Indian Pottery Works v. Dominion Of India — 1961 DIGILAW 158 (CAL)

JUDGMENT 1. The plaintiff instituted this suit for the recovery of Rs 2,04,844-6-0 and further interest. The plaintiff's claim is for Rs. 78,125-0-0 for the price of 5 lakh pieces of Blanco cakes, a sum of Rs. 5859-6-0 being extra charges for packing the Blanco cakes weighing 125000 Ibs. @ -/-/9 per Ib. and a further claim for Rs. 98,280/- on account of godown rent from September 1, 1945 to November 30, 1947 @ 1 per cent. per week and a further sum of Rs. 32,580/- on account of interest @ 12 per cent, per annum from 1-9-45 to 30-11-47. It should be stated at the outset that the plaintiff pressed the claim only for Rs. 78,125/- at the trial and for no other sum and the plaintiff abandoned its claim for the rest. 2. The plaintiff entered into a contract with the Governor General in Council on November 24, 1944. The contract was for 5 lakh pieces of Blanco water-proof olive green cakes. The contract is contained in several documents to which I shall refer herein after. In the plaint it is pleaded that the acceptance of tender was on November 30, 1944. On December 6, 1944 the Office of the Controller of Supplies informed the plaintiff that the samples submitted by the plaintiff were not firm and that the shade was not correct. The plaintiff was asked to submit a fresh sample. On December 13, 1944 the Office of the Controller of Supplies informed the plaintiff that the sample referred to in the letter dated December 6, 1944 had been approved and that the plaintiff might proceed with the bulk manufacture of goods and that the dimension of the cakes should be as laid down in specification IM/2353 (c. The plaintiff alleged in the plaint that the terms of the contract were varied by letter dated 12 December 1944 and the alleged variation was in respect of the shade of Blanco cakes. In paragraph 7 of the plaint it is alleged that the materials necessary for the manufacture of Blanco cakes were controlled articles land the said materials were released by the Government and received by the plaintiff by the end of February 1945 and the other materials were received by the plaintiff in March and April, 1945. 3. In paragraph 7 of the plaint it is alleged that the materials necessary for the manufacture of Blanco cakes were controlled articles land the said materials were released by the Government and received by the plaintiff by the end of February 1945 and the other materials were received by the plaintiff in March and April, 1945. 3. In paragraph 8 of the plaint it is alleged that as soon as the materials were received, the plaintiff started bulk manufacturing and by the end of March 1945 the plaintiff offered 50000 pieces for inspection. In paragraph 9 of the plaint it is alleged that the Government by its negligence and failure to release the Prusian Blue and other raw materials before the month of February and March and April 1945 rendered the supply of the said articles by the plaintiff within a month from the date of acceptance of the advance sample impossible. It is further alleged that the Government never insisted on time being of essence of the contract and acquiesced in the supply being made after the said period of one month. A further allegation is that both parties to the contract regarded and or agreed that time was not of the essence of the contract. I shall have occasion to refer to paragraph 9 later on. 4. In paragraph 10 of the plaint it is alleged that the plaintiff completed manufacture of 4,35,000 pieces of Blanco cakes by June 1945. The plaintiff's allegation is that the goodie had been inspected from time to time at the plaintiff's factory during the process of manufacture by Government employees who represented that they were inspectors and gave instructions to the plaintiff in the matter of manufacture of Blanco cakes. In paragraph 11 it is alleged that by letter dated 7 July 1945 one S. M. Doja cancelled the acceptance of tender on the ground that the plaintiff had failed to comply with the terms and conditions stipulated in the contract. The plaintiff alleged that the cancellation of contract was illegal, wrongful and malafide. The plaintiff by letter dated July 8, 1945 contended that it could not agree to the cancellation of the contract. BY letter dated July 13, 1945 one L.G. Makhijani purported to cancel the contract again without assigning any reason. The plaintiff challenges the said cancellation as illegal, wrongful and malafide. The plaintiff by letter dated July 8, 1945 contended that it could not agree to the cancellation of the contract. BY letter dated July 13, 1945 one L.G. Makhijani purported to cancel the contract again without assigning any reason. The plaintiff challenges the said cancellation as illegal, wrongful and malafide. By letter dated July 18, 1945 the plaintiff stated that it could not agree to the cancellation of the contract. In paragraph 15 of the plaint it is alleged that the representative of the plaintiff saw the Deputy Director General. It is alleged that the said official represented to the plaintiff that he would renew the acceptance of tender if the samples were approved by the Officer-in-charge, Cossipore. It is alleged that on August 2, 1945 one C. N. Tewari acting for Officer-in-charge, Ordnance submitted a test report to the Officer-in-charge. Cossipore recommending acceptance of the goods with certain deviations called Deviation "e". In paragraph 16 of the plaint it is alleged that in spite of approval of the goods by Major Slater and recommendation by Tewari for acceptance of the goods the acceptance of tender of the contract was not renewed and the goods were not taken delivery of by the defendant. In paragraph 17 it is alleged that by the middle of August the plaintiff had 5000 pieces of Blanco Cakes ready for delivery. In paragraph 18 it is alleged that the Controller of Supplies requested the plaintiff to treat the letters canceling the acceptance of tender as cancelled or in other words that the contract was reinstated. It is further alleged that the