JUDGMENT Mcnair, J. - This suit was originally instituted by the Mitsui Bhusan Kaisha, Ltd., a company incorporated in Japan and carrying on business in Calcutta. That company sued the Star Paper Mills, Ltd., for damages for breach of 2 contracts for the sale of bleaching powder. The contracts were dated the 17th and 22nd November, 1939, by which the Japanese company agreed to sell to the Defendant company 200 tons in all of bleaching powder, shipment December, 1939, and/or January, 1940, at the sellers' option. The contracts further provided "quality 35 per cent, to 37 per cent. Chlorine at the time of shipment, to be final." By mutual consent, the quantity under each contract was reduced to 50 tons, shipment January, 1940. The conditions of sale provided that the buyers should raise no objection in case the goods are shipped within 15 days after shipment months. Cl. 8 of the conditions of sale was as follows: Any claims, objections on account,'of damage, difference, inferiority or dispute in quality, shortage, excess, difference in quantity or measurement or defect shall be submitted by the Buyers in writing within one week after the arrival of the goods in port whether it is c. i. f. ex-jetty or ex godown terms, but Buyers agree that no claim will be entertained unless the Buyers have first paid for the price of the goods in fall on presentation of shipping documents or delivery order. The Buyers have no right to raise any objection or to demand survey after the lapse of the said one week, bat it shall be optional with the sellers to do what they deem fit. 2. Cl. 6 of the contract empowered the sellers in case of default by the buyers to resell the goods at their absolute discretion. The goods appear to have been shipped in terms of the contract, and on the 3rd April, 1940, the Japanese company informed the Defendant company of the expected date of arrival of the goods, namely, the 26th April, 1940. On the 8th May they presented the shipping documents and demanded payment. 3. The Defendant company on the 15th April wrote that before they took delivery they wanted to be satisfied that the goods were of the proper shipment and of the strength (of the power) (sic) contained in the order. They desired a survey by Messrs. Briggs & Co. On the 8th May they presented the shipping documents and demanded payment. 3. The Defendant company on the 15th April wrote that before they took delivery they wanted to be satisfied that the goods were of the proper shipment and of the strength (of the power) (sic) contained in the order. They desired a survey by Messrs. Briggs & Co. and stated that they would withhold payment in the meantime. The Plaintiff company replied on the following day referring the buyers to the clauses of the contract providing for payment prior to the raising of any objection regarding quality. They also stated that sale notes provided that 35 per cent, to 37 per cent, chlorine at the time of shipment shall be final, and that the manufacturers' certificate of analysis could be inspected. 4. Further, to satisfy the buyers they had the goods analysed by Briggs & Co. and the buyers failed to attend when samples were taken for analysis. 5. The market had fallen considerably since the date of the contract. 6. There was further correspondence in which the Defendant company contended that the goods, according to the manufacturers' report, had been analysed long before shipment, and the analysis had not indentified the goods shipped with the goods that had been analysed. 7. Eventually, the goods were re-sold on the 4th June, 1940, on notice to the Defendant company, and the sellers claimed from the buyers a sum of Rs. 44,359-9-0, being the difference on re-sales. 8. The suit was filed on the 15th July, 1940, by the Japanese company, and after the commencement of hostilities with Japan on the 8th December, 1941, the plaint was amended, the Deputy Custodian of Enemy Property, Calcutta Circle, being substituted in place of the Mitsui Bhusan Kaisha, Ltd,. as the Plaintiff. The amended plaint contained the following clause: (9) "On the outbreak of War between Britain and Japan the business of the said company which is incorporated in Japan and has its Head Office at Tokio. as the Plaintiff. The amended plaint contained the following clause: (9) "On the outbreak of War between Britain and Japan the business of the said company which is incorporated in Japan and has its Head Office at Tokio. has been placed under supervision of the Plaintiff under Rule 107 (a) of the Defence of India Rules and by virtue of a Government Notification published in the Gazette of India dated the 29th June 11940 the business and property; of the said company has vested in the Custodian of enemy property for