JUDGMENT 1. THIS is an appeal against a judgment of Ray, J. dated April 24, 1959. The facts in the case have been elaborately set out in the judgment of my learned brother Sen, J. and I need not repeat the same. I will only indicate the broad facts. Both the appellant and the respondent are habitual dealers in the sale and purchase of jute goods, which they do in a big way. By three contracts No. 2 12562 dated 22nd November 1952, No. 2 12619 dated 1st December, 1951 and No. 2/12655 dated 10th December, 1951 the respondent agreed to buy from the appellant diverse quantities of B. Twill, delivery in the months of April, May and June, 1952. In respect of the April delivery there were three settlement contracts as a result whereof the appellant became entitled to a sum of Rs. 50,175, which was duly paid by the respondent to the appellant and we are no longer concerned with the same. In respect of the may delivery, there were three settlement contracts as a result whereof the appellant became entitled to a sum of Rs. 67,275/- from the respondent. This amount was not paid and was the subject-matter of the suit. This amount has been decreed in the court below and against it no objection is being preferred. The real objection involved in this appeal is in respect of the June delivery. The case of the appellant is that in respect of the June delivery, it tendered delivery orders to the respondent but the respondent failed and neglected to accept and for to pay for the same. It is stated that the appellant after due notice resold the goods by public auction and thereby suffered a loss of Rs. 91,109/7/- which it has claimed in the suit. By contract No. 2/13093 dated 19th April, 1952 the respondent agreed to buy from the appellant certain quantities of B. Twill deliverable in June, 1952. It is stated on behalf of the appellant that it tendered delivery orders in respect of the said goods but the respondent failed and neglected to accept and/or pay for the same whereupon the appellant after due notice resold the goods by public auction and suffered loss and damages amounting to Rs. 37,203/ -. 2. APART from these contracts for b. Twill, there were certain transactions in hessian. 37,203/ -. 2. APART from these contracts for b. Twill, there were certain transactions in hessian. On 10th January, 1952 by contract No. 2112799 the respondent agreed to buy from the appellant a certain quantity of hessian goods, delivery April, May and June 1952. It is stated that the appellant tendered delivery orders and the respondent paid for and took delivery of the April instalment, but failed and neglected to accept and/or pay for the May and June instalments, whereupon the appellant on due notice resold the same by public auction and suffered loss and damage amounting to Rs. 57,38114/ -. It is not disputed that all the contracts were in the standard forms of the Indian Jute Mills Association (hereinafter referred to as the I. J. M. A. contract form). 3. THE suit was instituted by the appellant against the respondent for the amount stated hereinbefore, as loss and damage suffered by them. In the suit, the appellant has claimed a decree for Rs. 2,32,968/11/- with interest thereon at 5 per cent until realisation together with interest and costs. On or about the 19th December, 1957, the parties agreed that the claim for damages would not be on the basis of resale but on the following footing which appears from the minutes dated 19. 12. 1957 :- "it is agreed between the parties that in the event of the plaintiff succeeding in proving a tender in terms of the contract and a breach of the contract on the part of the defendant, the measure of damages allowable to the plaintiff will be the difference between the contract price and the market price as on the basis of the market price prevailing on 30th June 1952 in respect of the June portion and on the basis of the market price prevailing on the 31st May 1952 in respect of the May portion. " 4. FOR our present purposes, we are concerned with the markets price prevailing on the 30th June, 1952. According to the evidence given on behalf of the appellant, loss and damages suffered by it would amount to Rs. l,70,437/8/ -. According to the respondent, the appellant failed at the trial of the suit to prove the market price on the 30th June, 1952. According to the evidence given on behalf of the appellant, loss and damages suffered by it would amount to Rs. l,70,437/8/ -. According to the respondent, the appellant failed at the trial of the suit to prove the market price on the 30th June, 1952. This is a matter which will have to be considered by us, and has been fully dealt with in the judgment of my learned brother. When the suit first came up for trial in the lower court, it was adjourned for the purpose of applying for an amendment. In the plaint as originally filed, there was no pleading of custom or usage. By an order dated 7th september, 1956 the appellant plaintiff was allowed to amend the plaint by making out an alternative case of custom and usage. The exact custom and usage pleaded is important for our purposes and paragraph 19a of the plaint must be set out below: "19a. The tenders made by the plaintiff of the Mill's Pucca delivery Orders as mentioned in paragraphs 9, 14 and 18 of the plaint were duly made in terms of the contracts between the parties. In any event the Delivery Orders tendered in respect of the Contracts mentioned in the plaint were and are proper tenders by virtue of trade, customs and usage of the jute Trade in Calcutta. Particulars of such customs and/or usages are set out hereunder. (i) In the Calcutta Jute market there is a usage that upon the issue by the Mills to the buyers of delivery Orders in respect of jute goods purchased, the purchasers are regarded as the owners of the goods with the right to transfer these goods by endorsing the delivery Orders and that the Delivery orders are regarded as documents of title to the goods covered by them. (ii) At no time till actual delivery is given, is there any appropriation of the goods either to the Contracts or delivery Orders, but notwithstanding the absence of this appropriation, the holders of the Mill's delivery Orders (known in the market as Pucca Delivery Orders) are regarded by the trade as the owners of the relevant goods. (ii) At no time till actual delivery is given, is there any appropriation of the goods either to the Contracts or delivery Orders, but notwithstanding the absence of this appropriation, the holders of the Mill's delivery Orders (known in the market as Pucca Delivery Orders) are regarded by the trade as the owners of the relevant goods. (iii) That the Pucca Delivery orders as representing the goods, pass from hand to hand by endorsement being received by the successive buyers against cash payment and are used in the ordinary course of business authorising the holder thereof to receive the goods which they represent irrespective of the forms in which the Mill's Pucca delivery Orders are couched. (iv) That the tender of Mill's delivery Orders on due date to the buyer, irrespective of the form in which they may be couched, in exchange for cash, was and is a fair and valid tender under the standard India Jute Mills Association contract Forms, and were and are treated as such. " In the court below, seven issues containing sub-issues were framed which are to be found in the judgment of ray, J. printed at pages 348 to 350 of the Paper Book. At page 350 has been set out the questions relating to custom and usage which were to be determined by the Court. I will not deal with the issues in detail, as they have been adequately dealt with by my learned brother, in his judgment which I have had the advantage of persuing, I will only endeavour to deal with the most important disputes between the parties which is as follows : All the contracts have a clause for payment, more or less in the following terms:- "payment to be made in cash in exchange for Delivery Orders on sellers, or for Railway Receipts or for Dock's Receipts or for Mate's receipts (which Dock's or Mate's receipts are to be handed by a dock or Ship's officer to the Seller's representatives )." The 'sellers' in the contracts are mills like Tort Gloster, 'fort William,' 'auckland', or simply described as 'european Mills'. That delivery orders on european Mills were tendered in respect of the June instalment of B. Twills and the May and June instalments of hessian is not disputed. That delivery orders on european Mills were tendered in respect of the June instalment of B. Twills and the May and June instalments of hessian is not disputed. The contention of the respondent, however, is that these delivery orders were not adequate, and were not in conformity with the contract and they were not bound to accept and pay for the same. Therefore the dispute upon this point is in a narrow compass, but of great importance to dealers in Jute in Calcutta. The arguments before us and in the court below have been full and elaborate upon this point, which is in keeping with the importance of the subject. Shortly put, the dispute may be analysed as follows: The delivery orders that were tendered were on European jute Mills, but in respect thereof the appellants were not the original purchasers. They were delivery orders issued by the said Jute Mills to various parties, other than the appellant and it is the case of the appellant that according to custom and usage these delivery orders passed from hand to hand until they came into the hands of a buyer who wished to receive actual delivery by asking the mill concerned to put the goods alongside a ship for the purposes of export. The exact form of the custom and usage which has been pleaded and proved will have to be considered in greater detail, but briefly speaking, the case of the respondent is that the delivery orders which were tendered to them did not put them in a position to acquire the goods. They were in a form which called upon them to give an undertaking and enter into a substantive contract with the mills concerned on terms which were not identical with the contract between the parties and were also subject to restrictions like seller's lien etc., and as such they were not put in a position to acquire the goods in terms of the contract. 