plaintiff was informed that the Stores would be inspected. In paragraph 19 of the plaint it is alleged that the defendant's act in requiring the plaintiff to submit the goods after they had been approved and accepted and after property therein had passed to the Government for a fresh inspection was malafide, illegal, wrongful and contrary to the terms of the acceptance of tender. In paragraph 20 it is alleged that after some correspondence one Jhangiani issued an inspection certificate dated November 30, 1945 purporting to reject the goods on grounds specified in the said document. The plaintiff states that the said Jhangiani was not an inspector within the meaning of the word "inspector" as laid down in W. S. B. No 133 (being conditions of contract in a printed book. The plaintiff states that the said Jhangiani was not an inspector within the meaning of the word "inspector" as laid down in W. S. B. No 133 (being conditions of contract in a printed book. The alternative contention of the plaintiff is that if Jhangiani was an inspector he had no jurisdiction to reject the goods which had already been approved and accepted and property wherein had passed to the Government. Under these circumstances the plaintiff challenges the purported rejection of the goods by Jhangiani as wrongful, illegal and mala fide and to evade liability for damages to the plaintiff. 5. In paragraph 22 of the plaint it is alleged that Jhangiani by letter dated February 18, 1946 stated that the samples had been tested and rejected the goods on grounds mentioned in the inspection certificate of that date. The plaintiff alleges that the said Jhangiani was not an Inspector within the meaning of the word "inspector" and the alternative contention is that he had no jurisdiction to reject the goods which had been accepted and property wherein had passed and therefore this rejection is also wrongful, illegal and mala fide. The defendant in the written statement denied the claim of the plaintiff. It is not necessary to deal with the defence in detail. The nature of the defence will appear from the issues framed at the trial. 6. The following issues were framed at the trial. 1. Was the contract varied as alleged in paragraph 6 of the plaint? If so, is the alleged variation binding on the defendant? 2. Is the defendant responsible for delay in the alleged release of the articles to the plaintiff? 3. Was the tender by the plaintiff of 50,0000 Blanco Cakes to the defendant in March 1945 as alleged in para 8 of the plaint a valid tender? 4. Did the plaintiff report about the progress of the Blanco Cakes as alleged in para 8 of the plaint? 5 (a) Did the Government acquiesce in the supply being made after the period of one month? (b) Did both parties to the contract regard or agree that the time was not of the essence of the contract as alleged in para 9 of the plaint? 6. Was there any verbal representation by the Deputy Director General as alleged in para 15 of the plaint? If so, what is the effect thereof? 7. (b) Did both parties to the contract regard or agree that the time was not of the essence of the contract as alleged in para 9 of the plaint? 6. Was there any verbal representation by the Deputy Director General as alleged in para 15 of the plaint? If so, what is the effect thereof? 7. Did Major Slater, O. C., O. I. D., Cossipore, personally visit the plaintiff and draw the samples from bulk and approve the same? 8. Were the goods approved and/or accepted and/or did the property therein pass on to the Govt. as alleged ? 9. What was the effect of restoration of the said acceptance of tender? 10. Was Mr. Jhangiani, not the duly authorised agent of the O. C., O. I. D., Cossipore. 11. Was the rejection of the goods by Mr. Jhangiani illegal, mala fide and not in accordance with the contract contained in W. S. B. 133? 12. Was the contract wrongfully or otherwise repudiated by the defendant? If so, what is the effect thereof? 13. Is the plaintiff entitled to the packing and the godown charges and/or interest as claimed in para 24 of the plaint? 14. Does the plaint disclose any cause of action? 15. Has this Court any jurisdiction to determine this suit in view of the fact that the suit has been filed without leave under Clause 12? 16. To what relief, if any, is the plaintiff entitled? Counsel for the plaintiff contended that his entire or whole cause of action was for recovery of the sum of Rs. 78125/- on account of wrongful rejection of goods. The plaint was filed without leave under clause 12 of the Letters Patent. It is therefore necessary to find out whether the suit is competent and whether the whole cause of action has arisen within the jurisdiction of this Court. 7. I shall deal first with the plaintiff's contention that the rejection of the goods was illegal, mala fide. The contract between the parties is contained in several documents, some of which are annexed to the plaint and are also included in Ex. A being the agreed bundle of correspondence and documents. 7. I shall deal first with the plaintiff's contention that the rejection of the goods was illegal, mala fide. The contract between the parties is contained in several documents, some of which are annexed to the plaint and are also included in Ex. A being the agreed bundle of correspondence and documents. In the first annexure to the plaint which is described as acceptance of tender clause 4 thereof states that the Inspecting Officer should be informed sufficiently in advance at least a week if possible when and where the goods should be ready for inspection to ensure delivery on due date. Clause 6 thereof deals within advance sample viz., that if required advance sample must be despatched to the Inspecting Officer mentioned in the schedule so as to reach him by dates specified therein. It is also stated there that the sample must be of an acceptable quality and fully representative of the bulk supply. If the sample is not approved the contract is liable to immediate cancellation in which case the stores will be repurchased at the contractor's risk and