British India which includes any Deputy Custodian of enemy property authorised by the said Custodian. The Plaintiff has by a general power of attorney dated 9th November, 1941, been authorised to institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts claims or liabilities. In the premises the Plaintiff has by devolution of interest become entitled to continue the suit and with the leave to the Court desires to continue it. 9. The goods were in fact analysed by Messrs. Briggs & Co., in May, 1940, at the instance of the sellers, and Monsieur Breuleux, a director of that company, has given evidence to the effect that the chlorine content of the goods was 33.7 per cent. on the date when samples were drawn. From experience Monsieur Breuleux had found that in India the chlorine content decreased about 1.4 per cent. per month, and he estimated that the chlorine content at the time of shipment must have been about 38 per cent. 10. The Defendant company have called no evidence, and their main argument has been directed to the question whether the Custodian or Deputy Custodian of Enemy Property is entitled to continue the action against them. 11. The following issues were framed: 1. Was the claim of Mitsui Bhusan Kaisha, Ltd., capable of being vested in the Plaintiff? 2. If so, was the said claim vested in the Deputy Custodian of Enemy Property, and is he entitled to continue the suit ? 3. Were the goods shipped in terms of the contract ? 4. Was the resale a proper resale as contemplated by the contract ? 5. To what damages, if any, is the Plaintiff entitled ? 6. 2. If so, was the said claim vested in the Deputy Custodian of Enemy Property, and is he entitled to continue the suit ? 3. Were the goods shipped in terms of the contract ? 4. Was the resale a proper resale as contemplated by the contract ? 5. To what damages, if any, is the Plaintiff entitled ? 6. Is the Plaintiff entitled to raise issue No. 3 in view of his failure to pay for the goods prior to objection, as provided by Cl. 8 of the contract ? 12. The first question that arises is connected with the first two issues. This depends upon the construction of the Defence of India Act and the various rules and orders thereunder. 13. On the 3rd September, 1939, on the outbreak of war with Germany, the Defence of India Ordinance and the rules thereunder were promulgated. 14. On the 29th September, 1939, the Defence of India Act, 1939, was passed, having retrospective effect from the 3rd September. Sec. 2 of the Act empowers the Central Government to make rules, and sec. 2 (2) provides that without prejudice to the generality of the powers conferred by sub-sec. (1), the rules may provide for, or may empower any authority to make orders providing for, various matters which are set out under the sub-clauses of that sub-section. 15. Rule 114 has been framed under sec. 2 of the Defence of India Act, and provided that, with a view to preventing the payment of monies to an enemy firm and preserving enemy property in contemplation of arrangements to be made at the conclusion of peace, the Central Government may appoint one or more Custodians of Enemy Property and may by order (a) require the payment to the prescribed custodian of money which would but for these rules be payable to or for the benefit of an enemy firm.... (b) vest or provide for and regulate the vesting in the prescribed custodian such enemy property as may be prescribed. 16. For the words "one or more Custodians of Enemy Property," the words "A Custodian of Enemy Property for British India and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed," were substituted by a notification dated the 3rd October, 1939. 16. For the words "one or more Custodians of Enemy Property," the words "A Custodian of Enemy Property for British India and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed," were substituted by a notification dated the 3rd October, 1939. By the same notification, a sub-r. 3 (A) of r. 114 was published providing that the expression " Custodian " includes a Deputy Custodian of Enemy Property. 17. Rule 114 empowers the Central Government to make orders and, under that power, on the 14th October, 1939, the Central Government made the Enemy Property (Custody and Registration) Order, 1939. That order gives a definition of "Custodian" as including any Deputy or Assistant Custodian of Enemy Property authorised by the Custodian. It defines "enemy" as "any person whose property for the time being vested in the Custodian by an order made under Rule 114 of the Defence of India Rules." 18. Cl. (5) of that order provides for the payment to the Custodian or such person as may be authorised by him, of any money payable by way of dividend, interest, share of profits or otherwise, to or for the bend of an enemy. 