P L D 1959 (W (PLP)

KAIKAUS, J.‑This is an appeal by the defendants in a suit for damages for breach of contract of sale of cotton seeds. The plaintiffs‑respondents M/S A. M. Wazir Ali are a firm who are carrying on business of extracting and selling cotton seed oil. They have an office in Karachi as well as in Hyderabad where they are running a factory called the Sind Oil Mills. The defend ants‑appellants are a firm dealing in cotton seeds. They have their head office at Hyderabad where they have at the same time a ginning factory. On 28th August 1951 two contracts were entered into between "The Sind Oil Mills" and the defendants the first for sale of 15,000 maunds of cotton seeds and the second for sale of 30,000 maunds of cotton seeds to the plaintiffs by the defendants. The "Sind Oil Mills", as originally constituted, was admittedly a firm in which the plaintiffs‑respondents and two others were partners. The plaintiffs‑respondents claim that they had acquired the interests of the other partners in the firm and that it is they alone who were doing business in the name of "Sind Oil Mills" at the relevant date. According to the allegations in the plaint the defendants had supplied only 5,790 maunds of cotton seeds in respect of the two contracts mentioned above and on 8th Novembe, 1951 the defendants had repudiated the existence of the contracts and had refused to perform them any further. At this the plaintiffs‑respondents were forced to make purchases in the market of the remaining quantity of cotton seeds and as the price had risen they suffered loss. The plaintiffs‑respondents claimed Rs. 73,716‑4‑0 as the extra cost they had incurred for purchase of cotton seeds and Rs. 7,367‑8‑0 as the price of 4210 gunny bags which they had supplied to the appellants and which had not been returned (the total number of gunny bags supplied to the appellants was 10,000). The total‑claim of the plaintiffs‑respondents came to Rs. 81,083‑12‑0 and the respondents sued for Rs. 81,000 giving up Rs. 83‑12‑

0. The suit had been filed in the name of the Sind Oil Mills in the first instance. On objection by the defendants the plaintiffs put in an application for substitution of A & M Wazir Ali & Co., for the Sind Oil Mills. This application was granted and M/S A & M Wazir Ali & Co., were substituted as plaintiffs. The defendants‑appellants contended that the contracts were with the Sind Oil Mills and not the plaintiffs and therefore the plaintiffs had no right to sue. It was pleaded too that the Sind Oil Mills were not registered and a suit could not be filed in respect of a contract entered into with them. An objection was taken also to the signature and verification of the plaint. On the merits the appellants pleaded that the contracts relied upon had been cancelled by the agreement of the parties and had been substituted by an oral contract for the supply of 6,000 maunds of cotton seeds only. It was further pleaded that the breach of contract was on‑ the part of the respondents. It was denied that any gunny bags of the plaintiffs were with the defendants. The learned Sub‑Judge First Class held on all points against the defendants and decreed the suit in full. The first point urged before us is that M/S A & M Wazir Ali have no right to sue for the contract was with the Sind Oil Mills. Some admitted facts may be stated here. The factory which now bears their name the "Sind Oil Mills" was called "Sakseria Oil Mills" and was owned by Messrs Govindram Sakseria, Hyderabad. On 5th February 1948 an agreement for partnership was entered into between Messrs Govindram Sakseria Hyderabad. Messrs. A & M Wazirali and D D. Parker by which the Mills were henceforth to be run as a partnership by the three partners named above in the name of "Sind Oil Mills". The shares of Messrs. Govindrarn Sakseria and Messrs A & M Wazirali were 7 annas each whereas the share of D D Parker was 2 annas. Parties appear to have commenced business on the basis of the agreement for partnership although a proper deed for partnership was executed only on 25th April, 1949. On 7th April 1948 D. D. Parker mortgaged his share for Rs. 3,34,000 in favour of Messrs A & M. Wazirah by means of a mortgage deed. All the documents mentioned above had been executed at Bombay. According to the allegations of the respondents Messrs Govindram Sakseria transferred their share in the Mills to them sometime between September and December 1949. The Rehabilitation Department appears to have made an attempt to treat the Sind Oil Mills as evacuee property at which the respon dents put in an application before the Custodian claiming that an account of the transfers to them of the interest of the other two partners they were now the sole owners of the concern known as the Sind Oil Mills. By his order dated 19th September 1950 the Assistant Custodian held that the whole of the interest in the Sind Oil Mills had passed to the respondents and that they were the full and exclusive owners of the Sind Oil Mills. Both Messrs Govindram