P L D 1957 (W (PLP)

INAMULLAH, J.

This is a suit for recovery of Rs. 48,918-7-0 which includes interest and the price of the goods supplied to the defendant, and arises under the follow ing circumstances: The plaintiffs entered into a contract with the defendant for the supply of 30,000 packets of link clips on 20th August 1948. The plaintiffs supplied the link clips under instructions given by the defendant by its letter of 11th August 1949. The link clips were inspected and approved by the Inspector on 27th September 1949. On the basis of the inspection note by the Inspector, the plaintiffs submitted a bill for payment of 90 per cent. of the price under the terms of the agreement. The bill was passed and a cheque dated 24th October 1949, for 90 per cent. price and sales tax was issued by the defendant on the State Bank of Pakistan. The cheque, however, was not honoured when presented on 28th October 1949, on the ground that the same had been stopped for payment. The entire price of the goods supplied comes to Rs.46,398-15-0. A notice dated 20th March 1950, under section 80 of the Civil P. C. was sent to the defendant. The plaintiffs, according to the allegations in the plaint, claim that the cause of action arose on the failure of the defendant to pay the price and when the cheque was dishonoured. The defendant Federation of Pakistan has filed a long written statement and raised several points of law and fact. It is contended by the defendant that the Federation of Pakistan did not and could not enter into the alleged contract in view of the provision of section 175 of the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947. The link clips were required for the Government of East Bengal, and therefore, it was only the East Bengal Government which could enter into a contract for the purchase of the same, and not the Governor-General of Pakistan. It is denied in point of fact that the officer who signed the papers relating to the 'invitation to tender' and the 'instructions to tenderers' dated the 17th July 1948, and the 'acceptance' was authorised by the Governor-General to execute the same on his behalf. The contract in question was challenged on, among others, the following grounds (a) There was no completed contract ; (b) The delivery was to be made by 30th November 1948, the time being the essence of the contract ; (c) The plaintiffs failed to supply the contracted goods which was to be brass-tinned clips, with the result that the East Bengal Government had to make local purchases and the plaintiffs were informed hbout the same. The cheque was issued under a mistake of fact, and the plaintiffs are not entitled to base any claim thereon, as the same was without consideration. (d) The samples under the terms of the contract were to be approved by the Assistant Inspecting Officer, Chittagong, and not by the Inspecting Officer, Dacca. (e) The suit against the defendant was not maintainable, as the defendant acted only as agent for the disclosed principal, namely the Government of East Bengal. (f) The notice under section 80, Civil P. C. was bad. This suit, by consent of the learned Advocates for the parties, was tried with suit No. 701 of 1950 between the same parties. The learned Advocates for the parties consented that evidence in the one suit may be read as evidence in the other. The defendant has not led any oral evidence, but has produced a number of documents. On behalf of the plaintiff, Nooruddin Hussain Bhai, a partner in the plaintiff-firm was examined. The plaintiffs have also relied upon a large number of documents. The contention between the parties in this case gave rise to the following issues: Issue No. 1.-Is the contract valid under section 175, Government of India Act, 1935: This is the most important issue in both the cases between the parties. If it is held that the provision of section 175, Government of India Act, as adapted by the Pakistan (Pro visional Constitution) Order, 1947, is mandatory and the contract in question contravenes this provision, the suit will fail, and in that view of the matter it would not be necessary to consider the rest of the issues, but as I had asked the learned Advocates for the parties to address me on the rest of the issues, I will briefly deal with these also. The learned Attorney-General raised four-fold conten tions based on the provision of section 175, Government of India Act, 1935. He contended- (i) that the executive authority of the Governor-General did not extend to enter into a contract so as to bind the Federation of Pakistan for or on behalf of the Provincial Government or in respect of matters appertaining to the Provincial Government of East Bengal ; (ii) that the contract is not expressed to be made in the name of the Governor-General ; (iii) that the contract does not appear to be executed on behalf of the Governor-General ; (iv) that the contract has not been entered into by a person authorised by the Governor-General. I would consider these contentions separately. Considering the provisions of the Government of India Act, 1935, and the contract in question, I have no doubt that the executive authority of the Governor-General did not extend to enter into contract in respect of the purpose of link clips for the Provincial Government of East Bengal. In this connection, the relevant provisions of the Government of India Act, 1935 to be considered are sections 7 and