19. Cl. (4) defines the powers of the Custodian for preserving enemy property vested in him which include the power to take action for recovering any money due to the enemy and the power to institute, defend or continue any suit or other legal proceeding and to compromise debts, claims or liabilities. 20. On the 25th June, 1940, the Central Government by notification in effect directed that all property in British India movable or immovable appertaining to an enemy firm should vest in the Custodian of Enemy Property for British India. Sub-cl. (2) of that notification empowered the Custodian to delegate to any branch manager of enemy firms the powers which he was entitled to exercise by the Enemy Proper (Custody and Registration) Order, 1939. 21. On the first issue it has been argued that the claim of the Mitsui Bhusan Kaisha, Ltd., being a claim for unliquidated damages was not property and could not vest in the Controller or Deputy Controller of Enemy Property, and reference was made to the Transfer of Property Act which provides in sec. 6 (e) that a mere right to sue cannot be transferred. 22. 6 (e) that a mere right to sue cannot be transferred. 22. It was pointed out that on the outbreak of war with Japan the Mitsui Bhusan Kaisha Co., being an alien enemy could not maintain or continue the suit which would probably remain in abeyance until the conclusion of hostilities. 23. Learned Counsel for the Defendant company conceded that the Crown or the Central Government can take possession of an alien enemy's goods or debts but he argued that no right existed in the Crown or in the Central Government to take over a mere actionable claim, such as the present, in a suit for unliquidated damages. Such a claim is not a debt. In support of this argument Learned Counsel referred to the marginal note to Rule 114 of the Defence of India Rules which is as follows: The collection of debts of enemy firms and custody of property. 24. From the marginal note he argues that the Custodian's powers are confined to the collection of debts, and that he is not empowered to take over a mere actionable claim. 25. It is doubtful whether marginal notes can be referred to for the purpose of construing an Act. Lord Macnaughten in the case Balraj Kunwar v. Jagat Pal Singh L. R. 31 I. A. 132 at p. 142 and 143 S C. 8 C. W. N. 699 (1904) says, "It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greater authority than the marginal notes in an English Act of Parliament." Those words appear to me very clearly to forbid reference to the marginal notes for the purpose of construing the Act. This rule of construction however has been criticised and distinguished by learned Judges of this Court and of the High Courts of Allahabad and Bombay. The principle on which the distinction has been made depends on whether the marginal note has been inserted under the authority of the Legislature, or merely by an irresponsible person without the knowledge of the Legislature. The principle on which the distinction has been made depends on whether the marginal note has been inserted under the authority of the Legislature, or merely by an irresponsible person without the knowledge of the Legislature. There is no evidence with regard to these Rules as to whether the marginal notes have been framed by the Central Government, or whether they were added at the time when the Rules went to press. There are no facts on which to reach the conclusion that the marginal notes were inserted by the draftsman at the time when the Rules were drafted, or that they have been noted by the Central Government before the Rules were passed. Assuming however that reference may be made to the marginal notes, it would undoubtedly be undesirable to construe the definite words of the Rule in a manner which is not justified by those words solely because the marginal note may suggest a different construction. The marginal note to Rule 114 was apparently an attempt in as few words as possible to give the general outline of the matters dealt with by the Rule, and I find that the marginal notes have been used in the " Contents " of the Defence of India Rules to enable an inquirer to find with the least delay the particular subject-matter of the Rules in which he is interested. It would in my opinion be entirely unjustified to confine the word " property " which has been used in Rule 114 to " debts " which is the word used in the marginal note. 26. Rule 114 covers nearly three pages of the printed Rules as published by the Government of India, and the marginal note was apparently an attempt by the draftsman, or possibly by the manager of publications, to state in as few words as possible the general gist of the Rule. 27. Turning to Rule 114 we find that the object of the Rule is to prevent the payment of moneys to an enemy firm, and to preserve enemy property in contemplation of arrangements to be made at the conclusion of peace. In furtherance of these objects the Central Government may order the vesting of enemy property in a Custodian. 