Sakseria and D. D. Parker had been made parties to this application. They did not contest the application and D. D. Parker even filed an affidavit to the effect that he had no concern with the Sind Oil Mills as he had transferred his share to the respondents. In his order the Assistant Custodian had not said anything about the status of D. .D. Parker as to whether he was or was not an evacuee. So far as Messrs Govindram Sakseria are concerned, he relied on an alternative argument that as they were residing at Bombay and were nationals of India their share of the property in dispute could not be held to be evacuee. The contention of the appellants before us is that this order of the Assistant Custodian is relevant only for the purpose of determining whether the property in dispute was or was not evacuee property and is irrelevant for the purpose of determining whether the interests owned by D. D. Parker and Messrs Govindram Sakseria in fact passed to the respondents. Learned counsel relies on the fact that in the judgment the status of D. D. Parker is not determined and in respect of Govindram Sakseria the learned Assistant Custodian had expressly stated that they were not evacuee. If neither of the two partners was held to be an evacuee the judgment, he contends, would not be relevant in an ordinary Civil Court where the question of their interests is to be decided. Learned counsel relies also on the fact that the judgment deals not with the transfer of the interests as partners but only with the immoveable property that constitutes the 'Sindh Oil Mills'. It is argued that there is no legal proof on this record of the transfer of the interests of other partners to the respondents. The result would be that the original firm known as Sind Oil Mills with three partners would be existing on the date on which the contracts in dispute were entered into and it is only the firm known as Sind Oil Mills which could file the present suit. A judgment by the Custodian can be relevant only for the purpose of determining whether some property is or is not evacuee property. It may be that in a particular case the finding as to the property not being evacuee necessarily involves another determ ination of title and in that case the judgment of the Custodian may become res‑judicata to that extent, but in the circumstances of the present case lit cannot be said that the judgment of the Custodian is inconsistent with the absence of transfer of interests of the other two partners in the firm known as the Sind Oil Mills. In the last part of the judgment the Custodian had even said that the property would not be evacuee even if Messrs Govindram Sakseria were its owners. The finding as to the property not being evacuee property would not therefore be inconsistent with the ownership of Messrs Govindram Sakseria. So far as D. D. Parker is concerned there was no finding that he was an evacuee. We have, therefore, to see whether on the present record it is established that on the date on which the contracts were entered into the firm known as Sind Oil Mills no longer existed. The mortgage deed executed by D. D. Parker in favour of the respondents on 7th April 1948 is on the record. The agreement for partnership and the deed of partnership are also on the record. Raza Ali the Manager of the respondents has made a statement to the effect that both D. D. Parker and M/S Govindram Sakseria had transferred their shares to the respondents, the first for a sum of Rs. 3,20,000 and the second for Rs. 8,15,

000. Raza Ali even stated that retirement of the two partners M/S Govindram Sakseria and D. D. Parker was notified in the Pakistan Gazette. However, the Gazette itself was not produced and the publication in the Gazette cannot be said to be proved. Nothing was brought out however in the cross‑examination of Raza Ali which would in any way create doubt as to the correctness of the rest of his statement. There is no rebuttal of this evidence by the appellants. In fact they are relying only upon a technical plea. The circumstances on the record are quite sufficient for an inference that M/S Govindram Sakseria and D. D. Parker had given up all connections with the firm known as Sind Oil Mills. They had not contested the applica tion which was put in‑ by the respondents for a declaration that the Sind Oil Mills was ‑exclusive property of the res pondents. On the other hand D. D. Parker had even filed an affidavit to support the case of the respondents. The partnership between the parties was admittedly one at will which could be terminated at any time by one of the partners but whatever the kind of partnership it can always be dissolved by the consent of all the partners as provided for in section 40 of the Partnership Act. It is clear that the other two partners in fact had deliberately given up all connection with the Sind Oil Mills before the contracts in dispute were entered into. The respondents had applied for a declaration of being exclusive owners of the Sind Oil Mills and had‑ secured