JUDGMENT Bishambhar Dayal, J. - This is a defendant's First Appeal arising out of a suit for recovery of damages on account of breach of contract. The plaintiff M/s Harinath Omkarnath is a registered firm carrying on the business of cloth merchants at Mathura. They described themselves as agents of certain cloth mills but in para. 1 of the plaint they stated that they are selling agents (Monopolists) for Mathura and have been selling cloth in wholesale manufactured by different Mills in Bombay Presidency, Baroda and Kanpur. Their case was that the defendants who were dealing in printed cloth had agreed to purchase from the plaintiffs the following quantity of cloth: * * * 2. The delivery according to the plaintiffs was agreed to be made at the respective Mills and the price was to be recovered by presentation of the railway receipts and bills at Mathura. Some quantity of cloth was taken delivery of by the defendants in pursuance of these contracts but on the 26th of May, 1943, the State of Uttar Pradesh promulgated the Cotton Cloth and Yarn (Future and Option) Control Order of 1943 on account of which prices considerably fell down in Mathura. The defendants falsely started taking refuge behind the said order and refused to take delivery of the rest of the goods. But subsequently when it was explained to them that the orders issued by the U.P. Government related only to Future and Option and had nothing to do with the goods purchased for actual delivery, the defendants consulted their lawyers and ultimately represented to the plaintiffs that they should obtain some concession from the Mills. Thereupon Sri Onkar Nath, one of the partners of the plaintiffs firm along with some representatives of the cloth dealers of Mathura went to the Mill owners. After a talk with the management of the Mills they, succeeded in obtaining a reduction of 25% in the quantity of goods from the Bharat Vijay Mills Ltd., Kalol (hereinafter called as Kalol Mills) and also got the date of delivery of the goods of Kalol Mills extended upto the 15th of September, 1943 instead of June, 1943. After a talk with the management of the Mills they, succeeded in obtaining a reduction of 25% in the quantity of goods from the Bharat Vijay Mills Ltd., Kalol (hereinafter called as Kalol Mills) and also got the date of delivery of the goods of Kalol Mills extended upto the 15th of September, 1943 instead of June, 1943. From the Ambika Mills Ahmedabad (hereinafter called the Ambika Mills) also they succeeded in getting a reduction of 15% in the price of the goods and also an extension of time for the delivery of goods upto the 15th of Aug., 1943 instead of July, 1943. The defendants got the contract in respect of six bales of the Kalol Mills cancelled by paying compensation to the plaintiffs but they failed to take delivery of the rest of the goods by the 15th of September, 1943. It was admitted in the plaint that on the 19th of Aug., 1943, the Central Government issued an order fixing prices of all kinds of cloth. But according to the plaintiffs, this order only applied to transactions entered into on or after the 19th of August, 1943. It was alleged that on the 24th of August, 1943 the plaintiffs offered one bale of Kalol Mills cloth to the defendants and they also presented a bill for the supply of the cloth of the Ambika Mills. The defendants accepted one bale of the Kalol Mills but merely signed the bill relating to the goods of the Ambika Mills and noted the words "seen" on that bill, that subsequently the defendants wrongly took the plea that they were prepared to accept the balance of the goods at the price fixed by the Government and were not prepared to pay at the agreed rate. In fact, the defendants did not want to take delivery of the goods and broke the contract. Ultimately the plaintiffs intimated to the defendants that the goods would be auctioned at their risk. After such intimation they sold the goods of the Kalol Mills at Rs. 20-10-0 per piece and the goods of the Ambika Mills were sold in three lots of seven bales each at Rs. 27, Rs. 27-12-0 and Rs. 28-10-0 per bale. The plaintiffs thereby suffered a loss of Rs. 12,378-8-0 for which they claimed a decree against the defendants. Details of the loss are given in the plaint. 3. 20-10-0 per piece and the goods of the Ambika Mills were sold in three lots of seven bales each at Rs. 27, Rs. 27-12-0 and Rs. 28-10-0 per bale. The plaintiffs thereby suffered a loss of Rs. 12,378-8-0 for which they claimed a decree against the defendants. Details of the loss are given in the plaint. 3. The defendants in this suit were Hiralal Kedarnath. In their written statement, they took up several pleas but we shall notice here only those with which we are concerned in this appeal. Their contention first of all was that according to their own showing the plaintiffs were mere selling agents of disclosed principals, i.e. the Mills and therefore they had no right to sue. It was urged in the alternative that if the plaintiffs were whole sale cloth dealers on their own account, they were bound by the U.P. Cotton Cloth Piece Goods (Future and Option) Prohibition Order, 1943 and the U.P. Cotton Cloth and Yarn Control Order, 1943, that the time of the delivery was of the essence of the contract, that the delivery was to be made at Mathura and not at the Mills and that the plaintiffs only supplied 12 bales of cloth of Kalol Mills within the stipulated period and failed to supply the rest of the bales of cloth according to the contract. The defendants further alleged that the plaintiffs also failed to supply goods regarding contract No. 9/132 (Ambika Mills) and they themselves broke the contract. The plaintiffs having themselves broken the contract, were not entitled to any relief. They also pleaded that the rates fixed by the Government Notifications were binding on the parties and whether the contract had been entered into before or after such fixation of rates, it was applicable to the deliveries made after the Notifications were issued. They also pleaded that the alleged auction by the plaintiffs was fictitious and was not binding upon the defendants. 