JUDGMENT Das, J. - This is an application on the part of the Plaintiffs for an injunction restraining the Defendant Company from operating on the Letter of Credit No. 176 dated the 12th December, 1946 for 6,800 opened by the Plaintiffs with the Nether-land Trading Society in the name of L.P. Merchant & Co. in favour of the Defendant Company to be paid in London and also from forfeiting 2,000 deposited with the Defendant Company and for the appointment of a receiver of 650 Radio sets lying with the Plaintiffs. The suit in which this application has Seen made was filed on the 6th March, 1947, on the following allegations: 2. The Defendant Company is a company incorporated in England and carries on business at No. 36, Grace Church Street in London and also carries on business through its agent and constituted attorney R.S.B. Atkins at No. 2, Auckland Square in Calcutta. One Bindheswari Prosad Sinha used to carry on business under the name and style of L.P. Merchant & Co. as the sole proprietor thereof at No. 97, Clive Street, Calcutta. 3. On the 26th April, 1946, Sinha, in his said business of B.P. Merchant & Co., entered into an agreement in writing with the Defendant Company through its said agent Atkins. By that agreement the Defendant Company agreed to supply goods of all lines that it had to offer throughout the whole of India to the said L.P. Merchant & Co. and to no other firm and the said L.P. Merchant & Co. agreed to buy the same from the Defendant Company and from no other firm in the United Kingdom. A copy of the agreement which is annexed to the plaint clearly shows that it was made in Calcutta and executed by R. Atkins as the constituted attorney of the Defendant Company. 4. On the 25th May, 1946, in Calcutta Sinha for valuable consideration transferred his said business including the benefit of the said agreement to the Plaintiffs. 5. The Defendant Company by its said agent wanted the Plaintiffs to place orders for Radio sets. The Defendant Company's agent communicated to the Plaintiffs the description and particulars of McCarthy Radio sets and assured the Plaintiffs that they would be serviceable in India. 5. The Defendant Company by its said agent wanted the Plaintiffs to place orders for Radio sets. The Defendant Company's agent communicated to the Plaintiffs the description and particulars of McCarthy Radio sets and assured the Plaintiffs that they would be serviceable in India. The Plaintiffs had no knowledge or inspection of those Radio sets and made known to the Defendant Company the particular purpose for which the Radio sets were required and relied on the Defendant Company's skill and judgment in respect thereof. 6. On or about the 17th July, 1946, in pursuance of the said agreement dated the 26th April, 1946, the Plaintiffs placed with the Defendant Company an order for the supply of 150 McCarthy Radio sets Type II as per leaflet handed over to the Plaintiffs by the said agent of the Defendant Company and annexed to the plaint as Ex. B at the rate of 17 10s. each C.I.F. Calcutta. On the same day the Plaintiffs opened a Letter of Credit with the Eastern Bank, Ltd. for 2530 13s. which was subsequently increased to 2625 which in Indian Currency was equivalent to Rs. 35,121-15. 7. In further pursuance of the said agreement the Defendant Company through its said agent in Calcutta agreed to sell and the Plaintiffs agreed to buy 7000 McCarthy Radio sets Type II as per leaflet 1947 at the rate of 14 10s. each C.I.F. Calcutta upon terms and conditions evidenced by the Defendant Company's letter dated the 20th September, 1946. It was, amongst other things, agreed that the Radios would be delivered in reinforced cartons packed originally by the manufacturers, that the goods would be shipped against irrevocable and confirmed letter of credit to be opened for 1000 sets and valid for four months and that the Plaintiffs would deposit with the Defendant Company 2000 as guarantee for proper fulfilment of the contract. The Plaintiffs on the 1st October, 1946, opened a letter of credit with the United Commercial Bank, Ltd. for 9250 (=Rs. 1,23,763-1-0) for 500 sets and including 2000 as deposit and on the 12th December, 1946, opened another letter of credit with the Netherlands Trading Society for 6800 (=Rs. 90,982-9-3) for another 500 sets. 8. The Plaintiffs on the 1st October, 1946, opened a letter of credit with the United Commercial Bank, Ltd. for 9250 (=Rs. 1,23,763-1-0) for 500 sets and including 2000 as deposit and on the 12th December, 1946, opened another letter of credit with the Netherlands Trading Society for 6800 (=Rs. 90,982-9-3) for another 500 sets. 8. On the 6th January, 1947, the Plaintiffs received 150 McCarthy Radio sets under the first order which, on inspection, were found to be wholly unserviceable and not merchantable or fit for the purpose for which they had been ordered. The Plaintiffs informed the Defendant Company's said Calcutta