an order in their favour in 1950 and since then they have been doing business in the name of Sifld Oil Mills as its sole owners. The contracts in dispute had been entered into in 1951. We hold that on the date of contracts the original firm known as Sind Oil Mills was no longer in existence and it were only the respondents who were doing business in that name. A strenuous argument has been put forward on behalf of the appellants that although the firm may have been dissolved as between the partners, as regards third parties the firm was as yet in existence because no public notice of dissolution was given and reliance is placed for this proposition on section 45 of the Partnership Act which runs :‑ " (1) Notwithstanding the dissolution of a firm, the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm if done before the dissolution, until public notice is given of the dissolution: Provided the estate of a partner who dies, or who is adjudicated an insolvent, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable under this section for acts done after the date on which he ceases to be a partner. (2) Notices under subsection (1) may be given by any partner ". The fact that partners remain liable to third parties does not mean that the firm remains in existence in relation to such parties. We cannot take the words of section 45 further than what is. actually contained in them. If notice has not been given f dissolution a third party when it has to enforce its right can sue all the partners. That is on the principle of estoppel. Once the partners have represented to the public that they are a firm they cannot repudiate their liability till they give public notice because third parties may be having dealings with the individual partners only because they were regarded as members of that firm. If the appellants were filing a suit against the Sind Oil Mills they may have impleaded the other two partners and those partners could have been liable in spite of dissolution for want of public notice. But that is the only effect of want of notice. The firm does remain dissolved. This in fact is provided in the section when it says " notwithstanding the dissolution". All that the section say is that even a person who is not a partner shall be liable because he did not give notice. But it certainly does not mean that all the previous partners should be plaintiffs in suit filed by one partner in respect of a transaction entered into by them subsequent to the dissolution. The suit would have to be dismissed qua the previous partners. Truly speaking we are not even concerned with whether there was a technical dissolution of ‑the firm known as Sind Oil Mills or not. The question for consideration in this case is as to who is entitled to the benefit of the contracts which are the basis of the suit. Assuming that there was some firm whose name was the Sind Oil Mills that would not make the partners of that firm owners of the interest in the contracts in dispute. These contracts were obviously entered into by the respondents who were carrying on business in the name of the Sind Oil Mills. If the firm Sind Oil Mills was in existence we would regard the name Sind‑ Oil Mills which was being used by the plaintiffs‑respondents as something different from the original firm Sind Oil Mills. It is just a name in which the respondents were doing business and it is the respondents who would be parties to any transaction which they enter into in that name. It should be clear that Govindram Sakseria and D. D. Parker could have no interest in these contracts. We put a question to learned counsel for the appellants as to whether if M/S Govindram Sakseria and D. D. Parkar had also been made plaintiffs in the present suit (the suit) could have been decreed in their favour. He was forced to reply in the negative. The suit would as regards them have to be dismissed because even if the firm known as Sind Oil Mills existed they had certainly no interest in the present contracts. The contracts had been entered into by Babar Ali who is a partner of a firm of M/S A & M Wazir Ali. He was acting as an agent for M/S A & M Wazir Ali alone though he used the name " the Sind Oil Mills ". A contract binds either the person who actually enters into a contract or the person whom he represents. It cannot bind a person for whom the person who actually enters into it is not an agent. Babar Ali was not an agent for M/S Govindram and D. D. Parker and they never became parties to these contracts. The next legal objection to the maintainability of the suit is that relating to the registration of a firm. The plaintiffs respondents are admittedly a registered firm but the contention of learned counsel for the appellant is that as they had entered into these contracts in the name of Sind Oil Mills the name Sind Oil Mills should also have been registered and the respondents cannot evade the provisions relating to the registration of a firm by filing a suit in the name of ‑M/S A & M. Wazir Ali. Learned Counsel is