4. Upon the pleadings the following issues framed by the court below are relevant for the purpose of this case :- Whether the time was the essence of contract ? When were goods to be delivered ? Whether the goods were agreed to be delivered at Mathura and price was to be paid on presentation of the railway receipt ? Whether any breach was committed by the defendants ? Are they liable for damages ? When were goods to be delivered ? Whether the goods were agreed to be delivered at Mathura and price was to be paid on presentation of the railway receipt ? Whether any breach was committed by the defendants ? Are they liable for damages ? Are the plaintiffs agents of the Mills and contracted with the defendants as agent and as such have got no right to maintain the suit? Whether any damage was suffered by the plaintiffs ? If so, how much ? 5. On issue no. 1, the trial court was of the view that since the time originally fixed under the contract was extended upto the 15th of September, 1943 in the Kalol Mills and upto the 15th of August, 1943 in the case of Ambika Mills, the question of time being of the essence was not of any importance. But as we will show later, the court was not right in this view. Even if the time was extended, it was necessary to decide whether deliveries were actually offered by the plaintiff within the extended time and if the deliveries were offered after the extended time, the question would still arise whether the extended time was of the essence. On issue No. 4 the finding of the court below was that delivery was to be made at the Mill gate. On issue No. 5 the court came to the conclusion that the defendants failed to take delivery and were liable for beach of contract. On issue No. 6 the court found that the defendants and used to supply goods to the defendants from their own stocks and thus they had a personal interest in the contract and were therefore entitled to bring the suit. On the last issue No. 7 the court came to the conclusion that the plaintiff were entitled to a decree for Rs. 12,351-13-0. In this connection the trial court also dealt with the question of the applicability of Ordinance No. 11 of 1944 issued by the Central Government, called the Cotton Cloth and Yarn (Contracts) Ordinance, 1944 read with the Cotton Cloth and Yarn Control Order, 1943 and came to the conclusion that these ordinances were not applicable to the transactions in question. 6. 6. These questions have been raised again in this Court and the contention of the learned counsel for the appellants is that the decision of the court below is wrong on all the points. We find it convenient to deal first with issue No.6 relating to the status of the plaintiffs because the finding of the court below that the plaintiffs were the selling agents of the Mills and entered into the contract as such has considerably influenced the Court in deciding other issues also. The evidence on record to our mind is wholly one-sided and clearly proves that the plaintiffs were not acting as the agents of the Mills at all but they were acting as dealers of cloth. They were purchasing goods from the Mills according to their own estimate of the market and were supplying goods to their constituents independently. Their transactions independently. Their transactions with the Mills as well as with the defendants and other constituents were those of principal to principal and the question of agency did not arise. The plaintiffs themselves have produced Sri J.M. Joshi who was the sales manager of the Kalol Mills. He has clearly stated in his examination-in-chief as follows: * * * 7. On these facts, the trial court merely inferred that the plaintiffs had personal interests in these contracts although the plaintiffs were acting as agents of the Mills. We are unable to agree with this conclusion of the trial court. These facts clearly indicate that the plaintiffs had not made these contracts as agents of the Mills at all but independently as dealers. 8. Regarding issue No. 1 it is sufficient to say that in commercial transactions time must be presumed to be of the essence see Mahabir Pd. v. Durgadatta, A.I.R. 1961 SC 990 and if one of the parties has failed to perform its part of the contract within the stipulated time, it must be deemed to have broken the contract. In this case time was extended by mutual agreement as stated above. The question to be considered now is which of the parties failed to perform its part of the contract within the extended time. * * * 9. The plaintiffs merely sent bills for the goods but they never sent the railway receipt as agreed upon. It is, therefore, clear that the breach of contract was on the part of the plaintiffs themselves. * * * 9. The plaintiffs merely sent bills for the goods but they never sent the railway receipt as agreed upon. It is, therefore, clear that the breach of contract was on the part of the plaintiffs themselves. 