expenses under the conditions of contract. The schedule to the acceptance of tender is the second document to be considered. In the schedule it appears that the date of delivery is within one month from the date of approval of the advance sample. The terms of delivery are F.O.R. Kendposi (Bengal Nagpur Railway), and the consignee is the Chief Ordnance Officer, G.H.R. Ordnance Depot Calcutta. Item No. 10 of the Schedule states the particulars governing the supply whereof specification is described as IM/2353 (c. Item No. 11 of the Schedule states that before proceeding with bulk manufacture the contractor is required to submit advance sample to C.I.S. and C, Kanpur for approval immediately after receipt of the acceptance of tender. Item No. 12 deals with inspection and it is stated that the place for inspection is contractor's place at Kendposi and the inspecting authority is the Officer-in-charge O.I.D. (Ordnance Inspection Depot), Cossipora Item No. 16 deals with certain special instructions wherein clause (e) states that the delivery period should be strictly adhered to and clause (f) states that if the contractor fails to submit an approvable quality of sample within one month from the date of the order, the order would be treated as cancelled. There are certain foot notes to the Schedule. There are certain foot notes to the Schedule. Foot-note No. 2 states that C.I.S. and C., Kanpur is the person to whom the date of approval of the advance sample should be intimated and thereafter the sample should be sent to the firm to guide manufacture. Foot-note 3 states that the Officer-in-charge, Ordnance Inspection Depot, Cossipore, will make arrangement for inspection of the stores at the firm's premises. The third document to which reference should be made is what is known as W.S.B. 133. In clause 1 thereof the contract is defined as invitation to tender, instructions to tenderers, acceptance of tender and the 'particulars' defined in W. S. B. 133 and those general and special conditions that may be added Purchaser is denned to mean the purchaser or purchasers named in. the instructions to tenderers, his or their successors or assigns. The Inspector is defined to mean any person named by or on behalf of the purchaser to inspect supplies stores or work under the contract or, his duly authorised agent. Clause 13 (i) deals with facilities for test and examination. Clause 13 (ii) deals with methods of test Both the clauses use the word "the Inspector". Clause 13 (iii) is as follows :- Inspector.-Final authority and to certify performance. Thereafter it is stated that (a) the Inspector shall have power before any stores or parts thereof are submitted for inspector to certify that they cannot be in accordance with the contract owing to the method of manufacture not being satisfactory, or (b) to reject any stores submitted as not being in accordance with the particulars. In clause 13 (v) (d) it is stated that the Inspector's decision as regards rejection shall be final and binding on the parties. The plaintiff did not adduce any verbal evidence. On behalf of the defendant there is the verbal evidence of Chandra Nath Tewari and Kripal Awatrai Jhangiani. Chandra Nath Tewari was the senior scientific officer in the Ordnance Laboratory, Ministry of Defence in the year 1944-45 and he was posted for some time as Officer-in-charge, Ordnance Laboratory, Calcutta Branch, Hastings. The other witness was Officer-in-charge, Oil Paints and Chemicals in the Ordnance Inspection Depot, Cossipore in the year 1944-45. Jhangiani stated that he inspected the goods. He further said that Major Slater was Officer-in-charge, Ordnance Inspection Depot, Cossipore and that the witness served under the said Officer-in-charge. The other witness was Officer-in-charge, Oil Paints and Chemicals in the Ordnance Inspection Depot, Cossipore in the year 1944-45. Jhangiani stated that he inspected the goods. He further said that Major Slater was Officer-in-charge, Ordnance Inspection Depot, Cossipore and that the witness served under the said Officer-in-charge. The witness stated that he Went to Kendposi and he drew samples from boxes and thereafter sent the same to the Inspectorate known as C.I.S. and C., Kanpur meaning thereby Chief Inspector of Stores and Clothing. In q. 31 he said that the Chief Inspector of Stores and Clothing was the final authority to carry out the chemical test. The Officer-in-charge, Ordnance Inspection Depot was concerned with bulk inspection and other tests were to be carried out by the laboratory of the Chief Inspector of Stores and Clothing Kanpur. In q. 35 seq. he was asked about his inspection certificate. He stated that it was his certificate and he further referred to the certificate sent by the Kanpur authorities. In q. 47 he said that for the second time he selected 20 boxes at random, opened them and took one sample from each box. Thereafter he sent the samples to the same authority at Kanpur. The witness was referred to the relevant documents to which I shall refer hereafter and stated that the goods were rejected. In q. 83 following, he was asked about the Officer-in-charge, Ordnance Inspection Depot Cossipore. In q. 85 the witness was asked as to in what capacity he inspected the goods and his answer that it was in the capacity of Officer-incharge, Oil Paints and Chemicals. Section of the Ordnance Inspection Depot. Cossipore. In q. 86 he was asked as to what authority he had to inspect the goods. The answer was "on behalf of the Officer-in-incharge Ordnance Inspection Depot, Cossipore. "In the following question he was asked as to who gave him that authority. He said that it was difficult to say so after 16 years. His further answer was that by virtue of being the officer-in-charge, Oil Paints and Chemical Section, he was responsible for inspection of stores like oil, paints and chemicals and in this particular case he went twice to Kandposi and as it was out of station he could not have moved without specific orders. His further answer was that by virtue of being the officer-in-charge, Oil Paints and Chemical Section, he was responsible for inspection of stores like oil, paints and chemicals and in this particular case he went twice to Kandposi and as it was out of station he could not have moved without specific orders. He further said that it must be under specific orders of the Officer-in-charge, Ordnance Inspection Depot, to proceed to Kendposi to draw sample. 