unable to refer to any provision which obliges a firm to have itself, registered in all the names which it may use. It' is perfectly legitimate for an individual to do business in any' particular name and we 'do not see why a firm should also' not be entitled to do business in any name it pleases. It may, for instance, have to do business in the name of a mill or a factory. If it purchases a factory and already business is being carried on in the name of that factory it may be very inconvenient for the firm to begin doing business connected with that factory in their own name. It may be pointed out here that the appellants themselves are doing business in the name of the Sind Electric Ginning Factory. The provision which debars a firm from suing if it is not registered is a technical provision which defeats rights of parties and which should be strictly construed. We will not extend it beyond what its wording implies. Here the plaintiff is undoubtedly a registered firm. If the intention of the law was that firm should register all the names they use it should have been clearly provided. The objection that the plaint was not properly signed does not deserve any serious notice. That the suit was in fact filed under the authority of the respondents is not denied and during the course of the arguments in the lower Court, Babar Ali, one of the partners of the respondents firm, was directed by the Court to sign the plaint and he signed it. We come now to the merits and in order to appreciate the case of the parties it is necessary to state the plea of the defendants in more detail and to refer to the prevailing practice with respect to contracts. As already stated both parties have their offices at Karachi as well as at Hyderabad. The agreements in dispute were entered into in accordance with the case of the respondents, in triplicate, though from the evidence of Muhammad Jamil one of the partners of the appellants it appears that the contracts are generally executed in duplicate. The originals of the contracts remained with the appellants. Both parties sent the contracts in dispute to their Hyderabad offices. According to the case of the respondents their Karachi office retained the third copy and sent the duplicate to the Hyderabad office. The original which was with the appellants was sent by their Karachi office to the Hyderabad office. There appears to have been a practice that the offices at Hyderabad sought confirmation of the contracts entered into at Karachi. In any case the seeking of confirmation is not regarded as something unusual and this confirmation is even sought by sending copies of the original contracts for signatures. This is apparent from letter Exh. 82 on which both parties rely and to which there will be detailed reference later. The case of the defendants is that the copies of the contracts (entered into at Karachi) which were sent by the respondents to the appellants for confirmation were not exact copies of those contracts but there was in them some variation of terms. The first contract, i.e.; No. 3 of 1951, was in fact for 15,000 maunds but in the copy sent for confirma tion the quantity was charged into 10,000 maunds and whereas the real date of delivery was up to 5th October only it was extended in the copy up to the end of the month of October. So far as the contract for 30,000 (contract No. 6) is concerned the variation alleged is that dates of delivery were changed ; whereas in the original contract the delivery was up to January 1952, according to the copy sent to the app; pant, 10,000 maunds were to be delivered in October 1951 and 20,000 maunds in November December 1951. Ultimately according to the appellants the original contracts were cancelled by mutual agreement because the variations were not acceptable to the appellants and the original contracts were not acceptable to the respondents ; and they were substituted by an oral contract of 6th September 1951 for 6,000 maunds at the rate of Rs. 5‑8‑0 per maund. It was towards this contract that they had given delivery of 5,790 maunds. In support of the story of the defendants, Muhammad Jamil a partner in the defendants firm made his own statement in the witness box and that is the only oral evidence offered by the defendants Muhammad Jamil stated that Kishin Chand a broker had brought to him on 6th September 1951 Exhs. 106 and 107, which are copies of contracts Nos. 3 and 6, (the contracts which are the basis of the suit), with the variations alleged by the defendants. Exhs. 106 and 107 had been signed by Raza Ali, the Manager of the respondents. Me did not approve of Exhs. 106 and 107 because of the variations they contained and therefore the contracts were can celled. At the same time an independent contract of 6,000 maunds of cotton seeds at the rate of Rs. 5‑8‑0 was entered into. The cancellation and the effecting of the new contract were done by talks on telephone. On the same date i. e., 6th September 1951 he wrote two letters to the Sind Oil Mills Exh. 82 and Exh.

