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TMI Blog1980 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany through a letter dated the 8th/10th of November, 1944 (exhibit 16) to deliver the same to the U.P. Registered Stock Holders Association Kanpur (for short the Association). In relation to the recovery of price of the material the letter stated : Your bill for cost of the material supported by original receipts from suppliers should be made out in the name of Iron and Steel Controller, Calcutta, and submitted to this office. Please make out a separate bill for handling, storage expenses, etc., and send to this office supported with original freight and payee's receipt. The order contained in letter exhibit 16 could not be implemented on account of lack of transport facilities. The Kanpur Controller therefore directed the plaintiff company to deliver the surplus steel to M/s. Govan Brothers Ltd., Rampur (hereinafter referred to as G. Brothers) and to this extent the order contained in letter exhibit 16 stood modified. The plaintiff company delivered to G. Brothers the surplus material lying with it between the 11th April, 1945 and 30th of April, 1945. The deliveries totalled 135 tons, 6 cwts., 1 quarter and 1 pound, the price whereof amounted to ₹ 43,728-6-6 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gatived by the trial court. Some other findings were also arrived at which are not relevant for the purposes of this appeal. The trial court therefore decreed the claim of the plaintiff company in full and also directed that it would be entitled to the costs of the suit as also interest at the rate of 3 percent per annum from the date of the institution of the suit to the date of payment. 5. When the first appeal came up for hearing before the High Court the contention based on the provisions of Section 17(2) of the Defence of India Act was reiterated on the ground that the suit was one for damages or compensation. Section 17(2) states : Save as otherwise expressly provided under this Act, no suit or other legal proceeding shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rules made thereunder or any order issued under any such rule. The High Court agreed with the learned Counsel for the defendant that this section would be a complete bar to the suit if it was one for damages or compensation but held that the suit was not of that nature and, on the other hand, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant that throughout the period during which the Kanpur Controller dealt with the matter in dispute he was exercising the powers conferred on him under the Iron and Steel Control Order, 1941, that under Clause 5 of that order the plaintiff company could dispose of its stock of steel only in pursuance of a written direction from the Kanpur Controller and that the mandate issued by the Kanpur Controller to the plaintiff company requiring the latter to deliver the goods to G. Brothers having been found to be an oral one, the whole transaction fell outside the ambit of the law so that the Union of India could not be bound by it. The argument as it stands does not lack plausibility although it would be a question whether the word 'written' occurring in Clause (5) of the Indian Iron and Steel Control order is directory or mandatory. However we refuse to allow the argument to be raised and that for two reasons. Firstly, it is a mixed question of fact and law which was never raised in the courts below. Secondly, the plea taken in paragraph 4 of the written statement filed by the defendant was categorically to the effect that the fresh instructions issued to the plaintiff are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The inference which may reasonably be drawn from the contents of the letter is that the Kanpur Controller was dealing with the goods as if they belonged to the Government of India whose duly it was to pay for them when they changed hands, and that the identity of the party to whom the goods were to be delivered by the plaintiff company under the orders of the Kanpur Controller was immaterial. Secondly, the Kanpur Controller (Mr. R.R. Chari) in his deposition dated the 24th of June, l946 made before the Second Special Tribunal, Lahore (Camp Bombay) in Criminal Case No. 3 of 1946, stated thus: In September, 1944, J.K. Gas Plant Manufacturing Co., Rampur, Ltd., handed over 137 tons of iron and steel to Messrs. Govan Brothers, Rampur, under instructions from our Department . Messrs Govan Brothers thus held the materials on behalf of the Government. It has been urged by learned Counsel for the defendant that this statement is not admissible in evidence as it was not made at the trial of the case in hand. But it is too late in the day for such an objection to be entertained. The statement was admitted in evidence as exhibit 15 at the trial presumably without objection and cannot n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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