8. The other witness Chandra Nath Tewari stated that Hastings Laboratory was under administrative control of C.I.S. and C. and under the technical control of Ordnance Laboratory, Kanpur which was a part of C.I.S. and C. Tewari said that he examined quite a lot of Blanco cakes at Kanpur as well as at Calcutta. He was shown the report of the Controller of Supply dated November 28, 1944 and stated that the report was signed by him. In q. 7 he said the sample did not conform to specifications. He was asked about another report dated July 28, 1945 and a document dated August 2, 1945. In the latter document Tewari said that blanco cakes could be accepted under deviation (e). He explained deviation (e) to mean that if there were certain defects the Inspector had to consider the urgency of the requirements for a particular store and to exercise the discretion whether or not the stores having those defects could be considered for acceptance for meeting urgent requirements in the particular case. Deviation (e) refers to a minor deviation only in respect of manufacturing details which will not affect the serviceability, interchangeability, durability or validity of the goods as laid down in the acceptance of tender. Counsel on behalf of the plaintiff relied on the following documents to impeach the two rejections. At p. 15 of Ex. B being part II of the agreed bundle of documents is a forwarding note for samples dated November 6. The notice is signed by Jhangiani and below his signature the following words appear "O.I.D. for officer-in-charge O.I.D. Cossipore". Sampling Officer's name is shown as K. J. Jhangiani. The date of sampling is November 3. The specification is referred to as No. I.M. 2307f. This forwarding note shows that the goods were being sent to the Officer at Kendposi. At p. 106 of Ex. Sampling Officer's name is shown as K. J. Jhangiani. The date of sampling is November 3. The specification is referred to as No. I.M. 2307f. This forwarding note shows that the goods were being sent to the Officer at Kendposi. At p. 106 of Ex. A is a document dated November 21, 1945 addressed by the Inspectorate of General Stores, Cawnpore to the Officer-in-charge, Ordnance Inspection Depot, Cossipore. It is signed by the Chief Inspector of Stores and Clothing. The particulars of test are referred to there as Specification I.M. 2620 (C). The date of receipt of samples is November 12, 1945. It is stated that the colour of the cakes varies from grey to black. It is further stated there that in view of the fact that the samples are not of uniform quality arid do not meet the most important requirement of the specification in respect of colour and shade further tests were not carried out and supply as exemplified by these samples is not recommended for acceptance. In the footnote of the document it is stated that this consignment could have been rejected by "your" examiner (referring to the addresses of the letter) on the spot on visual examination on account of non-conformity of the supply. The third document on which counsel for the plaintiff relied is at p. 108. This is inspection certificate dated November 30, 1945. It is signed by K. J. Jhangiani and against the word "designation" the following words occur "for O.I.C.O.I.D. Cossipore". It is signed at Cossipore and it reads as follows: "delivery dated expired on December 24, 1944." The ground of rejection is there and are as follows: "the supplies are not uniform in colour. The colour of the cakes varies from grey to black vide C.I.S. and C. No. 0 16 D 44 Chem. dt. 21-11-45. 9. The other set of documents on which counsel for the plaintiff relied will appear at p. 17 of Part II of Ex. B, pages 111, 112 and 132 of Ex. A. At p. 17 is the forwarding note dated January 21, 1946 signed by KJ Jhangiani. It is in the same form as the other forwarding note to which I have referred, save and except that the specification is shown as No. I. M. 96206/c. In this instance the number of samples was 20. The next document appearing at p. 111 of Ex. It is in the same form as the other forwarding note to which I have referred, save and except that the specification is shown as No. I. M. 96206/c. In this instance the number of samples was 20. The next document appearing at p. 111 of Ex. A is dated February 7, 1946 addressed by the Chief Inspection of Stores and Clothing, to the Officer-in-charge, Ordnance Depot Cossipore. The letter is as follows: "the samples forwarded with your reference on the reverse do not conform to specification I. M. 2620 (C) in the following respects :- (1) The ingredients used in the manufacture of the cakes are not properly mixed and isolated yellow and white particles of pigments are prominent in all the samples. Some of the samples have cracks in the interior of the cakes. (2) Only four of the twenty samples produce a shade approaching closely the standard Olive Green, the others yielding shades varying between grey to dirty green. (3) The material of the samples is not satisfactorily resistant to showering. The supply is represented by these samples is not recommended for acceptance. The samples have been expended in test. " 10. AT p. 112 is the letter dated February 18, 1946 written by K. J. Jhangiani for Officer-in-charge of Ordnance Inspection Depot, Cossipore to Messrs. Indian Pottery Works. The letter is as follows: "dear Sirs, sample drawn from 5 lakhs tendered for inspection under the reference, have been tested and sentenced not acceptable for the following respects: (1) The ingredients used in the manufacture of the cakes are not properly mixed and isolated yellow and white particles of pigments are prominent in all the samples. Some of the samples have cracks in the interior of the cakes. (2) Some of the samples produce a shade approaching closely the standard olive green, the others yielding shades varying between grey to dirty green. (3) The material of the samples is not satisfactorily resistant to showering. In view of the above, an Inspection Note rejecting the supply is under issue to you. " At p. 132 is the defendant's letter to the plaintiff dated August 6, 1946. Counsel for the plaintiff relied on this letter inasmuch as it was stated by the defendant's Solicitor that the whole of the consignment was rejected by the Inspector on the grounds mentioned in the letter dated February 18, 1946. 