125. The argument of learned counsel for the appellants on the question of cancellation of contracts is based mostly on these two letters. It would be proper to reproduce the letters here ; Exh. 82 which had been produced by the plaintiffs themselves runs MUHAMMAD JAMEEL & Co. Prop. Sind Electric Ginning Factory, Head Office, Karachi. Tando Agha. Ref. Mjc. /51‑52‑F.5. Hyderabad Sind, 6th Sep.

51. The Sind Oil Mills, Hyderabad (Sind) Re: Cont. No. 3/1951‑52 of 28th August 1951, for 10,000 mds. and cont. No. 6/1951‑52 of 28th August 51, for 30,000 maunds. Dear Sir, Please refer to your above cited contracts which were delivered in our factory by Nathurmal, your broker. While perusing this has been observed that the contract No. 3/1951‑52 is erroneous in respect of Quantity, Delivery period and delivery conditions besides, the details received by us from our Karachi office convey that the said contract was made for 15,000/‑ (fifteen thousand maunds only) instead of 10,000 as introduced by you, delivery September/October and weighment and delivery there of in our mills premises, therefore your confirmation is solicited, so‑that the needful should be done, and, in the meantime we have detained your contracts. This also relates to our telephonic conversations which the undersigned had with your Agha Raza Ali to day. Thanking for an early action hereof. Yours faithfully, for Mohamad Jamil & Co. (Sd.) Illegible Manager. Copy to Karachi Office for information. The other letter Exh. 125 which is denied by the plaintiffs and which has been held to be a forgery by the lower court is in the following words: The largest Cottonseed Oil Mills in Pakistan. Hyderabad (Sind) Contract No. 3/1951‑52, Aug. 28th 1951. Messrs Mohammad Jameel & Co., (Sind Electric Ginning Factory) Hyderabad Sind. Dear Sir, We beg to confirm the following purchase from you of cotton seed for which bandana (empty bags only) will be supplied by us. Description : Cottonseed N. T. New Crop. Quality & Produce : Fair average quality of the produce of the year 1951/1952. Quantity 15,000 maunds (fifteen thousand maunds). Bharti one maund seers per bag. Equivalent to Mds. 15,000 maunds. Rate 5/8/‑ (Rupees five and annas eight only). Per maund of 40 seers F. O. R. Delivery in S. O. M. compound. Delivery Sept/and .upto 5th October, 19$1 payment at Karachi. Broker : Nathenmal. ARBITRATION Any disputes arising out of this contract shall be referred to the arbitration of two arbitrators, one to be appointed by each party. Delivery at buyers Factory Weighment at Sellers Factory Sd. Syed Babarali for the Sind Oil Mills. Sd. Muhammad Saeed, for Muhammad Jameel & Co." Raza Ali who was produced on behalf of the respondents accepted that the signatures on Exs. 106 and 107 were his but denied that he had sent these two documents to the appellants for signatures in connection with the contracts in dispute. He took up the position that the appellants had got hold of some other contract forms and by erasers and interpolations they had changed them so as to allege that they had been sent to them by the plaintiffs for confirmation of the contracts in dispute. The appellants did not produce in evidence the original contracts in suit which were in their possession. They had not even entered them in the list of documents. They were called upon by the plaintiffs‑respondents to produce them and when they were produced they bore the word "cancelled" upon them. It would be convenient to state here what happened between the parties with respect to the delivery of the cotton seeds. The appellants began giving delivery on 2nd of October 1951. Upto the 31st of October 1951 they had delivered 5,520 maunds. On the 31st of October 1951 the respondents wrote to the appellants saying that they had contracted to supply to them 15,000 maunds of cotton seeds upto the 5th of October 1951 but as yet they had supplied to them 5,310 maunds (210 maunds was delivered after the letter was written on the same day) which was a breach of contract and calling upon them to supply the remaining cotton seeds within two days. On the 1st of November 1951 the appellants wrote to the respondents complaining that payments of the cotton seeds delivered were not being made regularly and that Hundies which were being issued for payment on the Head Office at Karachi were detained by that office for unknown reasons and this was not businesslike. This letter appears to have been sent at a time when the letter of the respondents of the 31st of October 1951 had not yet been received. On the fifth of November 1951 the respondents wrote to the appellants in rely to the letter of the 1st November 1951 saying that the Hundies were being issued regularly and that there was not a single one which has remained unpaid. It was also stated in this letter that the time for performance had expired on 5th October 1951 and that inspite of several reminders on the telephone no attention had been paid to the matter by the appellants, the selectors of the respondents had been attending the office of the appellants daily for the purpose of delivery and that the respondents were not behaving in a businesslike manner. On the 8th of November 1951 the appellants replied to the letter of the respondents of the 31st October 1951. In this letter for the first time the appellants stated that there was no contract between the parties except the oral contract of 6,000 maunds. It would be convenient to reproduce