agent and rejected the goods. The Plaintiffs also by their letter dated the 20th January, 1947, informed the Defendant Company in London of the wholly defective nature of those Radio sets. Inclusive of the amount of the price, clearing charges and the customs duty the total sum paid by the Plaintiffs on account of these 150 sets was Rs. 57,762-10, 9. On the 28th January, 1947, the Plaintiffs received a consignment of 500 McCarthy Radio sets under the second order which were found to be equally defective, unmerchantable and unfit for the purpose for which they had been purchased. The Plaintiffs informed the Defendant Company's Calcutta agent and rejected the goods. The total amount paid by the Plaintiffs against these 500 sets was Rs. 1,73,155 inclusive of duty. 10. The aggregate sum paid by the Plaintiffs against these two consignments was Rs. 2,30,917. Since placing these orders the Plaintiffs spent in advertisements and publicity purposes a sum of Rs. 70,000. Thus the Plaintiffs are already out of pocket to the extent of over Rs. 3,00,000. 11. The Defendant Company failed to make the said 650 sets merchantable or to take back the same or to refund the claim of the Plaintiffs. 12. The Plaintiffs were informed by the Defendant Company's said agent that another similar lot of 500 McCarthy Radio sets were due to arrive within a short time. The Plaintiffs contend that these 500 sets are also of the same make and specification and will be equally defective, worthless, unmerchantable and unsaleable and that they are not bound to accept the same. On the 3rd February, 1947, the Defendant Company repudiated and cancelled the contract relating to the McCarthy Radio sets and purported to forfeit the deposit of 2000. On the 3rd February, 1947, the Defendant Company repudiated and cancelled the contract relating to the McCarthy Radio sets and purported to forfeit the deposit of 2000. The Defendant Company is wrongfully intending and threatening to operate on the letter of credit opened on the 12th December, 1946, and to wrongly appropriate the proceeds. The Plaintiffs contend that the agreements were entered into and the letters of credit were opened as a result of misrepresentation made by the Defendant Company through its said Calcutta agent. The Plaintiffs claim a decree for Rs. 4,03,904-5 as per particulars set out in paragraph 16 of the plaint, enquiry into damages, declaration that the contracts or agreements and the said letter of credit are void or that the same be adjudged void, injunction and appointment of a receiver. These are the allegations and contentions of the Plaintiffs. 13. Immediately after the filing of the suit the present notice of motion was taken out and an interim injunction was obtained from this Court restraining the Defendant Company from operating on the said letter of credit dated the 12th December, 1946. 14. The Defendant Company replied by an application under sec. 34 of the Indian Arbitration Act for stay of all proceedings in the suit on the ground that by clause 12 of the agreement for sale of 7000 McCarthy Radio sets the parties had agreed that all disputes arising therefrom should be settled by arbitration in London. 15. By reason of the interim injunction the Defendant Company was restrained from operating on the letter of credit which was due to expire on the 31st March, 1947. It was necessary that the application for injunction should be disposed of before the letter of credit expired. At the same time the affidavits had to be completed and filed and that was not possible to be done before the 31st March, 1947. The Plaintiffs, however, agreed to extend the period of the letter of credit up to the 7th April, 1947, and directions were given for the filing of affidavits in both applications which have been carried out. In view of the urgency of the latter it was considered expedient and proper first to take up and deal with the application for injunction. 16. Mr. Chaudhuri refers me to sec. In view of the urgency of the latter it was considered expedient and proper first to take up and deal with the application for injunction. 16. Mr. Chaudhuri refers me to sec. 41 of the Arbitration Act and contends that the Court cannot under that section make any order for interim injunction unless there is an arbitration proceeding actually pending. That section provides, inter alia that, subject to the provisions of the Act and of the rules made thereunder, the Court shall have, for the purpose of, and in relation to, arbitration proceedings the same power of making orders in respect of any of the matters set out in the second schedule as it has for the purpose of, or in relation to, any proceedings before the Court. The fourth item in the second schedule comprises "Interim injunction or the appointment of a receiver." This power is conferred on the Court "for the purpose of or in relation to arbitration proceedings." It is not in terms limited