8. Under section 7 of the Government of India Act the executive authority of the Federation was to be exercised by the Governor-General either directly or through officers subordi nate to him. Section 8 of the Government of India Act deals with the limit or the extent of the executive authority of the Federation. Under the Government of India Act, 1935, the executive authority of the Federation is limited to certain objects. This authority of the Federation extended to matters in respect of which the federal legislature had power to make laws including the exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. The proviso to section 8 oft the Act further makes it clear that the executive authority does not extend, except as expressly provided in the Act, to matters with respect to which the Provincial Legislature has power to make laws. Exh. 8 is a letter dated 6th May 1948, addressed by the Chief Engineer, Government of East Bengal, Communications Buildings and Irrigation Department, to the Director of Supplies, Government of Pakistan. The relevant portions of Exh. 8 for the purposes of consideration of the present ques tion are these: An indent in triplicate for the materials (as per list attached) required for the electrification of Government quarters and office buildings at Dacca is forwarded herewith with the request that you will be so good as to arrange for the supply at a very early date. I certify that the expenditure involved has received the sanction of competent financial authority and that I have been authorised by Government to incur liability in respect of stores indented for here in anticipation of funds being provided for the same." There is a reference in Exh. 8 namely to Indent No. 914A. Exh. 7/1-A dated 20th August 1948, which forms part of the acceptance letter, Exh. 7/1, of the same date. It is clear from the above two documents, Exh. 8 and Exh. 7/1-A that the link clips were required for the building of Government quarters at Dacca. The question now is whether the executive authority of the Federation extended to materials can be purchased by the Provincial Government for its own building purposes. The executive authority of she Federation of Pakistan extended to matters given in Lists J) and (3) of the Seventh Schedule of the Govern ment of India Act, 1937. The proviso to section 8 further limits the authority of the Federation of Pakistan and lays down that the executive authority of the Federation will not extend to any matter in respect to which the Provincial Legislature has power to make laws. List (2) of the Seventh Schedule of the Government of India Act deals with matters relating to which the Provincial Legislature can pass laws. Items (8) and (29) in List (2) of the Seventh Schedule are noteworthy, which reads as under (8) Works, lands and buildings vested in or in possession of His Majesty for the purposes of the Provinces. (29) Production, supply and distribution of goods; development of industries, subject to the provisions in List (1) with respect to the development of certain industries under Federal Control " It is now well-settled law that the items mentioned in the various Lists of the Seventh Schedule of the Government of India Act must be given liberal interpretation. The purchase of the link clips in question will, in my opinion, be covered under the words supply and distribution of goods". The contention of Mr. Qadiruddin, the learned Advocate for the plaintiffs was that the word "extend" in section 8 of the Government of India Act does not limit the power of the executive authority of the Federation only to those matters which are given in Lists (1) and (3) of the Seventh Schedule, but to others also which are not mentioned there. In my opinion the word "extend" is not capable of any such interpretation. The word "extend" limits the exec utive authority of the Federation only to those ite ms which are given in Lists (1) and (3) of the Seventh Schedule of the Act. When we say that the jurisdiction of a particular Court extends to Karachi, it cannot extend to Hyderabad in the absence of anything mentioned in the provision conferring power over that Court. So far as this contention is concerned Mr. Qadiruddin in reply has not urged any other point for my consideration. The Governor-General could not have any power over and above what had been conferred upon him under the Government of India Act, 1935. The learned Advocate for the plaintiffs has failed to refer to any provision in the Government of India Act, 1935, under which the Governor-General could enter into a contract relating to the purchase of goods for buildings belonging to the Provincial Government of East Bengal. I would hold that the Governor-General could not enter into a contract in respect of materials to be supplied for buildings belonging to the Provincial Government of East Bengal. Before considering the other contentions raised by the learned Attorney-General relating to section 175 of the Government of India Act, 1935, it is necessary to consider whether the provision of section 175 is mandatory or other wise. A perusal of clause (3) of section 175 of the Govern ment of India Act, which reads as under, makes it clear that the provision is mandatory: " All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the Governor-General, or by the Governor of the Province, as the case may be and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-General or Governor by such persons and in such manner as he may direct or authorise." The word "shall" in clause (3) of