the relevant portion of this letter :‑ "The false allegations of having obtained the contracts for the supply of certain goods are neither genuine nor they ever entered and as such we are not prepared to look forward any response thereon. You are, therefore, requested to be wise and do not waste our time merely in exchange of unwanted corres pondence as we have plainly and clearly advised you and your person that there is not such a commitment." Of course some negotiations were made to enter into certain contracts by your firm to which we showed inability, of completing the same and thus they were never finalised but taken away by your broker and in case you do not realise that then we have got the originals thereof duly cancelled and filed in our records and if you say they are not cancelled, you are requested to submit the office copies of the same within 48 hours hereof failing which the allegations contained in your above letter shall be considered as null and void which please note. In addition to the above, you must be in a position to remember and infer from your records having entered into no contract though you produced‑ the same for signature to our person incharge who rejected the same when it was concluded to enter into a fresh contract for the supply of 6,000 maunds cotton seeds at Rs. 5‑8‑0 per maund." After going through the record we have no hesitation in holding against the appellants on the question of the cancellation of the contracts in dispute. The onus of proving that the contracts had been cancelled was on the appellants and this onus they had hopelessly failed to discharge. In support of their case they have only examined Muhammad Jamil a partner in their firm. Of course they cannot contend that his word alone should be relied upon but they say that he is corroborated by the letter Ex. 82 produced by the respondents, by letter Ex. 125 which is produced by them, and by the two contracts forms Exs. 106 and 107 which are admittedly signed by Raza Ali. They also rely upon the letter dated 8th November 1951 in which they had challenged the respondents to produce their office copies of the contracts. So far as the letter Exh. 82 dated the 6th of September 1951 is concerned it not only does not support the case of the appellants but goes a long way in rebutting it. All that was stated in this letter was that out of the two contracts there was a variation in one only i.e., contract No. 3 and the letter does not at all refer to any cancellation of a contract but on the other hand just asks for confirmation even in respect of Contract No.

3. The appellants wanted the respondents by this letter to confirm that in fact the agreements between the parties were originally entered into at Karachi and that the variation in contract No. 3 was not correct. As we have already stated this letter itself shows that there was a practice of sending the contracts which had been entered into at Karachi for confirmation to the office at Hyder abad. In accordance with this practices copies of contracts Nos. 3 and h appears to have been sent to the appellants by the respondents. There was an error in one of them to which the appellants had taken objection and they wanted the original contract to be confirmed. So far as the other letter is concerned the learned Judge held that this has not been in fact sent and we have not the slightest hesitation in agreeing with that finding. The letter does not even bear any serial number as all other letters sent by the parties do. Learned counsel for the appellants says that this is only an ommission but we do not agree. Reliance is placed upon an entry in, the dak bahi of the respondents but the entry which is the last one on the page has been found by the learned Judge to be a forgery and we agree with him. There is no reliable evidence in support of this entry, and considering the wording of this letter, the wording of Exh. 82 and other circumstances, we have no doubt that this letter was not sent. There are large number of considerations and very weighty ones which support the case of the respondents. The first is the absence of any written contract. It is not possible, under the circumstances of the case, to expect that the parties could have entered into an oral contract without its being reduced into writing. The appellants and the respondents are both firms of some status. The contracts entered into by the respondents bear numbers and we do not expect the appellants also to do business of sale and purchase of cotton seeds involving lacks of rupees without there being any document with respect to it. It is not even the case of the appellants that an entry with respect to this contract exists in their own books. It will be very strange that the firm should have entered into a contract and should have partly performed it without there being any entry with respect to it in its records. Learned counsel for the appellants had to accept before us that once we rule out the existence of an oral contract his case that there was a cancellation of the two contracts in dispute must fail because the appellants had been giving deliveries in respect of some contract and if it was not an oral contracts the contracts which are the basis of the suit will have to be accepted. Then, there was no reason whatsoever why contract No. 6 should be cancelled. In the letter of 6th September 1951 (Exh. 82) variation is mentioned only in respect of contract No.

