JUDGMENT 1. This second appeal is by the plaintiff against the concurring judgment of the Courts below dismissing his suit for recovery of damages for breach of contract. 2. The plaintiff's case was that in the month of Bhadva, Samvat 2002, the defendants had entered into four contracts agreeing to sell in all 85 Manis of cotton at certain rates which were to be applied on Fagun Sudi 15, Samvat 2002. As the defendants failed to supply the cotton, the plaintiff assessed dameges on the basis of the difference between the market rate of cotton on that date and the agreed rate. 3. The defendants denied the contracts and pleaded that even if they were entered into they amounted to wagering contracts within the meaning of Circular 5 of Samvat 1970 and were not entered into in accordance with the necessary formalities required by that circular. Accordingly, it was claimed that the contracts were void. In reply, the plaintiff contended that the Circular was impliedly repealed by the Contract Act and that it was also unconstitutional. 4. Both the Courts blow found hat there were four contracts between the parties as alleged by the plaintiff and they did not amount to wagering contracts; but as the necessary formalities required by the Circular had not been complied with, the contracts were held to be void and unenforceable. 5. The material part of the circular has been quoted in the judgment of the lower appellate Court. According to the Circular, only those transactions are considered to be wagering contracts where there is no intention of the parties at the time of entering into them to perform the contracts by actual delivery of the goods sold or purchased. In other cases where such intention exists, the contracts are valid. But the circular lays, down that the contracts must be; (i) in writing, (ii) signed by both the parties; and (iii) a stamp of one anna should be affixed to the document incorporating the contract. 6. So far as the first requirement of the Circular is concerned, both the Courts below have come to the conclusion on the evidence on record that there was an intention that the goods would be actually delivered. This is a finding of fact binding in second appeal and it has rightly been accepted by the appellant. 7. 6. So far as the first requirement of the Circular is concerned, both the Courts below have come to the conclusion on the evidence on record that there was an intention that the goods would be actually delivered. This is a finding of fact binding in second appeal and it has rightly been accepted by the appellant. 7. Before I take up the question whether the second requirement was satisfied in the present case, I may discuss the question of the validity and applicability of the Circular. The first objection that has been taken against its Validity is that under section 30 of the Gwalior Contract Act, which provided for wagering contract, the Circular should be deemed to hove been repeated impliedly. The Gwalior Contract Act contained a section corresponding to section 10 of the Indian Contract Act which as follow: "Nothing herein contained shall affect any law in force in Gwalior State by which any contract is required to be made in writing or in the presence of witnesses or any law relating to the registration of documents." This clause saves the provision of the Circular in so far as the formalities into prescribed there under forentring into the contract is concerned. That Circular was not expressly repald by the Gwalior Contract Act. Further, there is nothing in section 30 of the Gwalior Contract Act which is repugnant to the provisions of the Circular. The necessary conditions of implied repeal are that the two laws could not stand together. There is no such conflict between the Circular and section 30 and therefore the argument that the Circular should be deemed to have been impliedly repealed is without any substance. 8. The second objection taken against the Circular is that it became discriminatory after the formation of the Madhya Bharat State, as it applied only to a part of the State which was included in Gwalior, and not to the other parts. There are two answers to this objection the first is that the contracts were entered into if the year 1945 when the Constitution of India was not in force. The Articles in Chapter III are prospective and do not affect the existing laws in so far as they apply to earlier contracts. The contracts entered into before the constitution would therefore be governed by the law as it then stood. The Articles in Chapter III are prospective and do not affect the existing laws in so far as they apply to earlier contracts. The contracts entered into before the constitution would therefore be governed by the law as it then stood. Secondly, the existence of different laws in different parts of the same State is not in all cases hit by Article 13 of the Constitution. The very fact that the different States united to form one State is sufficient to support the existing laws prevailing in the different States for a reasonable time until they would be integrated into uniform laws. I agree that the circular cannot be attached as unconstitutional on the ground of being discriminatory. At any rate, the contracts entered into prior to the commencement of the Constitution would be governed by the Circular so far as their validity is concerned. 