to "pending arbitration proceedings" and I do not see why the word "pending" should be added to the section. Further the application for injunction has been made in a suit which is pending and which has not yet been stayed and this Court has power, apart from sec. 41 of the Indian Arbitration Act, to make an order for interim injunction in a pending suit under the CPC as well as in exercise of its inherent powers. Even if the Court thinks fit to exercise its discretion by granting a stay of proceedings that fact does not oust the jurisdiction of the Court to give auxilliary relief, e.g., by the appointment of a receiver or by granting an injunction. The Court can, in its discretion, grant such relief and then stay the action as regards all other matters. See Russell on Arbitration 13th Edn., p. 110. In Zalinoff v. Hammond L.R. [1898] 2 Ch. 92 the Court appointed a receiver and then stayed the suit. Even after an order for stay has been made and during the operation of the stay order the Court may exercise its power to grant an injunction as was done in Willesford v. Watson L.R. [1873] 8 Ch. 473. In my opinion Mr. Chaudhuri's argument on this question cannot be accepted. 17. Mr. Even after an order for stay has been made and during the operation of the stay order the Court may exercise its power to grant an injunction as was done in Willesford v. Watson L.R. [1873] 8 Ch. 473. In my opinion Mr. Chaudhuri's argument on this question cannot be accepted. 17. Mr. Chaudhuri's next point is that in the circumstances of this case and having regard to the pleading no case for injunction has been made out at all. That brings me to the facts and the pleading. On an interlocutory application such as the one before me it will not be right for me to express any definite opinion on the ultimate merits of the respective cases. All that I have to be satisfied about is whether the Plaintiffs have shown prima facie that they have a fair case to raise at the trial. Any observation that I may now make is only for the purposes of this application and is not intended to prejudice either party or to fetter the hands of the learned Judge who will eventually try the suit. 18. The Plaintiffs maintain that the agreements were entered into and the letters of credit were opened by them as a result of misrepresentation made by the Defendant Company's agent Atkins and they claim a declaration that the agreements and the outstanding letter of credit are void or that the same be adjudged void and be cancelled. In paragraph 4 of the plaint there are averments of certain representation and assurances alleged to have been made by Atkins. These are evidently pleaded and relied on as affecting both the orders. In paragraphs 8 and 11 the Plaintiffs plead that the Radio sets received were wholly unserviceable, unmerchantable and not fit for the purpose for which the same had been ordered and that the defects, rendered them unfit for use in Calcutta or in India. In other words in paragraph 4 are pleaded the representations and assurances and in paragraphs 8 and 11 is pleaded the non-fulfilment of those representations and assurances. In paragraph 14 the result is formulated, namely that the agreements were entered into and the letters of credit were opened as a result of misrepresentations made by the Defendant Company through its agent in Calcutta and the agreements and letters of credit are void. In paragraph 14 the result is formulated, namely that the agreements were entered into and the letters of credit were opened as a result of misrepresentations made by the Defendant Company through its agent in Calcutta and the agreements and letters of credit are void. On these pleadings are founded the claims for declarations set forth in prayers (3) and (4) of the plaint. Mr. Chaudhuri has very strongly criticized the plaint as being vague and devoid of particulars. He maintains that those averments ought to be struck out and at any rate cannot be founded upon for any interlocutory relief. While I agree with Mr. Chaudhuri that the pleading is not as precise and explicit as it should be according to the strict rules of pleading I am not in agreement with him that there is absolutely no case of misrepresentation for him to meet. 19. Mr. Chaudhuri then went into facts and contended that there was prima facie no case of misrepresentation which will entitle the Plaintiffs to an injunction. In the affidavit in opposition it is denied that Atkins made any representation or gave any assurance as alleged. Atkins has made no affidavit in opposition to this application and therefore, the allegations in the petition which are re-iterated in the affidavit in reply are practically uncontradicted. Mr. Ryan can have no personal knowledge in the matter. The Defendant Company contends that Atkins had no authority to make any representation or to bind the Defendant Company. The agreement dated the 26th April, 1946, appears