3. If the respondents had not suggested any variation in respect of contract No. 6 there is no question of its cancellation because according to the case of the appellants cancellation was due to the fact that the original contract as entered into at Karachi were not acceptable to the respondents. It is also to be observed that there is no particular reason as to why the original contract No. 3 entered into at, Karachi should not have been acceptable to the respondents. The alleged variation reduces the quantity to 10,

000. The respon dents are purchasers of cotton seeds because they need it for their factory. There is no particular reason why they must insist on 15,000 being reduced to 10,

000. The other varia tion is in respect of the date of delivery and the variation was that instead of the contract being performed only upto the 5th of October 1951 it was to be performed by the end of October 1951. There is not the slightest reason for the respondents insisting on the alleged variation by which only more time is being given to the appellants for performance. If the original contracts were cancelled there would have to be a writing in respect to such cancellation. The appellants now say that the word "cancelled" was written on the original contracts. The original contracts which they have produced bore the word "cancelled" but it is to be observed that neither in the written statement nor in the statement of Muhammad Jamil in examination‑in‑chief was it stated that the word "cancelled" had been written on the documents themselves. The appellants did not produce the original contracts themselves and had not even entered them in their list of documents. It is only when they were forced to produce them that they put them in Court with the word "cancelled" on them and it is only in reply to a question put in cross‑examination that Muhammad Jamil gave a reply as to the documents having been cancelled. In his examination -in‑chief he had expressly stated that cancellation was by a talk on the telephone and the word "cancelled" he had used not only in respect to Exhs. 127‑128 but even with respect to Exhs. 106 and 107 on which admittedly the word "cancelled" does not appear. There is also the important fact that the appellants received 10,000 empty bags. We are satisfied that on this point the allegations of the plaintiffs are correct. It had been alleged in the plaint that the defendants had received 10,000 gunny bags but had returned only 5,790 bags and the remaining 4, 210 were with the defendants. The defendants replied to these allegations by saying :‑ "Para 4 is denied. No gunny bags have been with held by defendant, nor any gunny bags of plaintiff firm as shown in amended plaint have ever been sent to defendant. It is denied that plaintiff as shown in amended plaint is entitled to recover anything from defendant on this account." Plaintiffs produced their registers, accounts and vouchers supported by abundant oral evidence. There were three vouchers Exh. 55, 56 and 57 relating to the delivery of 10,000 bags. Mohammad Jamil admitted two out of the three vouchers, there by accepting delivery of 7,500 bags. The defendants led no evidence at all in rebuttal and did not produce their own accounts. That the defendants written statement was untrue is proved by the statement of Muhammad Jamil for even if only 7,500 bags were received, there should still be 1,710 bags with the defendants. We have felt no difficulty in holding that the defendants received 10,000 bags but even considering the admission of Muhammad Jamil the plea of the defendants as to an oral contract of 6,000 maunds is false. If the contract was for sale of 6,000 maunds, why did they receive 7,500 gunny bags ? Admittedly one bag contains one maund of cotton seed. Exs. 106 and 107 which are alleged to have been sent to the defendants were found by the lower Court to have been tampered with. That they have been tampered with is obvious and is admitted, the plea being that they were tampered with by the plaintiffs. There are in one of the two‑even erasures and the story that the plaintiffs should have made erasures at the time when they sent them to the appellants is absurd. In view of what has been said above we find the story of cancellation to be untrue and we do not feel the need of entering into a detailed discussion of Exs. 106 and