section 175 of the Act renders the compliance of the provision mandatory Mr. Qadiruddin did not contend that the provision was not mandatory. In order to appreciate the other contentions of the learned Attorney-General relating to section 175 of the Government of India Act, it is necessary to reproduce as to what is meant by the term "contract" as given in Exh. 7/34 produced by the plaintiffs, which is a booklet dealing with conditions of contract. In para. 1 of Exh. 7/34 the term "contract" means "the invitation to tender, the instructions to tenderers, the tender, acceptance of tender, 'particulars' hereinafter defined and those general and special conditions that may be added." Exh. 7, dated 17th July 1948, is an invitation to tender and instructions to tenderers, Exh. 7/2 dated 19th July 1948, is the tender, and Exh. 7/1 dated 20th August 1948, is the acceptance. It is clear from the term "contract" as defined by the Department of Supply, Government of Pakistan, and relied upon by the plaintiffs, that the term "Contract" would include "invitation to tender and instructions to tenderers", "tender", and "acceptance" thereof. So far as the various documents, namely (1) "Invitation to tender and instructions to tenderers" and (2) the "accep tance of tender" are concerned, Exh. 7 and Exh. 7/1, on the face of it, they do not appear to be expressed to be made by the Governor-General. In fact Exh. 7/1, "invitation to tender" was issued by Mr. M. Iqbal, Assistant Director (Supply) for the Secretary of the Department of Supply and Development. The tender, Exh. 7/2 was addressed by the plaintiff's to the Secretary to the Government of Pakistan, Ministry of Education and Industries. In the "acceptance", Exh. 7/1, which though does not appear to have been express ed to be made in the name of the Governor-General, but below the signature of M. Iqbal. A. D. (S) appear the words "For and on behalf of the Governor-General, Pak". It is clear from a perusal of these documents, which constitute the contract between the parties, that there has been a non compliance of section 175 of the Government of India Act, 1935. In order that there may be a legal contract it was necessary that the invitation to tender and the instructions to tenderers should have been issued in the name and on behalf of the Governor-General and in the manner and by the person authorised by him. As I have already mentioned, Exh. 7, the invitation to tender and instructions to tenderers, had not been issued in the name and on behalf of the Governor-General. So far as the question of the person: authorised to enter into the contract on behalf of the Governor-General is concerned, I will consider it later on. The tender, Exh. 7/2 is addressed to the Secretary to the Government of Pakistan, Ministry of Education And Industries. It is clear from this tender that it has not been addressed to the Department of Supply and Development which bad issued the invitation to tenderers. Coming to the letter of accep tance, Exh. 7/1, there is nothing in the body of this document to show that it was expressed to be made by the Governor-General and on behalf of the Governor-General. Mr. Iqbal, A. D. (S), no doubt, signed the same "for and on behalf of Governor-General, Pak." These words appear below the signature of Mr. Iqbal. The question is whether this is sufficient compliance of section 175 of the Government of India Act. Mr. Qadiruddin contended that as no form for contract is prescribed under clause (3) of section 175 of the Government of India Act, 1935. the addition of the words "for and on behalf of Governor-General. Pak," under the signature of Mr. Iqbal was sufficient compliance. In my opinion, clause (3) of section 175 of the Government of India Act does prescribe the form in which the contracts are to be made by the Governor-General in exercise of the executive authority of the Federation. The form prescribed is that the contract "shall be expressed to be made by the Governor-General and all such contracts. . . . . shall be executed on behalf of the Governor-General . . . . . in such manner as he may direct or authorise". From a perusal of the letter of acceptance, Exh. 7/1, dated 20th August 1948, it cannot be said that the contract has been expressed to be made by the Governor-General. At best it might be said that the words "for and on behalf of Governor-General, Pak." appearing under the signature of Mr. Iqbal meet the requirement that the contract was executed on behalf of the Governor-General. A clear distinction has to be drawn between the contract being expressed to be made by the Governor-General and the execu tion of the same on behalf of the Governor-General by such person as the Governor-General may have directed. The legislature had not, to my mind, unnecessarily introduced the words "shall be expressed to be made by the Governor-General" The object appears to be to attach certain sanctity and formality to contracts which are entered into on behalf of the Federation of Pakistan by the Governor-General. The pro vision being mandatory, the mere fact that the requirement is technical would not make the contract valid in law so as to make it enforceable against the Federation of Pakistan. In order to realise the force of the expression " shall be expressed to be made by the Governor-General," the history of this provision will be of some help. The earliest provision to which reference in this connection has been made is Statute 22 and 23 Vic., c.