27. Turning to Rule 114 we find that the object of the Rule is to prevent the payment of moneys to an enemy firm, and to preserve enemy property in contemplation of arrangements to be made at the conclusion of peace. In furtherance of these objects the Central Government may order the vesting of enemy property in a Custodian. The marginal note cannot be said to be an accurate summary of the words of the Rule though it gives indication of some of the matters with which the rule deals. The word used in Rule 114 is "property," and property is definitely a wider term than debt. The right which the Deputy Custodian claims is the right to carry to its conclusion the claim of an enemy company to recover damages for breach of contract. If damages are recovered, then the sum for which the decree is given will vest in the Custodian in contemplation of arrangements to be made at the conclusion of peace. That right has been referred to as a "chose in action." The meaning of the expression "chose in action" has been analysed by the Court of Appeal in the case of Colonial Company v. Whinney L. L. 30 Ch. Div. 261 (1885). Cotton, L. J., in his judgment on page 275 of the Report, refers to the definition by Mr. Joshua Williams in his book on personal property, where he says: Although there was formerly "no such thing as an incorporeal chattel personal, there existed not unfrequently a right of action, or the liberty of proceeding in the Courts of law either to recover pecuniary damages for the infliction of a wrong or the non-performance of a contract, or else to procure payment of money due. Snob a right was called, in the Norman. French of our early lawyers, a chose or thing in action. 28. The learned Lord Justice then points out that, with the passage of time, things which did not originally come within the description applicable to choses in action, acquired that name, such as shares in joint-stock companies and patents. 29. At page 283 of the Report, Lindley, L. J., says: The term 'chose in action' has then no doubt, whatever its original meaning may "have been, come to be used as denoting a certain class of property. 30. 29. At page 283 of the Report, Lindley, L. J., says: The term 'chose in action' has then no doubt, whatever its original meaning may "have been, come to be used as denoting a certain class of property. 30. We find in our own insolvency law that "things in action" form part of the "property" of the insolvent and vest in the Official Assignee. In the judgment of the Privy Council, reported in Mayappa Chetty v. Supramanian Chetty L. R. 43 I. A. 119: S. C. 20 C. W. N. 833, 888 (1916), we find the following: The personal property of the [testator, including all rights of action, vests in the executor upon the testator's death. 31. It seems to me quite clear, therefore, that when the word "property" is used, as it is used in Rule 114, the intention of the Central Government was that all enemy property, including a chose in action or a right to obtain damages, should vest in the Custodian. The object undoubtedly is to prevent the fruits of a successful action from finding their way to the enemy and to prevent the loss of potential assets which might be set off against British claims. Any fruits of action which may be recovered by the Custodian will be preserved in contemplation of arrangements to be made at the conclusion of peace, which, presumably, means that they will be set off against debts due front the enemy. 32. In this connection reference was made to the case of Flindt v. Waters [1812] 15 East. 260, where a British subject as trustee for an enemy alien was held entitled to sue for a debt, on the ground that, if the enemy subject had sued his right of action would have been suspended temporarily until the conclusion of hostilities, but that if the trustee were denied the right to sue, such denial would have been a perpetual bar to the right of suit, inasmuch as he was a British subject. The same principle appears to be applicable in regard to the vesting of enemy property in the Custodian as is adopted in the case of the vesting of an insolvent's property in the Official Assignee. The same principle appears to be applicable in regard to the vesting of enemy property in the Custodian as is adopted in the case of the vesting of an insolvent's property in the Official Assignee. The Crown takes measures to obtain possession of "every beneficial matter" belonging to the enemy within its territory, so that on the conclusion of hostilities, the assets which have been collected may be set off against the liabilities. 