107. It is clear that prices of cotton seed had risen and the defendants thought fit to back out of the contract. The next point to consider is the amount of damages that are to be awarded for, if we hold that the contracts in dispute have not been cancelled, breach of contract has admittedly taken place. For assessing the amount of damages the date on which the breach of contracts to place has to be determined. It is contended by learned counsel for the appellants that in case of contract No. 3 breach took place on 5th October 1951 which was the last date of delivery. True, this was the date of delivery as provided in the contract but it was open to the plaintiffs appellants to extend time for delivery and if the defendants accepted the extension and were willing to perform the contract, breach will take place either on the failure of the defendants to perform the contract within the extended time or on their refusal at any earlier time. It is clear on the evidence that the plaintiffs had extended time and the defendants had accepted it. The delivery took place till the 1st November 1951. On the 31st October the plaintiffs had written to the defendants (Exh. 109) saying that the cotton seed should be supplied within two days. The letter (Exh. 83) written by the defendants on 1st November 1951 shows they were willing to give delivery. On 5th November 1951 the plaintiffs wrote to the defendants (Exh. 90) in which they said that the defendants were not be having in a business like manner and that their selector was attending the office of the defendants daily. The fact that the selector was attending daily and the contents of this letter show clearly that the plaintiffs were still prepared to take delivery. It is only on the 8th of November 1951 that the defendants for the first time repudiated the agreements and refused to perform them and it is on this date that breach occurred. The respondents were entitled to purchase the cotton seed in the market and to recover the loss from the appellants. The respondents have produced evidence to show that they purchased 5,000, maunds of cotton seeds from Friends Cotton Co., Tando Allahyar on 15th November 1951 at Rs. 6‑10‑0 per maund, 10,000 maunds from Seomal Assomal of Tando Jam on 15th November 1951 at Rs. 6‑12‑0 per maund and 25,000 maunds from Hyderi Cotton Factory, Dhoronaro, on 20th November 1951 at Rs. 6‑12‑0 per maund. Noor Muhammad, an employee of the plainfffs had made a detailed statement with respect to these purchases which is supported by Kabalas and the account books of the plaintiffs Raza Ali, Manager of the plaintiffs has made a similar statement. The statements of Raza Ali and Noor Muhammad or supported by the employee of the sellers. Ali Ahmad, Manager of the Friends Cotton Co., Hemandas, Assistant Manager, Seomal Assomal Factory and Abdus Sattar, Manager of the Hyderi Cotton Factory have proved the sales and actual supplies as well as the execution of the Kabalas by which the sales were effected. There is nothing to rebut this evidence and we agree with the lower Court in holding that purchases by the plaintiffs as alleged have been proved. In accordance with the purchases (adding the amount of transport charges) the respondents would be entitled to the amount they claim as damages. Even apart from the purchases the respondents would be entitled to the amount they claim. Even if they had not made any purchases they would be entitled to the difference between the market price and the price agreed upon between the parties. In case of a breach of contract by the seller the purchaser is entitled to make purchases in the market and to recover the difference from the seller. But he is not bound to do so and is entitled to the profit which he would have earned by a sale of the goods in the market if the goods had been delivered to him. We have found that the breach of contract took place on 8th November 1951. According to the statement of Jeo Singh, Accountant Pakistan Merchants Association, the rate of N. T. Cotton Seed (this is admittedly the cotton seed in dispute) was Rs. 7‑12‑0 per maund at Karachi. There would be a difference in the rates of Karachi and Hyderabad, but the difference would not exceed the railway freight. Thus calculated, the respon dents would be entitled to even more than they have claimed. Learned counsel for the appellants contends that we should not consider the railway freight but cost of transport by trucks. We do not see why the railway freight would not be a proper criterion of difference but we do not accept that even the cost of transport by trucks for a distance of 120 miles would be such as to diminish the amount of damages claimed. There is nothing on the record to prove the cost of such transport. There only remains the amount claimed for gunny bags. We have already discussed this matter in connection with the question of cancellation of contracts and have held that 10,000 gunny bags were received by the appellants and only 5,790 were returned. This appeal is dismissed with costs. A. H. Appeal dismissed.