41. This is reproduced at page 604 in the case of Municipal Corporation of Bombay v. Secretary of State (I L R 29 Bom. 580 : 600). The relevant portion reads as under : " The Secretary of State in Council may be named as a party to such deed, contract or other instrument ; and it shall be sufficient to use the designation of Secretary of State in Council in such deed, contract, or other instrument ; and the same may be expressed to be executed on behalf of the Secretary of State in Council by or by order of the Governor-General in Council . . . . . " Rankins, C. J. while interpreting a Resolution, which was contended to be a contract entered into by Government, held that the contract was not valid as the same did not comply with the terms which I have reproduced above. The Resolution ran as under : -- "Government are pleased to sanction the application of the Municipal Commissioner for a site for stabling as expressed in paragraph 8 of his letter, on the terms proposed by the Architectural Improvement Committee in para. 1 of their letter". Rankin, C. J. sitting with Batchelor J. held that "the provisions of these sections have not been observed, and that so far as the Resolution purports to be a disposition, it does not conform with the prescribed requirements. He further observed that the disposition of Crown lands by the Governor in-Council was dependent for its validity on and adherence to the form prescribed, and that, as the Resolution did not observe the forms, it was invalid. It is interesting to note that though in Statutes 22 & 23 Vic., c. 41, the word used was "may" it has been interpreted by Rankin, C. J. as if it was mandatory. Section 30 of the Government of India Act 1915 embodied similar provision as regards the contracts that the Governor General in Council could execute on behalf and in the name of the Secretary of State in Council. The relevant portion of section 30 of the Government of India -Act, 1915 ran as under :- "The Governor-General-in-Council and any local Government may, on behalf and in the name of the Secretary of State in Council, and subject to such provisions or restrictions as the Secretary-in-Council . . . prescribe . . . . make any contract for the purpose of this Act." From the above provision of section 30 of the Act it is clear that the words "shall be expressed to be made by the Governor-General" have been introduced only in the Act of 1935. The relevant words have been retained in Article 135 of the Constitution Act. The learned Attorney-General for the State has relied on number of authorities in support of his contention that the provision of section 175 of the Government of India Act, 1935, is mandatory and non-observance of the same vitiates the contract. He relied on the following cases :- Municipal Corporation Bombay v. Secretary of State (A I R 1935 Born. 277), Secretary of State v. Yadavgir Dharamgir (A I R 1936 Bom.19 : 21), Krishnaji Nilkant Pitkar v. Secretary of State (A I R 1937 Born. 449), Secretary of State v. Bhagwandas Goverdhandas (A I R 1938 Bom. 168), Ram Nagina Singh v. Governor-General-in-Council (A I R 1952 Cal. 306), Sabodh Ranjan v. Maj M. A. O'Callagham and another (A I R 1953 Cal. 319), Lakshmi Narain Gupta v. A. N. Puri and another (A I R 1954 Cal. 335), New Churulia Coal Company Ltd., v. Union of India (A I R 1956 Cal. 138), The Province of Bengal v. S. L. Puri (51 C W N 753), Brij Lal Suri v. State of Uttar Pradesh and others (A I R 1954 All. 393), Secretary of State v. G. T. Sarin & Co. (A I R 1930 Lah. 364), Nellore and another v. Secretary of State and others (A I R 1950 Mad. 194), K. Perumal Mudaliar v. Province of Madras (A I R 1938 Mad. 749), N. Purka Yastha and another v. Union of India (A I R 1955 Assam 33), Dhameswar Kalita v. Union of India (AIR1955Assam86), Satya Prakash and others v. Commissioner, Land Reforms & Jagirs, M. B. and others (AIR1955MB188), Secretary of State for India v. Chettyar Firm of S. R. MM. R. M. and others (AIR1927Rang.14). Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others (AIR1954SC326) and Thawardas Pherumal and another v. Union of India (A I R 1955 S C 468). From a perusal of the authorities mentioned above it would appear that the only difference of opinion appears to be on the question whether any formal document is necessary for entering into a contract by or on behalf of the Federation, but the principle laid down by all the authorities is clear that the contract must ex facie show that the provision of section 175 of Government of India Act has been complied F with. In the present case, in my opinion, the various documents which form the contract between the plaintiffs and the Governor-General of Pakistan do not disclose ex facie that the provision of section 175 of the Government of India Act has been complied in so far as it requires that "the contract shall be expressed to be made by the Governor-General and that "it shall be executed on behalf of the Governor-General." I have so far considered only two of the essentials of clause (3) of section 175 of the Government of India Act, 1935. The third requirement is that the contract shall be executed by a person who is authorised, or has been directed by the Governor-General to execute it. The contention