9. It has now to be seen whether the provisions in the Circular were mandatory or directory. The question was considered in several decision of the Gwalior High Court and also in Ghasilal Vs. Devilal, 1955 MBLJ 780. Chaturvedi, J. was personally inclined to the view that contracts which did not comply with the formation required by the Circular did not become unenforceable on that account but observed as follows:- "The first appellate Court however relies upon a judgment of the Gwalior State High Court reported in G.L.R. Samvat 2003, 146 in which it was held that the Circular No.5 of 1970 clearly laid down that if any agreement about any transaction is not reduced to writing, then a suit based on that oral agreement would not be cognizable by a civil Court. I may also mention here that this view was taken at that time in several cases also. I confess that so far as the circular is concerned though I hold different views, yet the matter does not appear to be res integra. The matter is concluded by many decisions on this point and the learned lower appellate Court was right in following those decisions The Gwalior Contract (Act No. 1 of Samvat 2000) did not repeal this provision embodied in Circular No.5 of Samvat 1970 but incorporated a provision under section 10 laying down that nothing here contained shall affect any hw in force in Gwalior State by which any contract is required to be made in writing, etc. This should conclude the matter." For the same reasons, I must hold that the matter is no longer open to dispute and on the principle of stare decisis the interpretation which was put on the circular must he accepted even though a different view could be possible. Accordingly, I hold that the provisions in the Circular were mandatory and failure to perform the necessary formalities would render a contract void and unenforceable. 10. Here the third question about affixing one anna stamp on the document incorporating the contract may be considered the entries relating to the contract in the plaintiff's account books are signed by the defendants; but they do not bear the necessary stamp of one anna. Shri Garg for the appellant has argued that the affixing of one anna stamp is only for purposes of revenue and as a special provision in section 35 of the Gwalior Stamp Act provided that the understanding could be validated on payment of stamps duty and penalty, the defect is not affixing the necessary stamp could be cured by following this procedure. The difficulty, however, is that when the suit was filed and the documents were tendered in evidence, the Gwalior Stamp Act was no longer in force and had been replaced by the Indore Stamp Act which is identified with the Indian Stamp Act. Under the first proviso to section 35 of that Act, instruments chargeable with duty of one anna cannot be validated on payment of stamp duty and penalty. The fact that the agreements were entered into prior to the coming into force of the Indore State Act is not material for the purposes of the applications for section 36 of the Stamp Act. The material date for the application of that section is the date on which the deficiently stamped document is tendered in evidence. Accordingly, the omission to affix one anna stamp on the account books of the plaintiff could not be cured by paying the stamp duty and penalty. 11. Coming to the facts now, both the Courts below, as I have said, have found that in fact the four contracts were entered into. This conclusion is based on the entries in the account books of the plaintiff and the statements of the brokers in whose presence the contracts were entered into. 11. Coming to the facts now, both the Courts below, as I have said, have found that in fact the four contracts were entered into. This conclusion is based on the entries in the account books of the plaintiff and the statements of the brokers in whose presence the contracts were entered into. It has, however to be noted that the entries made in the account books of the plaintiff are not signed by the defendants. The Courts below have therefore rightly held that contracts were not in writing. So far as the plaintiff is concerned, I find that none of the three formalities required by the Gwalior Circular are proved to have been complied with. 12. Shri Garg, for the appellant, however, contended that as the defendants were called produce their account books and as they failed to do so, a presumption should be drawn under section 39 of the Indian Evidence Act that the account books were stamped and executed to the manner required by law According to him, it must be assumed that the three formalities required by the Gwalior Circular have been complied with in the case. 13. On going through the record I find that the plaintiff had not given any notice to the defendants to produce their account books till the stage of evidence. The notice which Shri Garg refers to is the summons which was sent to the defendants to appear as witnesses for the plaintiff along with their account books for Samvat 2001 and Samvat 2002. I do not agree that this was sufficient compliance of the condition contained in section 89 of the Indian Evidence Act. The notice contemplated under that section is the notice referred to in section 66 as also in sections 163 and 164 of that Act. Such a notice must be in the prescribed by law. The provision for asking for discovery and inspection of documents in the possession of the adversary are contained in Order 11 of the Code of Civil Procedure and the provision about notice appears in Rule 16 of that order. The party desiring his opponent to produce documents can apply for discovery under Rule 12 and after the affidavit of documents under rule 13 has been filed can request the Court to compel