to have been signed by Atkins as the constituted attorney of the Defendant Company. It is admitted that Atkins was the authorised agent of the Defendant Company for the purpose of executing that agreement. That the first order dated the 17th July, 1946, for the supply of 150 McCarthy Radio sets was placed through Atkins is apparent from the Defendant Company's letter dated the 22nd July, 1946 a copy of which has been annexed to the affidavit in reply. The Defendant Company's letter dated the 8th October, 1946, states that a McCarthy Radio set had been sent by air "in accordance with Mr. Atkins' cable request." The report of Atkins as to the condition of the Radio sets to which I shall refer hereafter also shows that Atkins was an agent of the Defendant Company. The Defendant Company's letter dated the 8th October, 1946, states that a McCarthy Radio set had been sent by air "in accordance with Mr. Atkins' cable request." The report of Atkins as to the condition of the Radio sets to which I shall refer hereafter also shows that Atkins was an agent of the Defendant Company. There is nothing on record to show that there was any limitation to Atkins' authority or that such limitation was ever brought home to the Plaintiffs. In these circumstances it is difficult to brush aside off hand the Plaintiffs' case in so far as it purports to be founded on misrepresentations made by the Defendant Company's agent Atkins. While, therefore, I agree with some parts of Mr. Chaudhuri's criticisms as to the pleading I am not of opinion that no case of misrepresentation has been made at all. In so far as such a case can be said to have been made, it practically stands uncontradicted. 20. Positive misrepresentation, however, is not the only case made by the Plaintiffs. They also maintain that the Radio sets are unserviceable and unmerchantable and that there has been a breach of implied conditions as to merchantable qualities and fitness for the purpose for which the goods were ordered and supplied. So far as the first order for 150 sets is concerned nothing remains to be done, for all the 150 sets were sent out. As regards the second order for 7000 McCarthy Radio sets, it is clear that that order was intended to be fulfilled in instalments. Where goods under a contract are deliverable by instalments the general rule certainly is that a breach by one party in connexion with one instalment does not of itself entitle the other party to rescind the contract as to the other instalments. Even if the first lot of 500 sets delivered under the second order was not in terms of the order the Plaintiffs will ordinarily not be entitled to reject the subsequent deliveries or rescind the whole order so far as it remains unexecuted and the Defendant Company will ordinarily be entitled to the payment of the price according to the C.I.F. terms and the Court will not ordinarily restrain the Defendant Company from operating on the letter of credit. But, as laid down in Millars Kavie & Jarrah Co. v. Weddel, Turner & Co. [1908] 24 Com. But, as laid down in Millars Kavie & Jarrah Co. v. Weddel, Turner & Co. [1908] 24 Com. C & s. 25, that general rule is subject to qualification. "Thus, if the breach is of such a kind", I am quoting from the judgment of Bigham J. at p. 29 "or takes place in such circumstances as reasonably to lead to the inference that similar breaches will be committed in relation to subsequent deliveries, the whole contract may there and then be regarded as repudiated and may be rescinded." This is in accord with the provisions of section 38 of our Sale of Goods Act which is a reproduction of sec. 31 of the English Sale of Goods Act. I have, therefore, to examine the facts leading up to the dispute. 21. On the 6th January, 1946, the 150 sets under the first order were received by the Plaintiffs. The Defendant Company had drawn upon the letter of credit for the full price at 17. 10s. per set. The Plaintiffs had also to pay customs duty and landing charges. The first instalment of goods, namely 500 sets, under the second order was received by the Plaintiffs about the 28th January, 1947. The Defendant Company had drawn the whole price under the letter of credit and the Plaintiffs had to pay customs duty and landing charges. In all the Plaintiffs paid Rs. 57,762-10 against 150 sets and Rs. 1,73.155 against the 500 sets making the total sum of Rs. 2,30,917-10. In each case according to the Plaintiffs the goods were found to be unserviceable, unmerchantable and unfit for the purpose for which they have been ordered and supplied. The Plaintiffs complained to the Defendant Company's agent in Calcutta and rejected the goods. There is no denial by Atkins as to this. The Plaintiffs also wrote to the Defendant Company in London on the 20th January, 1947, as regards the defective 150 sets. The Defendant Company sent a special representative, Mr. Ryan, to Calcutta. Mr. Ryan in paragraph 13 of