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TMI Blog1929 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... y previous date on which the depot might leave Jullundur permanently. The quantity to be supplied daily was one seer of crushed gram, two seers of ardawa (barley) and one seer of bran per horse for which the contractors were to be paid at ₹ 12-4-0 per horse per month of 30 days. The Officer Commanding the depot was to furnish the contractors with the approximate initial requirements for a fortnight and payments were to be made monthly on the first day of each succeeding month. There was a further stipulation that: if the authorities concerned allow, passes for octroi and letters to the railway authorities for the supply of waggons will be granted to the contractors and in the absence thereof supply will be paid at the local current rates. 3. The plaintiffs stated in the plaint that they had been paid for the supplies made during the first three months, (June, July and August 1920) and that the accounts for this period had been finally settled. They alleged that for the grain supplied from 1st September 1920 to 31st March 1921 they were due ₹ 18,048-3-6. Adding to this sum ₹ 137-4-0 as the price of 366 empty bags not returned by the depot, and ₹ 573-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has argued substantially four points before us: (A) Whether Government had undertaken to maintain the horses for which the grain was supplied. (B) Whether Major Somerville had legal authority on behalf of the Secretary of State to enter into the contract in question; (C) It (A) is found against the Secretary of State and (B) in his favour, whether he is equitably bound to pay compensation to the plaintiff's for the grain actually delivered to the Officer Commanding and consumed by the horses and (D) Whether the accounts for the supplies made in June, July and August 1920 for which payments in full had already been made can be reopened in view of certain admissions made by the plaintiff in the course of a criminal case instituted by the Officer Commanding the XI Lancers against Tara Singh and Ganga Ram of the plaintiff's firm, under Section 420, I.P.C. 9. It is common ground between the parties that the XI (K.E.O.) Lancers was one of the regiments which were originally organized on what is known as the silladar system. An account of the origin and growth of that system and the modifications made therein from time to time, will be found at p. 91, et seq of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which are inevitable concomitants of war, must obviously be made good at the expense of the country. This was adjusted by payment to Government the monthly cuttings normally paid in peace to the regiment. In return Government accepted the entire responsibility for maintenance during war, and of returning the regiment with its full complement of serviceable horses and equipment on the termination of the campaign. 11. (Army in India and its Evolution, pp. 92-93). Accordingly with the outbreak of the Great War the maintainance of the silladar regiments was transferred to the State , so as be avoid difficulties in the general maintainance of the regiments in the field and the administration of their depot in India . The system having completely thus broken down during the War and undergone such radical changes, Government decided early in 1920 to formally abolish it and reorganize the regiments on a different basis altogether. 12. In the earlier part of his arguments before us, the learned Government Advocate urged that the liability of the men of the depot of the XI Lancers to maintain their horses, during the period with which we are concerned in this case, must be judged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is successor-in-office also. In the absence of any data on the point, it is not possible for the Courts to accept the bare ipse dixit of the witness, that he was acting as the agent of the sowars. Indeed, he himself admitted that he signed the contract in his official capacity as Officer Commanding the depot and that his successor would be bound by the contract so long as the depot was supplied by the contractors. 13. The learned Government Advocate eventually took up the position that the horses appear to have been purchased and fed out of Regimental Funds , that they were not Government property and, therefore, the Secretary of State in Council, was not liable to maintain them. It is, however, most unfortunate that proper materials, which might have thrown light on this matter, have not been placed on the record by his clients, who had or must have had full knowledge of the real facts. The books kept in the depot, if produced would have made it clear by whom and at whose expense the horses in question had been purchased, who was liable, under the rules then in-force to maintain them, wherefrom the funds for their maintenance came and what control the Secretary of State exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Government and that Major Somerville purported to act as in his official capacity as Officer Commanding the depot, and not on behalf of the sowars. 15. But this finding does not dispose of the case against appellant 1. The first question to be decided is whether Major Somerville as the Officer Commanding the depot was legally authorized to enter into a binding contract on behalf of the Secretary of Skate. Section 2, East India, Contracts Act (33 and 34 Vice-cap. 59), which has since been re-enacted as Sub-section (2) Section 30, Government of India Act, of 1919, provides in clear terms that every contract made in India on behalf of and in the name of the Secretary of State in Council shall be executed by such person and in such manner as the-Governor General in Council by resolution directs or authorises, and if so executed, may be enforced by or against the Secretary of State in Council for the time being. There can be no manner of doubt that this provision of the law is mandatory and not merely directory and must be strictly complied with in order to constitute a valid contract with defendant 1. Now by virtue of the power vested in the Governor-General-in-Council under the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It is well known that this section is much wider than the English Law and goes far beyond it, see Damodara Muduliar v. Secy. of State [1895] 18 Mad. 88, and Jarao Kumari v. Basanta Jumar Roy [1905] 32 Cal. 374. This and many other provisions of the Contract Act are, no doubt, founded on English Law but as has been pointed out by Lord Sinha while delivering the judgment of their Lordships of the Privy Council in Mt. Ramanandikuar v. Mt. Kalawati Kuer A.I.R.1928 P.C.2 in interpreting the statutory provisions of an Act of the Indian Legislature: the Courts should examine the language of the Indian Statute uninfluenced by any consideration derived from the English Law upon which it may be founded. 18. Similarly Lord Atkinson observed in Chunna Mal Ram Nath v. Mool Chand Ram Bhagat A.I.R.1928 P.C.99 that the language of a section of the Contract Act ought not to be enlarged by any implications of English doctrines. Numerous instances of the application of Section 70 to circumstances similar to those of the case before us will be found in Indian Reports. In Mathura Mohan Saha v. Ram Kumar Saha [1916] 43 Cal.790 a certain contract with District Board of Chittagong was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the remarks of Jenkins, C.J., in Suchand Ghosal v. Balaram Nardana [1911] 38 Cal. 1 and Damodara Mudaliar v. Secy. of State [1895] 18 Mad. 88 where under converse circumstances the Secretary of State recovered from a private individual compensation under Section 70. 20. As to the amount of compensation, it is obvious that it must be assessed at the market rate3 prevailing on the dates on which the supplies were made. It was conceded that, taken a3 a whole, the sum so due would be larger than the amount claimed by the plaintiff according to the price fixed in the agreement. I would therefore hold that though the plaintiffs could not recover the price of the grain supplied on the contract, as such, they were certainly entitled to the return of the grain in question, but as it could not be restored having bean consumed long ago, they must get its money equivalent as compensation under Section 70. 21. It now remains to consider the last point raised by the Government Advocate that his client was entitled to reopen the accounts for the supplies made in June, July and August 1920, for which payment in full had been made before the suit and which the plaintiff had not included in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government Advocate I find myself wholly unable to accept this contention. It is absurd to suppose that it could have been intended that reduced rate would be charged simply because the Officer Commanding had given ineffective letters of request to the railway authorities which the latter could not comply with. The intention clearly was that reduced rates would be charged if the military authorities arranged for the supply of waggons to the plaintiffs for the import of grain from out-station markets where it could be purchased at cheaper rates; otherwise the plaintiffs would purchase locally and be paid at the market rate prevailing there. The lower Court has, in my opinion come to a correct conclusion on this point and I would uphold its finding. 23. For the foregoing, reasons, I am of opinion that the decree passed against the Secretary of State must be affirmed and his appeal dismissed. 24. The learned Judge of the Court below has passed a decree against the Officer Commanding the V (K.E.O.) Probyn's Horse, appellant 2, but, on the findings given above, I do not see how that officer can be made liable. Mr. Jagan Nath for the respondents drew our attention prominently t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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