11. " At p. 132 is the defendant's letter to the plaintiff dated August 6, 1946. Counsel for the plaintiff relied on this letter inasmuch as it was stated by the defendant's Solicitor that the whole of the consignment was rejected by the Inspector on the grounds mentioned in the letter dated February 18, 1946. 11. On this documentary evidence counsel for the plaintiff contended first that Jhangiani was indisputably not the Officer-in-Charge, Ordnance Inspection Depot and therefore he had no jurisdiction or authority to reject. The second contention was that Jhangiani did not apply his mind to the rejection but followed totidem verbis the Report of the Kanpur Authority and that he did not bring his independent judgment in regard to rejection of the goods. The third contention was that the Specification number referred to in the schedule to the tender is different to the inspection Specification numbers referred to in the Cawnpore Report and the Jhangiani Reports. 12. As to the contention whether Jhangiani had any jurisdiction or authority to reject the goods counsel for the plaintiff contended that the definition of Inspector in W.S B. 133 was excluded by reason of the fact that the schedule to the tender showed the Inspecting Authority to be the Officer-in-charge, Ordnance Inspection Depot Cossipore and therefore there could be no other Inspector. Secondly, it was contended that if the definition of the Inspector as laid down in W.S.B. 133 applied there was no evidence that the purchaser did authorise Jhangiani in this particular case to inspect the goods. The verbal evidence of Jhangiani was criticised by counsel for the plaintiff as not disclosing authority to inspect. Counsel for the defendant contended that the case of Jhangiani being not an Inspector within the meaning of the word "inspector" in the conditions known as W.S.B. 133 was a departure from the cause of action specified in the notice under, section 80 and that therefore the pleading was a departure from notice under section 80. The validity and propriety of the notice under section 80 has not been challenged in the written statement. There was no issue on that question either. The departure from notice under section 80 can be criticised by the defendant on other grounds but not on the ground that it is a case not specified in the notice under section 80. The validity and propriety of the notice under section 80 has not been challenged in the written statement. There was no issue on that question either. The departure from notice under section 80 can be criticised by the defendant on other grounds but not on the ground that it is a case not specified in the notice under section 80. Inasmuch as the plaintiff has challenged the authority of Jhangiani as an Inspector it has to be ascertained whether he was a competent person. As to the verbal evidence that Jhangiani was authorised by the Officer-in-charge to accept the goods there is no challenge in cross-examination. Counsel for the plaintiff contended that he did not cross-examine because the Witness did not prove his authority. There is this evidence of Jhangiani that he went under the specific orders of the Officer-in-charge. Nothing in writing has been disclosed. It may be verbal order. The witness was quite frank in his answer that in view of the fact that the matter happened 16 years ago it was difficult for him to remember but he must have gone to Kendposi on the specific orders. It is therefore likely as the witness himself stated that he was authorised to inspect the goods. Counsel for the plaintiff contended that inasmuch the schedule to the tender referred to the Inspecting Authority and not the Inspector the conditions of W.S.B. 133 are ruled out. I am unable to accept the contention. The word "inspector" occurs in the various clauses in W.S.B. 133. Clause 13 of W.S.B. 133 deals with inspection and rejection and refers to the Inspector's decision and Inspector has the final authority. Counsel for the defendant in my view rightly contended that the term "inspector" as defined means any person nominated on behalf of the purchaser or any duly authorised agent of the Inspector himself. I am therefore of opinion that Jhangiani was an Inspector within the meaning of the word "inspector" in W.S.B. 133 and he has authority to inspect the goods. 13. As to the second contention whether he applied his mind I am of opinion that in looking into the Reports and accepting or adopting as the ground for rejection the identical language that does not in my opinion prove that the Inspecting Authority did not bring into aid his independent judgment. 13. As to the second contention whether he applied his mind I am of opinion that in looking into the Reports and accepting or adopting as the ground for rejection the identical language that does not in my opinion prove that the Inspecting Authority did not bring into aid his independent judgment. Counsel for the plaintiff relied on certain decisions reported in Hickman v. Roberts (1) reported in 1913 Appeal Cases 229, Bombay Burmah Trading v. Aga Mohamed (2) reported in I. L. R. 34 Mad. 453, Diggle v. Ogston Motor Co. (3) reported in 1915 (84) L. J. (KB.) 2165, Andrews v. Belfield, (4) reported in 2 C. B. 779-141 English Reports 622 and A.I.R. 1935 Mad. 356, South Indian Ry. Co. v. V.S.M. Bhashyam Naidu and Ors. (5) in support of the proposition that where a person was authorised or directed to exercise his opinion and judgment he should bestow his free mind on the question. 