his affidavit denies that the Radio sets had been rejected or that he came to India to set right or examine the same or adjust any dispute. He maintains that he was not aware of any dispute between the parties when he left London for India. Ryan, to Calcutta. Mr. Ryan in paragraph 13 of his affidavit denies that the Radio sets had been rejected or that he came to India to set right or examine the same or adjust any dispute. He maintains that he was not aware of any dispute between the parties when he left London for India. It is curious, however, that in the very next sentence he states that he came to Calcutta, amongst other things, "to settle the breach of the obligations of the said L.P. Merchant & Co. in respect of the said agreement of 26th April, 1946, and also of the said contracts for McCarthy Radio sets." It is evident, therefore, that there was some dispute as to the breach of obligations in respect of the contracts for the McCarthy Radio sets in connection with which Mr. Ryan came to India. It is difficult to accept the allegation that the dispute as to that was only with regard to 450 which had been deducted before the third letter of credit was opened. Be that as it may. Mr. Ryan reached Calcutta on the 22nd January, 1947. The first lot of 500 sets under the second order was received on the 28th January, 1947, when Mr. Ryan was in Calcutta. On the 1st February, 1947, Mr. Ryan sent a report to the London Office of the Defendant Company. In that report he explicitly stated : "The 650 sets which arrived here are in the present condition unsaleable, I am a layman but on the short wave band 13 to 25 meters you cannot hear Calcutta or Colombo (Ceylon) for booming noise. And these are the two stations everybody usually listens in." Then he referred to Atkins' unsuccessful attempt to rectify the defect in one set and intimated that a set chosen at random had been sent to George Telegraph Institute for a report. When that set was opened from the packing it was found that the dial glass was smashed. He categorically condemned the packing as ridiculously inadequate and certainly not reinforced export cartons. He referred to various other defects of packing. He informed the London Office that the Plaintiffs were not to blame and that they had done everything to make McCarthy a success and had spent nearly a lac of rupees in advertisements. He categorically condemned the packing as ridiculously inadequate and certainly not reinforced export cartons. He referred to various other defects of packing. He informed the London Office that the Plaintiffs were not to blame and that they had done everything to make McCarthy a success and had spent nearly a lac of rupees in advertisements. He advised the Defendant Company to stop McCarthy from joining further deliveries and to try to redress the situation here, On the same day he cabled to London Office stating that the Plaintiffs were quarrying the performance of the sets delivered owing to major faults and that they could not be expected to open further letter of credit until the defects had been remedied and advising the London Office to pass on the querry to McCarthy and not to pay any further sum and to refuse to take further delivery. Along with Mr. Ryan's report went Atkins' report setting out major faults and other complaints. Then came the report of George Telegraph Institute dated the 24th February, 1947, which spoke about "presence of audio-howl on reception of stations on 13-50 metres on SW1 band and fading (prominent) in short wave reception." The Plaintiffs also had a set examined by the Department of applied Physics of the University of Calcutta and their Report also points out many defects. In short there can be no doubt that the 650 sets are in their present condition unsaleable and unmerchantable. It is not disputed that, the 500 sets which are on their way are of the same make and specification and are likely to have the same defects. Indeed it is in a way admitted by Mr. Ryan for in paragraph 23 of his affidavit he states : "The said letters of credit for 6800 were extended to 31st March, 1947, at the request of the said L.P. Merchant & Co. as late as the 22nd February, at a time when they were fully aware that the 500 sets for which the letter of credit was opened are in the same condition as the 650 sets already received by them." In my opinion having regard to the facts hereinbefore stated there is good deal to be said for the contention that the Plaintiffs may bring the case within the exception to the general rule as to breach of a contract for instalment delivery to which I have referred 22. Mr. Chaudhuri refers me to the affidavit in opposition and points out that Sinha was in London and had seen the McCarthy Radio set and its performance. Sinha, according to Mr. Ryan, was in London between the middle of July and 3rd week of November, 1946. The first order was placed on or about the 17th