his adversary to produce the documents under rule 15. The party desiring his opponent to produce documents can apply for discovery under Rule 12 and after the affidavit of documents under rule 13 has been filed can request the Court to compel his adversary to produce the documents under rule 15. It is only after such a notice has been given that the provisions contained in Sections 63, 89, 163 and 164 of the Evidence Act and allied provisions of the Civil Procedure Code are attracted. After such a notice, the adversary knows that the party giving notice has a right to adduce secondary evidence and certain' inferences could be drawn against him under section 89 of the Indian Evidence Act. 14. The notice which was given by the plaintiff in this case was under order 16, rule 21, Civil Procedure Code. All that the defendants could infer from such a notice was that they were required to produce the documents when they would enter the witness box and at must they would be cross-examined with reference to those documents. The consequence of non-production of the documents in such cases would be to draw adverse inference against him on matters on which the plaintiff had otherwise adduced some evidence. The technical consequences which flow from the provisions in section 89 of the Indian Evidence Act could not flow from such summons. I hold that no presumption regarding the compliance of the formalities of the Gwalior Circular can be drawn by the omission of the defendants to produce the documents as witnesses. It is another matter that if the plaintiff had led evidence about the compliance of any of the formalities, his evidence would be accepted as it would be supported by an adverse inference by the defendants, failure to produce their account books. 15. The plaintiff has in the witness box stated that he had signed the entries in the account books of the defendants. His witnesses Kanhaiyalal s/o Shankarlal (P.W. 2) and another Kanhaiyalal s/o Ramchandra (P.W. 6) have stated that the plaintiff did this in their presence. The Courts below have held that the defendants were in possession of the relevant account books. Although when the plaintiff was being examined, the defendant had really sated in Court that he was in possession of the accounts for Fagun, Samvat 2002. The Courts below have held that the defendants were in possession of the relevant account books. Although when the plaintiff was being examined, the defendant had really sated in Court that he was in possession of the accounts for Fagun, Samvat 2002. I find that in his statement as a witness the defendant Mangilal has admitted that: ^^esjs ikl Qkxu ds lkSnksa ds lkSns [kkrs gSaA^^ I agree that the defendant was in possession of the account books and has not produced them in Court. Accordingly, it can be inferred that if be had produced them, they would have gone against him on the point that the plaintiff had signed them. I hold that the plaintiff had signed the con tracts in the account books of the defendant. 16. That, however, is not enough compliance of the Gwalior Circular. The signatures of both the parties are necessary. It is nowhere stated by the plaintiff that the defendant had also signed the contracts. Accordingly, the necessary formalities as required by the Circular have not been complied with and the contracts are therefore void and of no effect in law. 17. The question of the validity of contracts in comes where they are entered into in contravention of the formalities required by law has been considered in the context of contracts entered into by Municipal corporation as Also by Government. In those cases, the contracts are required to be in writing and signed by certain officials having due authority In Ranendra Nath Vs. Dhuliyan Municipality ( AIR 1956 Cal. 203 ) a contract with the municipality was held invalid for non-compliance with statutory requirements. A similar view was taken in Municipal Board Agra Vs. Babu Ram Lal (AIR 1936 All. 723). In Dominion of India Vs. Preety Kumar ( AIR 1958 Pat 203 ) it was held that if contracts are made in contravention of the requirements of section 175 (3) of the Government of India Act, Courts cannot give effect to such contract'. I need not refer to any more cases there is come conflict of opinion whether any advantage derived both, Corporation or Government under such a contract can be restored to the opposite party under section 65 or section 70 of the Indian Contract Act, but that is not relevant for our purposes. I need not refer to any more cases there is come conflict of opinion whether any advantage derived both, Corporation or Government under such a contract can be restored to the opposite party under section 65 or section 70 of the Indian Contract Act, but that is not relevant for our purposes. Whatever may be the position in the case of executed contracts, the decisions in the context of executory contracts are uniform. Such contracts not complying with the statutory formalities cannot be enforced at all. In the instant case the plaintiff is not claming for their restitution of the consideration paid under a void contract, not is he claiming any compensation on the basis of quantum meruit on the principles enunciated under section 70 of the Contract Act. He is claiming damages for breach of the contracts and to award such damages is nothing less than allowing enforcement of the contracts. This cannot be done, as the contracts are void. 18. Accordingly, the Courts below were right in refusing any relief to the plaintiff. The appeal is dismissed with costs.