of the learned Attorney-General was that M. Iqbal had no power or authority on behalf of the Governor-General to enter into the present contract. Mr. Qadiruddin, the learned advocate for the plaintiffs, relied on Exh. 7/13, .a notification dated 16th July 1943 by the Governor-General' under caluse (3) of section 175 of the Government of India Act, 1935 authorising certain officers to enter into contracts on his behalf. He further relied on the notification dated 6th May, 1946, amending the notifitation of 16th July 1943 Exh. 7/13, and lastly he relied on notification Exh. 7/33 dated 6th April 1950, issued by the Ministry of Law & Labour, Govern ment of Pakistan whereby the Governor-General in exercise of his powers under section 175 (3) of the Government of India Act, 1935 "in supersession of the notification of the Government of India in the Legislative Department . . . . dated the 16th July 1943, as subsequently modified" declared that the contracts and assurances of property made in exercise of his executive authority may be executed on his behalf by persons named in that notification. Mr. Qadiruddin contended on the basis of these notifications that M. Iqbal the Assistant Director (Supply) bad the power to enter into the contract in question on behalf of the Governor-General. The learned Attorney-General raised two-fold conten tions in regard to the notification of 16th July 1943, and that of 6th May 1946, relied upon by Mr. Qadiruddin. In the first place he contended that these notifications did not apply to the Government of Pakistan, as the contract was entered into in 1948 before the issue of the notification dated 6th April 1950. In the second place his contention was that M. Iqbal, Assistant Director (Supply) was not authorised to enter into a contract on behalf of the Governor-General, as the contract in question would appear to be on behalf of the Department of Supply and Development. So far as the first contention is concerned. Mr. Qadiruddin relied on para. 5 of the Pakistan (Provisional Constitution) Order, 1947, which reads as under :- "Where any instrument is in force under any provision of the Government of India Act, 1935, immediately before the appointed day, and that provision remains in force, whether with or without notifications, on and after the appointed day, the said instrument shall, so far as applicable and with any necessary modifications, remain in force as from that day as if it were an instrument of the appropriate kind duly made by the appropriate authority under the said provision as in force after that day, and may be varied or revoked accordingly." I have no doubt that the notification of 6th May 1946, is an instrument within the meaning of the Pakistan (Provisional Constitution) Order, 1947 and that the same was in force at the time when the contract in question was made. So far as the other question is concerned, the contention of the learned Attorney-General was that the Assistant Director of Supply at best was entitled to sign on behalf of the Governor-General "whenever a contract was made by the Industries and Supplies Department". The contract in the present case was made, as would appear from Exh. 7/1 dated 20th August 1948, by the Department of Supply and Development. Mr. M. Iqbal in fact had signed as Assistant Director (Supply). It may be that the Department of Supply was amalgamated with the Department of Development, but it does not mean that the Department which had entered into the contract was not the Department of Supply though it may be for Development also. I would hold that M. Iqbal was authorised to enter into the contract on behalf of the Governor-General as he was an Assistant Director of Supply. Mr. Qadiruddin lastly contended that if this Court were to hold that the present contract is not binding on the Federation of Pakistan it would affect numerous other contracts which do not purport to be expressed to be made in the name of the Governor-General. It appears that a similar argument was advanced in the case of Chaturbhuj hithalos (A I R 1954 S C 236), where the learned Judges while considering the scope of Article 299 of the Indian Constitution, which is similar in expression as section 175 of the Government of India Act, 1935, observed :- "We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contract ing party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility." It is clear from the above observation that in India too there were number of contracts which did not comply with the requirements of section 175 of the Government of India Act, 1935, or similar provision of law, but the Government honoured those contracts so long as the dealings of the party concerned was straight-forward. It is admitted by the plaintiff himself that his contract and those of other parties which were entered into in similar form, have been honoured by the Government and the parties have been paid. In the case I have referred to above the learned judges of the Supreme Court of India were considering a certain contract between the Government and the appellant in an Election Petition where the contention was that the appellant having taken a contract from the Government was disqualified from seeking election from a certain constituency. The Election Tribunal held that the appellant had a contract with the Government. Before the Supreme Court it was contended that the contract was not expressed to be made in the form as required by Article 299 of the Indian Constitution and was therefore void. The learned judges of the Supreme Court held that, though the contract not having been expressed to be made as required by law was not binding on the State, it was not void and could be ratified by the Government. The following observation of the Supreme Court is relevant in this connection :- " It would, in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued ; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government." Issue No. 2.