July, 1946, through Atkins as appears from Defendant Company's own letter dated the 22nd July, 1946. The last paragraph of that letter shows that Sinha had not arrived upto that date. Therefore the first order certainly could not have been placed after inspecting a sample set. Upto that point of time the Plaintiffs must have relied on what Atkins had told them. In the Defendant Company a letter dated the 16th September, 1946, there is a statement that the Defendant Company and Sinha had seen, at least 10 different wireless sets and were satisfied that McCarthy set was the best one and in the opinion of the Defendant Company McCarthy set would be a very good seller on the Indian market and that Sinha agreed with them. The Plaintiffs dispute that Sinha had any authority to bind them in any way. Apart from that question this letter only makes it clear that the subsequent order for 7000 sets was really a sale by sample. If anything, it gives a handle to the Plaintiffs to reject the goods as not being upto sample shown to Sinha. 23. It is next argued that the sale was of goods under a patent or trade name and, therefore, there was no warranty or condition of their being fit for any particular purpose. Whether the sale was of goods under a patent or trade name or of goods by description is a question of fact. The observations of Farwell L.J. in Bristol Tramways Co. v. Fiat Motors Ltd., L.R. [1910] 2 K.B. 831 and the observations of the learned Judges in Baldry v. Marshall L.R. [1925] 1 K.B. 260 will be useful to bear in mind. I am not prepared to say on this application that in this case the sale must have been one under a patent or trade name. Radio sets manufactured by McCarthy may well have been described as McCarthy Radio sets. I am not prepared to say on this application that in this case the sale must have been one under a patent or trade name. Radio sets manufactured by McCarthy may well have been described as McCarthy Radio sets. Nor am I sure that even if the sale be under a patent or trade name so as to bring the case within the proviso and to exclude the application of the first exception of sec. 16 of the Sale of Goods Act, it can not fall within the second exception which insists on the goods being merchantable. There may not be any warranty that goods sold under a trade name will be fit for any particular purpose, but there may still be a warranty as to general merchantability. 24. Mr. Chaudhuri's next contention was that assuming that there has been a breach of condition or warranty the remedy of the Plaintiffs is in damages and they cannot prevent the Defendant Company from getting the price. The contract was C.I.F. and the Defendant Company became entitled to the price and to operate on the letter of credit as soon as the second lot of 500 sets had been placed on board. In the first place there is no evidence before me as to when these goods were placed on board. In the second place if the Plaintiffs' case comes within the exception to the general rule then on the first bad delivery the Defendant Company may well be taken to have repudiated the whole contract by such bad delivery, I do not think it is a case of anticipatory breach at all. In any case the Plaintiffs will be entitled to treat the whole contract at an end. Whether they did so before the goods were placed on board depends on facts. The Report of Mr. Ryan informing the Loudon Office that the Plaintiffs cannot be expected to open further letter of credit and advising them to refuse to make any further payment to the manufacturers and to refuse to take any further delivery suggests that Plaintiffs must have refused to take further deliveries. There is no evidence before me that the goods were placed on board before that date. Further assuming that the goods had been placed on board before that date what follows? Mr. There is no evidence before me that the goods were placed on board before that date. Further assuming that the goods had been placed on board before that date what follows? Mr. Chaudhuri says that the Defendant Company will be entitled to operate on the letter of credit and take away the price and the Plaintiffs will be entitled to sue and if successful to recover damages, I do not see why the Court may not in an appropriate case prevent this circuitous method of adjusting the mutual rights. In my opinion allowing the Defendant Company to take the price and then to make it to pay the damages is only a round about way of adjusting the ultimate rights. If Court can do that, I do not see why Court cannot achieve the same result by setting off the damages against the price and for that purpose hold the price. The powers of the Court are to he utilised in advancing justice and right. 