regarding the portion, disallowed, the defendant will get proportionate costs in the suit and in the appeal before us.