14. Hickman's case, Lord Lore-burn, L. C. said that a person would not be fit to be a judge because he had been acting in the interest of one of the parties and at their direction. Such conduct would taint the whole of his act and make them invalid, whatever his decision was directed to. In the present case no such taint or corrupt motive has been ascribed. The only question that was canvassed was that Jhangiani did not apply his independent judgment. In the present case, the facts to my mind show that Jhangiani drew the samples, forwarded the same for chemical test and directed his attention to the report that he had and considered the matter in the facts and circumstances of the case. I am therefore of opinion that Jhangiani applied his mind to the case of rejection. Merely because he accepted the report of] the chemical test, it cannot be said that he was not independent in his own views. It was contended that Jhangaini referred to the expiry of the delivery date and therefore his ground or rejection was malafide. The grounds of rejection are regarding colour and shade and he has merely recorded that the expiry date was December 21. It was contended that Jhangaini referred to the expiry of the delivery date and therefore his ground or rejection was malafide. The grounds of rejection are regarding colour and shade and he has merely recorded that the expiry date was December 21. As to the third contention that the specification number did not tally with that in the schedule to the tender, I am of opinion that the plaintiff did not give any notice of the case to the defendant in the pleading or in opening the case. If such notice had been given, it would then have been incumbent on the defendant to show whether the specification number that was referred to in the reports was different to the specification number mentioned in the schedule. I am, therefore, of opinion that it is not open to the plaintiff to impeach the rejection on that ground. 15. Counsel for the defendant relied on the correspondence in support of his contention that it would appear from the facts of the case that at no stage did the plaintiff challenge the authority or jurisdiction of the Inspector and, secondly, that the plaintiff asked for a reconsideration of the matter after Jhangiani had made his report. Reference was made to the letters dated February 22, 1946 at p. 116 of Ex. A, letter dated March 18, 1946 at p. 117, letter dated May 1, 1946 at p. 119. The defendant's contention appears to be sound and correct in the context of the facts and circumstances of this case. Counsel for the plaintiff contended that even if the plaintiff had referred to the report of the Inspector, that would not clothe the Inspector with jurisdiction if, in fact, he did not have any. I have already held that Jhangiani was an Inspector within the meaning of the conditions of W.S.B. 13s and I am therefore of opinion that the plaintiff's contentions; are without any substance. 16. The next question is whether the suit is competent in view of the fact that it is instituted without leave under Cl. 12. It has not been argued that the defendant resides within the jurisdiction. It is well settled that the Government neither dwells nor resides nor carries on business. The only way in which the plaintiff can maintain this suit is on the fioting that the plaintiff's whole cause of action arose within the jurisdiction. 12. It has not been argued that the defendant resides within the jurisdiction. It is well settled that the Government neither dwells nor resides nor carries on business. The only way in which the plaintiff can maintain this suit is on the fioting that the plaintiff's whole cause of action arose within the jurisdiction. Counsel for the plaintiff stated that he abandoned all the claims of the plaintiff in the suit save and except the claim or cause of action that the goods were wrongfully rejected and his whole cause of action was the communication of the rejection to the plaintiff at Calcutta. The plaint does not support the contention of the plaintiff. Counsel for the defendant in my view rightly contended that it did not appear in the plaint either that the factum of communication of the notice to the plaintiff at Calcutta within the jurisdiction was pleaded either as plaintiff's whole cause of action or that the plaint when analysed would show that that was the plaintiff's whole cause of action. Counsel for the plaintiff contended that his cause of action consisted first of the making of the contract which was within the jurisdiction secondly, the communication of rejection at Calcutta and thirdly, that the plaintiff was therefore entitled to the price of the goods. Counsel for the plaintiff further contended that if the plaintiff's cause of action consisted of several causes of action, it was open to the plaintiff to abandon some of the causes of action at the trial and confine the claim only to one or two causes of action. Counsel for the plaintiff relied on the decision in Hongkong Shanghai Banking Corporation (6) reported in 63 C.W.N. 316 and the decision in Bengal Agricultural and Industrial Corporation Ltd. v. Corporation of Calcutta, (7) reported in A.I.R. 1960 Calcutta 123. In Hongkong Shanghai Banking Corporation case the plaintiff sued on two mortgages. One portion of the land was within the jurisdiction and the other was outside the jurisdiction. The mortgage there was not created by one instrument. One was a mortgage in writing and the other was an equitable mortgage. I therefore took the view that there was not one mortgage but that there were two mortgages and therefore there were two causes of action. The mortgage there was not created by one instrument. One was a mortgage in writing and the other was an equitable mortgage. I therefore took the view that there was not one mortgage but that there were two mortgages and therefore there were two causes of action. In the other decision on which counsel for