25. A point was hinted as to waiver of the right of rejection by the Plaintiffs by reason of extension of the period of the letter of credit. The extension of the letter of credit for 6800 upto 31st March, 1947, was made on the 22nd January, 1947. Upto that time only 150 sets under the first order had been received. The first lot of 500 sets under the second order had not been received by them and, therefore, at that time there could be no question of cancelling the second order. Reliance was also placed on the Plaintiffs' letter dated the 5th February, 1947. At that time obviously negotiations were going on and that letter was written pending those negotiations. Further in that very letter the Plaintiffs asked the Defendant. Company to take up the matter with the manufacturers and requested it not to ship further sets including 500 which had not then been shipped and to return the same to the factory for rectification of the defects. It is difficult without fuller evidence to treat this letter by itself as a complete waiver as suggested by Mr. Chaudhuri. 26. I should mention another fact. Mr. Ryan on the 1st February, sent his report stating that the 650 sets were unsaleable. On the 3rd February, 1947, however, he cancelled the McCarthy agreement and forfeited the deposit of 2000. It is difficult without fuller evidence to treat this letter by itself as a complete waiver as suggested by Mr. Chaudhuri. 26. I should mention another fact. Mr. Ryan on the 1st February, sent his report stating that the 650 sets were unsaleable. On the 3rd February, 1947, however, he cancelled the McCarthy agreement and forfeited the deposit of 2000. It was suggested that this referred to the agency agreement dated the 26th April, 1946. I do not see that. In the agreement dated the 26th April, 1946, there is no mention of McCarthy agency at all. Further the deposit of 2000 was under the second order for 7000 McCarthy Radio sets. It is quite clear therefore that Mr. Ryan purported to cancel this second order. One of the reasons was that the Plaintiff's had deducted 450 out of the amount that should have been paid as price of 500 sets covered by the third letter of credit. The position is that under the first order for 150 sets the price was 17. 10s, The 150 sets that were sent out were not of the specification as mentioned in the leaflet marked 'B' but were according to the specification as per leaflet 'C' the price of which was 14.10s. The Plaintiffs contending that they had overpaid 3 per set on 150 sets, deducted 450 out of the third letter of credit. Whatever the reason the Defendant Company purported to cancel the second order and forfeited the deposit. I do not see how it can turn round and say that it is entitled to price of the second instalment of delivery under the contract which it has itself repudiated and cancelled. On a consideration of ail facts and circumstances I am satisfied that the Plaintiffs have made out a case for injunction. The only question that troubled me was whether I should impose on the Plaintiffs the condition of bringing the amount of the letter of credit into Court. They have paid Rs. 2,30,917 against the 650 sets. If they succeed in their case of total rejection then this sum will be ample security for the price of 500 sets covered by this letter of credit. They have paid Rs. 2,30,917 against the 650 sets. If they succeed in their case of total rejection then this sum will be ample security for the price of 500 sets covered by this letter of credit. If it is not a case of total rejection but only a case of damages for breach of warranty in respect of 650 sets even then they will get a considerable sum which they will be entitled to set off against the price, of these second lot of 500 sets. Then they had 2000 as deposit. Further they have spent something like 70,000 on publicity. Lastly the 650 sets are available and the price that will be realised by sale thereof by the Receiver I am going to appoint will also be available to the Defendant Company. It is true that there is no suggestion that the Plaintiffs will not be able to realise the money from the Defendant Company after it withdraws the money. There is no allegation either that the Defendant Company will not be able to realise the price from the Plaintiffs. Considering all circumstances I am satisfied that it is not a case of security, particularly when the Defendant Company itself has cancelled the agreement. I, therefore, make the order of injunction absolute until the determination of this suit. I also appoint the Official Receiver as Receiver of the 650 radio sets mentioned in the petition with liberty to him to sell the same after effecting such repairs as he may be advised by experts. He will consult the parties about the repairs. He will also consult the parties before actually selling the same. The sale should be by public auction, unless the parties agree to a private sale. If the parties agree upon a private Receiver before this order is drawn up then such person will be appointed Receiver on usual remuneration and security. Costs of this application will be costs in the cause.