-Was there any breach of cont7act on the part of the plaintiffs. ? Issue No. 3.-Has the plaintiff failed to supply the required materials within the specified time ? These two issues are inter-linked with each other and can be disposed of together. The contention of the defendant was that the date of supply of the link-clips was fixed under Exh. 7/1 dated August 20, 1948 to be November 30, 1948, and that the plaintiffs have failed to supply the contracted goods by that date. On 30th September 1948, the Assistant Inspecting Officer, Chittagong, who had inspected the link clips directed the plaintiffs to submit the same for approval 'of the Executive Engineer, Dacca. The latter on inspection informed the plaintiffs that the samples shown were not required by the Department, as they were ''tin clips" and not "brass-tinned clips". The Executive Engineer, however, was prepared to purchase the same provided there was a com parative reduction in the price, as the clips were not brass- tinned clips, but were tin clips. The plaintiffs failed to supply the contracted goods within the time, with the result that the Executive Engineer was obliged to purchase clips locally. Admittedly, the plaintiffs were not able to supply the contracted goods by 30th November 1948. They were not in a position to supply the same before September 1949 when they submitted the goods for inspection to the Inspecting Officer, Dacca. I would hold that plaintiffs had failed to supply the contracted goods by 30th November 1948. So far as the question of lapse of the contract by failure of the plaintiffs to supply the contracted goods by 30th November 1948 is concerned, from the evidence with which I would presently deal it is clear that the time for supplying the goods had been extended. Exh. 7/3 dated 4th August 1949 is a letter by the Department of Supply and Development cancelling the contract in respect of insulators. The tender for the link clips and insulators was made by the plaintiffs at the same time and was accepted by the Supply Department through the same letter. It is noteworthy that the Supply Department though cancelled a part of the contract in respect of insulators, but they did not mention anything about the link-clips. In fact Exh. 7/3 contained the following :- "All other terms of the A/T remain unaltered." The other letter dated 11th August 1949, Exh. 7/4 by the Assistant Director of Supplies addressed to the plaintiffs which has reference to the link-clips, also makes it clear that the contract in respect of link-clips was never cancelled. Through this letter the Assistant Director of Supplies sent certain instructions as to how the link-clips were to be despatched. To my mind it is clear from these letters that the Supply Department had not cancelled the contract in respect of the link-clips, but kept it alive. The question however remains whether the plaintiffs have carried out the terms and conditions of the contract or not. In this connection the learned Attorney-General contended that the plaintiffs did not have the goods inspected by the authority mentioned under the contract. Under Exh. 7/lA, which forms part of the 'letter of acceptance' by the Supply Department dated 20th August 1948, the inspection was to be done by the Assistant Inspecting Officer, Chittagong. Under this Exh. 7/lA the place at which the inspection was to take place was also notified, namely, Chittagong. The contention of Mr. Qadiruddin was that the Inspector was the final authority to certify inspection. Mr. Qadiruddin relied on an inspection note dated 27th September 1949 by the Inspector Mr. Muhammad Shafi, and contended that it was sufficient compliance of the terms of the contract. He referred to para. 13 (at page 30) of Exh. 7/34, which runs as under :- "Inspector-the final authority and to certify inspection." In my mind this would not be sufficient compliance of the conditions of the cpntract. The term "Inspector" is defined in Exh. 7/34 at page 2, and runs as under :- "The term 'the inspector' shall mean any person nominated by or on behalf of the Purchaser to inspect supplies stores or work under the contract or his duly authorised agent." Reading Exh. 7/lA it is clear that the purchaser had nominated the Assistant Inspecting Officer, Chittagong, and not the Inspecting Officer, Dacca to inspect the goods The importance of assigning the Assistant Inspecting Officer to inspect the goods becomes clear on reference to Exh. 7/19, which is a letter by the office of the Accountant-General Pakistan to