the plaintiff relied, there was a claim in respect of rent and a claim in respect of land. The two causes of action were severed and a claim in respect of rent was held to be competent. In the present case the plaintiff's cause of action as presented at the trial is wrongful rejection of goods. Reliance was placed on a decision reported in 93 C.L.J. 373 [Nalini Ranjan Guha v. Union of India] (8) on the observation appearing at p. 378 in support of the proposition that the cause of action does not arise where letter is posted but where letter is received. That was a case where the Court had to consider whether notice under s. 80 was, in the first place, part of cause of action and, secondly, if so, whether the place where the letter was posted would form part of cause of action or the place where letter was received. It was held that the place where the letter was received would be part of the cause of action. The service of notice under s. 80 has already been held by the Appellate court not to be a part of the cause of action and I am, therefore, of opinion that the receipt of the letter or notice under s. 80 is never a part of the cause of action. 17. In the making of contracts the offer as well as the acceptance will determine the situs of the contract. It would be competent to parties to contend that the place from where the offer is made or the place where the offer is accepted will both attract the jurisdiction of the Court. In case of breach of contract, it is the infraction of the right which will be the foundation of the cause of action. In the present case, the plaintiff impeaches the rejection of the goods as not being in accordance with the terms of the contract. In case of breach of contract, it is the infraction of the right which will be the foundation of the cause of action. In the present case, the plaintiff impeaches the rejection of the goods as not being in accordance with the terms of the contract. Obviously the contract stipulates that the Officer-in-charge, Ordnance Inspection Depot, Cossipore is to discharge the obligations of examination or rejection of goods. In my opinion the inescapable conclusion is that the examination or rejection at Cossipore or at any other place where the goods are inspected, be it the contractor's factory or the stipulated place like the Ordnance Inspection Depot, Cossipore, is the place where the rights and obligations of the parties in regard to examination and rejection took place. The communication of rejection does not, in my view, form the infringement of the right. Contract is not a fact but a series of rights or obligations. The rights or obligations which flow from the contract regulate the rights or liabilities of the parties. A breach of an obligation will confer a corresponding right on the other party. In the present contract those rights and obligations with regard to examination and rejection of goods arise in the facts and circumstances of this case outside the jurisdiction of this Court. Counsel for the plaintiff took recourse to documents to assail the examination or rejection on the grounds that the officer at Cossipore was merely copying or following the Kanpur report and therefore that in itself was an infringement. Obviously this act arose outside the jurisdiction. Secondly, the communication of rejection does not in my view, form the foundation of the cause of action. The cause of action has already occurred or arisen. There has been rejection which the plaintiff impeaches or challenges as illegal or malafide. The plaintiff's case as pleaded is that this rejection is illegal and malafide for reasons alleged in the plaint. Nobody has given verbal evidence on behalf of the plaintiff as to where this infringement has occurred. Counsel for the plaintiff relied on documents. Documents, in my view, do not show that such rejection has taken place wholly within the jurisdiction. 25. The reason why communication of rejection does not in my view form the cause of action is that the cause of action is complete when such breach has occurred or the obligation has not been fulfilled. Documents, in my view, do not show that such rejection has taken place wholly within the jurisdiction. 25. The reason why communication of rejection does not in my view form the cause of action is that the cause of action is complete when such breach has occurred or the obligation has not been fulfilled. The phrase, cause of action has been the subject of various decisions. I do not think it necessary to refer to several decisions. It is well settled that cause c-f action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment (see Read v. Brown, (9) 22 Q.B.D., 123 at 131. Secondly, if the evidence to support the claim includes a fact which has arisen outside the jurisdiction that will be a part of the cause of action. The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers, as was held by the Judicial Committee in Must Chand Hour's case, 15 I. P. 156, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. The material facts which the plaintiff has to prove in the present case in order to succeed are first that there was a rejection of the goods, secondly that the rejection is illegal or wrongful and thirdly, that the rejection has caused loss and damages to the plaintiff. If any of these ingredients has occurred outside the jurisdiction of this Court the plaintiff can-not be heard to say that the whole cause of action has arisen within the jurisdiction of this court. Lord Esher M. R in Read v. Brown (9) accepted the definition in Cook v. Gill (11) (1873) L.R. 8 C.P. 107, that the words, cause of action meant every fact which it would be necessary for the plaintiff to prove if traversed but it does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. As I have already indicated the foundation of the cause of action for wrongful or illegal rejection is that the Officer-in-charge, Ordnance Inspection Depot did not perform the contractual obligations. As I have already indicated the foundation of the cause of action for wrongful or illegal rejection is that the Officer-in-charge, Ordnance Inspection Depot did not perform the contractual obligations. The evidence in the present case is that the rejection occurred at a place outside the jurisdiction of this Court. I am therefore of opinion that the plaintiff cannot contend that the whole cause of action has arisen within the jurisdiction of this Court. 