33. On this principle it was held in Wright v. Fairfield 2 B. & Ad. 727 (1831) that the assignees of a bankrupt were entitled to recover unliquidated damages for non-performance of a contract with the bankrupt, the right to those damages having accrued before the bankruptcy. 34. The Court was construing the words of an English Statute, but in arriving at their decision the learned Judges were guided by the principle which appears to me relevant to the present enquiry. If it were held (said Tenterden-C. J), that a 'claim of this kind did not vest in the assignees, the consequence would be, that a right to damage, which would have been highly beneficial to the estate, might be re-leased by the bankrupt. 35. To the same effect are the words of Parke, J.: The right of action here claimed passes.......either as personal estate of the Bankrupt or as a debt due to him. It is true that on a rigid construction, neither of these terms may be precisely applicable but the statute is to be construed beneficially for creditors; and the subject matter of this 'action, if not strictly a part of the estate, is something which, (when recovered, will be for the benefit of the estate. 36. Mr. N. C. Chatterjee for the Defendant Company seeks to find an analogy between the Defence of India Act and Rules, and the English Trading with the Enemy Amendment Act of 1914, and refers to the case of In re: Bank fur Handel und Industrie [1915] 1 Ch. 848, where it was held that a debtor to an alien enemy was not a person who holds or manages for or on behalf of an enemy any " property " within the meaning of the relevant section and rules so as to entitle him to a vesting order unless he admit the debt. 37. 848, where it was held that a debtor to an alien enemy was not a person who holds or manages for or on behalf of an enemy any " property " within the meaning of the relevant section and rules so as to entitle him to a vesting order unless he admit the debt. 37. Warrington, J., was of opinion that the English Act pointed to some specific property which could be vested in the custodian and not merely to a litigation. In that case the applicants were a firm of stock-brokers, named Seligman and Weinberger, in whose favour a German firm had endorsed a cheque drawn to their order by a German bank on an English Bank. The English Bank stated on affidavit that the German Bank were not only not in credit but were indebted to them. Under the English Act vesting in the Custodian can only be by order of the Court and provided the Judge is satisfied that such vesting is expedient for the purpose of the Act. The learned Judge in the exercise of his discretion refused the order prayed for, and ordered the applicants to pay the costs of the Custodian who appeared on the summons. 38. It was only in the consideration of the question of costs that the words now relied on were used. They were used in relation to the particular words of the order then being construed. This is abundantly clear from a reference to p. 853 of the report. Under the Indian Act and Rules the Court has no discretion; the vesting, if it occurs at all, occurs by reason of the existence of the prescribed conditions. In my view the word property is wide enough to include not merely debts but every beneficial matter which an enemy is capable of holding, including the right to sue for damages for breach of contract. 39. It is then argued that if Rule 114 vests in the Custodian a mere right to sue for damages, the rule is ultra, vires, for such a right is not contemplated by sec. 2 of the Act on which Rule 114 is founded. 40. 39. It is then argued that if Rule 114 vests in the Custodian a mere right to sue for damages, the rule is ultra, vires, for such a right is not contemplated by sec. 2 of the Act on which Rule 114 is founded. 40. Sec. 2 (1) provides that the Central Government may, by notification in the Official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. 41. Sec. 2 (2) reads: Without prejudice to the generality of the powers conferred by sub-sec. (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matter, namely.............(xxiv) the requisitioning of any property, movable or immovable, including the taking possession thereof and the issue of any orders in respect thereof. 