10. In coming to its conclusion on this point, as stated above, the trial court had been greatly influenced by its erroneous view that the plaintiffs were acting as agents of the Mills. In those circumstances the trial court thought that it was very natural for the plaintiffs to agree to deliver the goods at the gate of the Mills for they were entering into the contract on behalf of the Mills. But, as stated above, the elements of relationship of agent and principal between the Mills and the plaintiffs are completely lacking. The plaintiffs being at Mathura and having purchased large quantities of goods from the Mills on their own account they were making contracts with the defendants to sell those goods in smaller quantities and in those circumstances, their agreement to supply the goods to the defendants by goods train at Mathura was definitely more natural. In this connection the trial court also attached some importance to the fact that the bills which the plaintiffs sent to the defendants did not contain any charge for railway freight or labour charges for unloading at Mathura etc., and thought that this indicated that the goods were agreed to be delivered to the defendants at the Mill gate but that inference is not correct. In the first place, the bills were prepared after the dispute had arisen and the bills made by the plaintiffs themselves cannot be used in their own favour. Secondly, the contract only provided that the defendants were to get the R.R. at Mathura. This implied that the responsibility for booking the goods by rail to Mathura lay on the plaintiffs. But that did not necessarily mean that the plaintiffs did not charge from the defendants the amount of railway freight. Mathura could be settled as the place of delivery even if the defendants were liable for the railway freight. Since the railway receipt was to be handed over to the defendants against payment, they were naturally bound to go to the station and bring the goods from the railway godown to their own godown at their own expense. Mathura could be settled as the place of delivery even if the defendants were liable for the railway freight. Since the railway receipt was to be handed over to the defendants against payment, they were naturally bound to go to the station and bring the goods from the railway godown to their own godown at their own expense. It was not, therefore, necessary for the plaintiffs to include these expenses in their bills and to undertake all this liability which the defendants themselves could easily discharge in their own way. No inference could therefore be necessarily drawn from these bills about the Mill gate being the place of delivery. 11. we come now to the question of the applicability of the price fixed by the Government which the defendants insisted upon paying in respect of the goods to be delivered after passing of the Cotton Cloth and Yarn Control Order, 1943 by the Central Government. It is not denied that this Order fixed the price of the cloth of the kind which is in dispute in the present case. The contention of the learned counsel for the appellants and the finding of the court below is that this Order read with the Government of India Ordinance No. 11 dated the 13th of Jan., 1944 was applicable only to those transactions under which goods were sold on or after the 19th of August, 1943. In the present case, the finding of the court below is that the property in the goods had passed to the defendants on the 26th June, 1943 when the defendants assented to take delivery of the goods or latest on the 1st of July, 1943 when a settlement was arrived at between the Mills and the two representatives of the Mathura merchants who had gone to the management of the Mills and had agreed to take deliveries according to the altered terms. In the opinion of the trial court, the very fact that large quantities of goods were in existence in the Mill-godowns and the defendants had agreed to take their own goods out of that large stock was sufficient to come to the conclusion that the seller with the consent of the buyer had unconditionally appropriated the goods to the contract within the meaning of section 23 of the sale of Goods Act, and, therefore, complete in favour of the defendants. The sale was, therefore, complete in favour of the defendants was not in pursuance of any contract for sale but was in pursuance of a completed sale. We are unable to agree with this view of the law. Section 23 of the Sale of Goods Act is as follows:- "23 (1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied and may be given either before or after the appropriation is made. (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal he is deemed to have unconditionally appropriated the goods to the contract." 