18. On behalf of the defendant several issues were raised. The plaintiff did. not lead any evidence and counsel for the plaintiff conceded that he did not want decision on any of the issues save and except on the two questions I have indicated above, viz., wrongful rejection and jurisdiction of the Court. Counsel for the defendant contended that under those circumstances the defendant was entitled to a judgment on the other issues in which the onus lay on the plaintiff to prove and succeed. The plaintiff relied on Exts A and B which were tendered as evidence. The plaint has to be proved at the trial. No one proved the plaint at the trial. Before the plaintiff is entitled to ask for price of the goods the plaintiff must show that the goods have been accepted. In the present case it is almost an admitted feature of the case that the goods have not been accepted. The plaintiff therefore is not entitled to price of the goods. Counsel for the plaintiff made a faint argument that the plaintiff was entitled to damages viz. the price of goods being damages suffered by the plaintiff. The conclusion is in my view the same because there is no unlawful rejection and the court has no jurisdiction to try this suit. Counsel on behalf of the defendant laid emphasis on two aspects of the case. First that though the plaintiff pleaded that property in the good had passed there was no evidence and the contract itself showed that until examination and acceptance of the goods there was no occasion for property in the goods having passed from the plaintiff to the defendant. In my view the defendant's contention is correct. No one has suggested on behalf of the plaintiff, nor is there any evidence to show that property in the goods passed. In my view the defendant's contention is correct. No one has suggested on behalf of the plaintiff, nor is there any evidence to show that property in the goods passed. The other aspect on which counsel for the defendant relied is that the time for delivery under the Schedule expired and thereafter there was no extension of time. Counsel for the plaintiff conceded that it was not the plaintiff's case that there was an extension of time. Counsel for the plaintiff contended that the plaintiff's case was that the defendant waived its right to demand delivery within the stipulated time and therefore it was open to the plaintiff to treat the contract as subsisting. Reliance was placed on paragraph 9 of the plaint. Waiver is a fact to be pleaded. Paragraph 9 of the plaint does not in my view plead waiver. It is alleged there that the Government never insisted on time being of the essence of the contract and acquiesced in supply being made after the period of one month. The further pleading is that both parties to the contract regarded and or agreed that time was not of the essence of the contract. Agreement appears in the plaint to be the basis of extension of time but that case was abandoned at the trial On behalf of the plaintiff reliance was placed on correspondence appearing at pages 48, 50, 56, 64, 66, 81, 86, 99 in Ex. A in support of four contentions. First, that there was waiver of stipulation, secondly, that there was acquiescence on the part of the Government in having goods after the expiry of the stipulated period of delivery thirdly that the Government never insisted on delivery of goods within the stipulated period fourthly that the Government made it impossible by their own conduct to perform it within time and finally it was contended that the agreement was not to treat time as of essence. On behalf of the defendant reliance was placed on correspondence to show first that in the beginning the contractor informed the defendant by letter dated October 13, 1944 that the plaintiff did not require any help in the raw materials and therefore the plaintiff could not be heard to suggest or contend that any impossibility was created by the acts of the defendant. There is no verbal evidence on this question and I am of opinion that the correspondence does show that the defendant made attempts to deliver the raw materials to the plaintiff but the plaintiff did not display any intention to require such help from the defendant in the beginning. The later correspondence shows that the plaintiff thereafter was asking not for supply of raw materials but other articles like diesel oil which the plaintiff required for the manufacture of the goods. 1 am unable to held that there was any waiver. Be that as it may in my view the question as to whether the defendant waived the term is academic in the present case for even if it were assumed that it was open to the plaintiff to rely on the case of waiver of the term of delivery the plaintiff would still have to fulfil the contractual obligations of delivery of goods before the plaintiff could be entitled to price of the goods. 19. Counsel for the defendant finally Contended that if the plaintiff's cause of action were that the contract was subsisting by reason of waiver of the term of delivery and the defendant repudiated the contract, it was not open to the plaintiff to succeed without first accepting such repudiation and secondly pleading the factum of such repudiation. It is not necessary to discuss this question in details in view of the law being well settled on the authority of Heyman v. Darwin, (12) L. R 1942 A. C. 356 that repudiation must be bilateral act of agreement between the parties. The defendant's contention on that point is sound. 20. In view of my conclusions on the two issues on which the plaintiff wanted decision, I am of opinion that this suit must fail. I, therefore, dismiss the suit. The defendant is entitled to costs. Certified for two counsel.