42. For myself, I find some difficulty in seeing how this particular clause is applicable, but I have no doubt that r. 114 could be framed under sec. 2 (1) for the "efficient prosecution of the war," or, alternatively, under sec. 2 (2) (iv) " preventing anything likely to assist the enemy," as e.g., if the claim were compromised with a nominee of the enemy firm. Assuming, however, that the governing power is sec. 2 (2) (xxiv), the words there are "any property movable or immovable," and in my view, movable property includes a chose in action or a right to sue. Sec. 2 (1) is a general section giving power to make rules in the furtherance of certain objects. 43. Sec. 2 (2), which contains the words " Without prejudice to the generality of the powers conferred by sub-sec. (1)....." in no way cuts down or limits the powers conferred by sub-sec. (1) but illustrates end defines some of the subject-matter in respect of which rules may be framed. Sec. 2 is of no assistance in determining this question. It merely provides that rules and orders can be validly framed under the Defence of India Act even though their provisions may be consistent with other Acts. 44. I hold that Rule 114 is validly framed under the rule-making powers conferred on the Central Government by sec. Sec. 2 is of no assistance in determining this question. It merely provides that rules and orders can be validly framed under the Defence of India Act even though their provisions may be consistent with other Acts. 44. I hold that Rule 114 is validly framed under the rule-making powers conferred on the Central Government by sec. 2 of the Defence of India Act. 45. It is next argued that assuming power to sue is validly vested in the Custodian of enemy property no such power can be transferred or delegated to the Deputy Custodian. 46. Rule 114 as originally framed referred to "one or more custodians of enemy property." Rule 114 (1) (b) empowered the Central Government by order to " vest... in the prescribed custodian such enemy property as may be prescribed." 47. On October 3rd, 1939, the words " one or more custodians of enemy property "were deleted, and the words" a custodian of enemy property for British India, and one or more Deputy Custodians and Assistant Custodians of enemy property for such local areas as may be prescribed" were substituted in sub-r. (1) and on the same date sub-r. (3a) was made providing that the expression "Custodian" includes a "Deputy Custodian" and an "Assistant Custodian." Rule 114 (1) (b) remained unchanged. 48. The Central Government by the notification of the 25th June, 1940, directed that all property in British India movable or immovable.... shall vest in the Custodian of enemy property for British India with power to him to delegate his powers to a branch Manager. 49. It is argued that Government had power to vest property only in the "prescribed custodian," and, having selected the custodian as the prescribed custodian, they were incapable of vesting property in any other custodian. 50. In view of the provision of the notification mentioned above which provides that "Custodian" includes Deputy Custodian this argument appears to me untenable. 51. Finally it is argued that the Deputy Custodian in paragraph 9 of his plaint bases his right to sue on Rule 107 (A) of the Defence of India Rules which gives the Controller of suspected enemy firms certain powers of supervision over such firms. 52. On November 15th, 1941, the present Plaintiff was by notification appointed Deputy Custodian of enemy property and Deputy Controller of enemy firms. 52. On November 15th, 1941, the present Plaintiff was by notification appointed Deputy Custodian of enemy property and Deputy Controller of enemy firms. This was prior to the outbreak of war with Japan, and so, prior to the time when Mitsui Bhusan Kaisha became an enemy firm. 53. No assistance to his status can be derived from a mere press notice dated February 5th, 1942, which has been tendered and which states that all property of Mitsui Bhusan Kaisha, amongst other Japanese firms, is vested in the Custodian of enemy property. Nor can reliance be placed on a power of attorney dated the 9th November, 1941, and referred to in the same paragraph of the plaint by which the Custodian authorises the Deputy Custodian to exercise all powers with which the Custodian is vested by the Enemy Property (Custody and Registration) Order including the power to institute or continue suits. 54. The power of attorney refers only to property which has vested in the Controller, and on the 9th November, 1941, no Japanese property had so vested. 55. On the other hand the authority (Ex. G) dated the 29th August, 1942, was conferred on the Deputy Controller many months after the order of February 18th, 1942, giving leave to amend the plaint and to substitute the Deputy Custodian as Plaintiff. 56. The right of the Deputy Custodian appears to me to be derived from the Rules themselves. We find first the Ordinance of September 3rd, 1939, on the outbreak of war with Germany. The Defence of India Act on the 29th September, 1939, repealed the Ordinance and made the Act and the Rules operative as from September 3rd. Rule 114, sub-r. (3A)on the 3rd October, 1939, provided that a Custodian included a Deputy Custodian. 