the plaintiffs. The Accountant-General's office informed the plaintiffs on 26th November 1949, that the payment of the cheque issued by that office had been stopped in response to a telegram dated 25th September 1949, from Assistant Inspecting Officer, Chittagong. The plaintiff's conduct in this connection- in approaching the Inspecting Officer, Dacca, instead of the Assistant Inspecting Officer, Chittagong is not commendable, especially in view of the fact that they had in the first instance approached the Assistant Inspecting Officer, Chittagong for the inspection of the clips. It seems however that the Assistant Inspecting Officer, as would appear from his note Exh. 8/25 dated 30th September 1948, had found the clips to be short in length and stated they could be accepted if offered in correct lengths. From this note regarding the link-clips, it is clear that the Assistant Inspecting Officer had not approved the samples of the clips offered. The plaintiffs, in order to by pass him, almost after a year got the link-clips approved by the Inspecting Officer. This act seems to have been detected in good time, with the result that the Assistant Inspecting Officer stopped the payment of the cheque given by the Accountant-General of Pakistan on 25th October 1949. I may also mention that the plaintiffs were entitled to 90 per cent. of payment only after they had performed the terms and conditions of the contract regarding the inspection. In this case, fhe defendant was quite justified in law to stop the payment when it discovered the mistake that the inspection had not been done in accordance with the terms and conditions of the contract. Before I dispose off this issue regarding the breach of contract, I would make a reference to Exh. 8/30 dated 10th August 1949, a letter by the Chief Engineer, Dacca. He had very clearly addressed the Director General o Supply, Government of Pakistan that if the plaintiffs were to make arrangement for new clips, they would do so at their own risk. The plaintiffs, however, proceeded in total disregard of Exh. 8/30 and ignored the Assistant Inspecting Officer, Chittagong. Under these circumstances, I would hold that though the time of supply of the contracted goods was extended by the Supply Depart ment, the plaintiffs did not observe the terms of the contract in supplying the goods and therefore the plaintiffs committed the breach of contract. Issue No. 4.-Is the suit not maintainable against the Federation of Pakistan as alleged in para. 4 of the written statement ? So far as this issue is concerned, the contention of the learned Attorney General was that as the Federation of Pakistan only acted as agents of the disclosed principal, which happened to be the Government of East Bengal, the suit was not maintainable. Reliance in this connection was placed on section 230 of the Contract Act. Under section 230, in the absence of any contract an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he bound by it. In the present case the payment under the terms and conditions of the contract was made by the Accountant General, Pakistan Revenues, Karachi. In other words, the Federation of Pakistan had made itself bound to pay for the goods supplied to East Bengal Govern ment. This is clear from the terms contained in Exh. 7/lA1 dated 20th August 1948. I would hold that the suit is not barred under the terms of section 230 of the Contract Act. This finding is subject to what I have held under issue No.

1. Issue No. 5.-Were the objections stated in para. 3 (c) of the written statement waived? If so, what is its effect ? Under para. 3 (c) of the written statement it was urged that on 30th September 1948 the plaintiff's representative submitted samples of link-clips to the Assistant Inspecting Officer, Chittagong, who after pointing out the defects in the samples directed him to approach the Executive Engineer, Dacca. The Executive Engineer, Dacca found that the link-clips were not brass tinned clips and therefore he asked for the reduction of price to which the plaintiffs did not send any reply. It is clear from the very fact that the plaintiffs ultimately tried to supply the brass-tinned link-clips that the defendant had not waived their right to receive brass-tinned clips. So far' as the question of issuing the cheque for payment to the plaintiffs is concerned, I have already mentioned that the defendant on finding that the plaintiffs had not complied with the terms of the contract by getting the goods inspected by the Assistant Inspecting Officer, Chittagong, were justified to stop payment of the cheque. I would hold that the defendant had not waived the objection which they had raised. Issue No. 6.-General. Mr. Qadiruddin contended that the suit was also based on the failure of the defendant to make payment on the presentation of the cheque in question. In view of what I have held under other issues, it is clear that there is no force in this contention for twofold reasons : (1) there was no legal contract, so as to bind the defendant, and (2) the plaintiffs had failed to comply with the terms of the contract. Under these circumstances the suit was not maintainable on the basis of the cheque. The suit is dismissed with costs. A. H. Suit dismissed.