12. It cannot be denied in this case that the agreement was for supply of future goods which were to be prepared by the Mills. The plaintiffs had purchased large quantities of goods from the Mills. Out of that stock the plaintiffs had agreed to sell a small quantity to the defendants. There were thus two different contracts for sale of unascertained goods. One was by the Mills in favour of the plaintiffs and the other was by the plaintiffs in favour of the defendants. Two separate acts of appropriation were also necessary in respect of these separate contracts. So far as the contract between the Mills and the plaintiffs was concerned, appropriation within the meaning of Section 23 of the Sale of Goods Act could be completed if out of their own stocks the Mills had ear-marked or set apart some bales for delivery to the plaintiffs and had decided to give up their right to dispose of those bales to any one else. In respect of the contract between the plaintiffs and the defendants appropriation could have been affected only by some act of the plaintiffs whereby they ear-marked some specific bails out of the large stock they had held either in the Mill godowns or in their own godowns at Mathura, separately to be supplied under the contract. In these circumstances the mere existence of goods in the Mills godown was not enough to make appropriation within the meaning of this section even though the plaintiffs and the defendants agreed that the goods under the contract would be supplied out of that stock. What is `appropriation' has been very clearly brought out by Lord Goddard, C.J. in Furby v. Hoey, 1947 (1) All. ER 236. His Lordship observed as follows: "If a man enters a shop and seeing a bottle of gin points to it and says; "Please sell me that bottle," and the shop man gives it to him, there is then a sale of a specific chattle. If he says - the gin being under the counter, or elsewhere - "please let me have a bottle," and the shop man takes one out and hands it to him, and he accepts it, there is an appropriation from his stock with the buyer's express consent." A similar question arose before the Calcutta High Court in Angullia and Co. v. Sassoon and Co., ILR 29 Cal. 568 where M/s. Angullia and Co. purchased sugar from M/s. E.D. Sassoon and Co. 125 Tons were sold and had not been separated from the bulk and the question arose whether the seller had a right to sell any 125 tons claiming difference in price and it was held that the plaintiff could not recover loss on resale of any 125 tons of sugar. He was bound to show that he sold the specific articles which had been set apart for delivery to the defendant. 13. In the case of Motilal Jhun Jhunia v. Mool Chand, 1950 ALJ 583 delivering the judgment of the Division Bench, Malik, C.J. observed as follows: "It must, however, be clear that the goods that were sold were the goods that were meant for the buyer. The seller cannot fasten the liability on the defendant of sale of any goods that has resulted in a loss. The seller cannot fasten the liability on the defendant of sale of any goods that has resulted in a loss. He must establish that the goods that he resold were the goods which, so far as he was concerned, he had appropriated towards the contract and had intended to deliver to the defendant." Applying this test to the present case, it is obvious that at no stage had the plaintiffs anywhere set apart specific bales which would be supplied to the the defendants and which could not be dealt with in any other way. 14. Apart from this aspect of the matter, the contract in the present case was for supply of goods by rail at Mathura and for receiving the price there of on delivery of the railway receipt either through V.P.P. or through the Central Bank. The Defendants would not have received document of Title without making payment. In such a case the property in the goods can only pass when the documents of title has been handed over to the defendants and they have paid for the same. A very similar matter came up for consideration before their Lordships of the Supreme Court in Commissioner of Income-Tax v. Mysore Chromite Ltd., A.I.R. 1955 SC 98. Their Lordships observed as follows:- "The facts found in this case are that the assessee company shipped the goods under bill of lading issued in its own name. Under the contract it was not obliged to part with the bill of lading which is the document of title to the goods until the bill of exchange drawn by it on the buyers' Bank where the irrevocable letter of credit was opened was honoured..............Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers' Bank in London and the documents were delivered by the assessee company's agent, the Eastern Bank Ltd., London, to the buyers' Bank. This admittedly, and as found by the Appellate Tribunal, always took palce in London. This admittedly, and as found by the Appellate Tribunal, always took palce in London. It must, therefore, follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers' Bank against the acceptance of the relative bill of exchange." 15. Applying these principles to the present case, in our opinion, the property in the goods did not pass to the defendants because there had been no appropriation of particular bales to the defendants contracts nor had there been delivery of the railway receipt and payment of the price as agreed. 