57. On the 14th October, 1939, the Custody and Registration Order defined the powers of the Custodian which by sub-r. (3A) would mean also the powers of a Deputy Custodian, and on May 18th, 1940, included among those powers the power to continue any suit. 57. On the 14th October, 1939, the Custody and Registration Order defined the powers of the Custodian which by sub-r. (3A) would mean also the powers of a Deputy Custodian, and on May 18th, 1940, included among those powers the power to continue any suit. The Notification of June 25th, 1940, provided that all enemy property, movable or immovable, should vest in the " Custodian " which again would include the Deputy Custodian, and a proviso to Rule 103 on July 27th, 1940, provided that: In relation to subjects of a State which became or becomes a State at war with H. M. later than the 3rd September, 1939, all references to the 2nd September, 1939 in the definition of ' enemy firm' shall be read as referring to [the date immediately preceding the date on which the said State became or becomes a State at war with His Majesty, thus making it unnecessary to make any further order declaring the state of war with Japan, and the inclusion of Japanese property,-and so the property of the Mitsui Bhusan Kaisha,-within the meaning of " enemy firm " as defined in Rule 103. 58. For these reasons I hold that the claim of the Mitsui Bhusan Kaisha Co., Ltd. was capable of being vested in the Plaintiff who has power to continue the suit. Were I to hold that the power was confined to the Custodian of Enemy Property and not to the Deputy Custodian, I would have no hesitation in ordering the plaint to be amended by adding the Custodian as a party under Or. 1, r. 10 of the Code of Civil Procedure. 59. This disposes of Issues (1) and (2) to which the main contest between the parties has been confined. From the evidence of Monsieur Breuleux I have no hesitation in holding that the goods were of the chlorine content as stipulated-and they were snipped within time. 60. The re-sales were effected by Messrs. Mackenzie Lyall & Co., the leading firm of auctioneers in Calcutta. The actual person who conducted the sale was Mr. Colthart whose evidence was not available owing to his absence on active service. The sale sheet books have however been proved and tendered and the sales were held after proper advertisements in the usual course of the auctioneers' business. Mackenzie Lyall & Co., the leading firm of auctioneers in Calcutta. The actual person who conducted the sale was Mr. Colthart whose evidence was not available owing to his absence on active service. The sale sheet books have however been proved and tendered and the sales were held after proper advertisements in the usual course of the auctioneers' business. The sellers were not bound to give notice to the buyers of their intention to re-sell but they did in fact do so. In addition they had the goods analysed and offered the buyers samples in order to give them every opportunity of establishing their objections. No advantage was taken of these opportunities and the outstanding facts are that the market had fallen and the buyers refused delivery. I hold further that cl. 8 of the contracts was binding on the buyers. Mr. Chatterjee argued that the sellers were bound in any event to supply goods of the quality contracted for. That may be so, in fact it is not denied, but that does not mean that the buyers can treat cl. 8 of the general conditions of sale as though it had never been incorporated in the contracts. The liability to supply goods of the quality contracted for is no doubt present but cl. 8 provides a time-limit within which objections may be raised and by it the buyer has further agreed not to put forward his objections until he has paid the purchase price. The buyer is a free agent, if he objects to the condition he can refuse to buy on the sellers' terms. Once he has agreed to them I see no reason why he should not be bound by them. Cl. 8 does not purport to take away his right under the law to goods of the quality which he buys, it merely regulates the time and the manner in which the quality should be ascertained. The Defendant company's failure to carry out the terms of cl. 8 of the conditions of the contracts debars him from raising Issue No. 3. The quantum of the damages has not been challenged and there will be a decree for Rs. 44,359-9 together with interim interest at 12 per cent. and costs including reserved costs if any. Interest on decree at 6 per cent. Certified for two Counsel.