16. Learned counsel for the respondents strongly relied upon a case of Madras High Court where these very Orders and Ordinance came up for interpretation. A Division Bench of that High Court in M. Siddique & Co. v. P.L. Rangiah Chettiar, AIR 1948 Madras 122 held as follows:- "The sales in sub-sec. (2) mean concluded sales in which the property has passed from the seller to the buyer irrespective of the fact whether delivery has taken place or not. If a concluded sale has been made before 15-8-1943 the Ordinance will have no application to such a sale though delivery may take place or may be contemplated to take place after the date (i.e. 19-8-1943) of the order of the Textile Commissioner, because such delivery would take place not in pursuance of a contract for sale but in in pursuance of the sale. The Ordinance applies to all executory contracts whether before or after its commencement.........." We respectfully agree with the conclusion of the learned Judges in that case. On the point of applicability of the Ordinance in that particular case the learned Judges of the Court found that the sale was of specific goods and not of unascertained goods and they therefore came to the conclusion that the property in the goods passed as soon as it was shown to the defendant that the stock was ready for delivery and the defendant agreed to take delivery thereof. The facts of that case do not indicate that in the plaintiff's godown larger quantities of similar goods were present out of which the defendant's goods had to be separated out of which the defendant's goods had to be separated. The facts of that case do not indicate that in the plaintiff's godown larger quantities of similar goods were present out of which the defendant's goods had to be separated out of which the defendant's goods had to be separated. At p. 126, the learned Judges observed as follows:- " According to the appellants, by their letter of 6-7-1943 in which they informed the defendant that the bales sold to him were ready and asking him to take delivery, they definitely appropriated specific goods towards the contract entered into with the defendant........The subsequent correspondence proceeds entirely on the basis that definite goods had been appropriated and the defendant was only trying to evade taking delivery in the hope of securing the benefit of a Government Notification." Again at p. 127 (Second column) about the end of it they observed as follows: "Assuming that the original contract came to an end on the expiry of 31st July, 1943 the goods which had been set apart by the defendant under that contract had become ascertained goods and they were sold for a reduced price on 2-8-1943 and the defendant definitely agreed to it by his letter of 3-8-1943." 17. From these observations it appears that the goods sold in that case were specified goods which had already been appropriated and ascertained under Section 23 of the Indian Sale of Goods Act. The property in the goods having passed before the 19th of August, 1943, the ordinance could not obviously apply. The position in the present case is very different. Here there was no ascertainment or appropriation before the 19th of August, 1943. No title to any goods had passed before that date. On that date there was only a contract for the supply of goods. The supply was to be made later in pursuance of the contract. The Ordinance therefore clearly applied and price of the goods to be supplied could only be charged in accordance with its terms. 18. Another ground taken for holding that the Government prices were not payable in this case, was that the defendants were not dealers in cloth and the Ordinance applied only to sale "by one whole sale dealer" to another or by a wholesale dealer to a retail dealer. 18. Another ground taken for holding that the Government prices were not payable in this case, was that the defendants were not dealers in cloth and the Ordinance applied only to sale "by one whole sale dealer" to another or by a wholesale dealer to a retail dealer. The contention was that admittedly the defendants were printers of cloth and so they were "manufacturers" as defined in The Cotton Cloth and Yarn (Control) Order, 1943, which must be read along with the Ordinance aforesaid. We are unable to agree with this contention also. The word "dealer" has also been defined in Cl. 3(b) of the said Order as follows: "3(b) - "Dealer" means a person carrying on the business of selling cloth or yarn or both, whether wholesale or retail, and whether or not in conjunction with any other business and shall include master weavers of handloom cloth." Since the defendants purchase cloth and sell the same after printing, they are dealers though they may be doing so in conjunction with the business of printing, which may be a process of manufacture. As found above, the plaintiffs were wholesale dealers and the defendants were also dealers. The Ordinance aforesaid applied and made applicable the price fixed there under to supplies to be made under the contracts in suit. The plaintiffs admittedly did not agree to supply at the Government fixed rates. On this ground too they themselves committed the breach. 19. The result, therefore, is that the plaintiffs failed to prove any breach of contract on the part of the defendants. They themselves did not agree to supply goods according to law on the price fixed by the Textile Commissioner and sold their own goods, the ownership of which had not passed to the defendants. They were, therefore, not entitled to recover that loss from the defendants. No other basis for the recovery of any amount was put forward. We, therefore, allow the appeal and dismiss the plaintiffs' suit. But taking into consideration all the circumstances of the case particularly the fact that there was difficulty in booking and price had been reduced by the Ordinance, we leave the parties to bear their own costs.