5. THE following examples will illustrate the point: (1) In Delivery Order dated 25. 6. 52 issued by the Fort Gloster jute Mill (Ex. 5. THE following examples will illustrate the point: (1) In Delivery Order dated 25. 6. 52 issued by the Fort Gloster jute Mill (Ex. I), the following terms are found: (i) that the company shall not be bound to recognise any transfer thereof, (ii) that the goods are held covered under the company's insurance policies against risk of fire while at the Mill until 1st October 1952, after which date a charge of eight annas per bale per month will be levied by the company for this purpose until removal, (iii) that on and after the 1st October, 1952, the company will charge a godown rent of eight annas per bale per month for the purpose until removal, (iv) that the company has a lien on the goods for the above charges. These charges etc are not mentioned in the contract between the parties in this appeal. 6. THE evidence is that when the holder of a delivery order asks for registration as a buyer, the Mills insist on a form of application (Ex. DDD)which contains the following terms :- "dear Sirs, in requesting you to register us as the Holders of the above Delivery order (s), we agree that all contract terms covering it, are to be applicable and to be deemed to have been signed by us that we accept all obligations of the original Buyers. " Unless such an undertaking is given, the holder of a delivery order other than the original purchaser is not registered and cannot obtain delivery of the goods. (See Rameswar Qs. 280, 281 and 282, Raymond Qs. 43, 69). It is contended by the respondents that the delivery orders were not in terms of the contract and the respondents were not! bound to accept the same. If this is true, it must be held that the appellant had committed a breach of contract and not the respondent, and that this point has been rightly decided against the appellant in the court below. On the other hand, if the appellant succeeds in showing that the delivery orders were in terms of the contract, then they are entitled to succeed in the suit and are entitled to a decree for damages. In order to decide this dispute, it is necessary to scan, not only the contracts between the parties but consider closely the custom and usage which has been pleaded and/or proved. In order to decide this dispute, it is necessary to scan, not only the contracts between the parties but consider closely the custom and usage which has been pleaded and/or proved. So far as the contracts are concerned, they are in respect of goods manufactured by european Mills and the particular problem with which we are concerned is more or less common in all the contracts, all being in the standard I. J. M. A forms, to the effect that payment was to be made in cash in exchange for delivery orders on sellers. Upon this point two main disputes have been raised. The first dispute is as follows: according to the respondent, the word "seller" in the contract means what it says, namely the party selling under the contract in question, as opposed to the party buying, who may be described as the "buyer". According to the appellant, this expression means the original seller. This may be explained in the following manner: It is said that according to the usage and custom of the Jute and Hessian market in calcutta, the Mills (In the instant case, european Mills) issue delivery orders in respect of purchases made by them by buyers (i.e. the original buyer ). These delivery orders represent the goods to which they relate, and freely pass from hand to hand, and the last holder demands the goods from the mill concerned, which places it alongside the ship for purposes of export. The Mill which issues the delivery order is referred to as the 'original seller', v The second dispute is that, according to the respondent the "delivery order" that was contemplated under the contracts was one which would entitle them to obtain delivery on the terms of their own contracts. It is not disputed that the appellant tendered contracts on European Mills as mentioned in the contracts, but the delivery orders were issued by the Mills concerned, upon other parties and not the appellant, and the delivery orders by themselves did not entitle the respondent to obtain delivery from the mills in terms of their own contract. It is not disputed that the appellant tendered contracts on European Mills as mentioned in the contracts, but the delivery orders were issued by the Mills concerned, upon other parties and not the appellant, and the delivery orders by themselves did not entitle the respondent to obtain delivery from the mills in terms of their own contract. It has been proved that they would have to give an undertaking to the Mills to the effect that they would take the delivery of the goods in terms of the contract between the Mills and the original buyer, and they would have to enter into a fresh agreement with the mills to that effect. The terms of the contract between the Mills and the original buyers are not necessarily identical with the terms of the contract between the parties to the suit. They contain terms as to charge and lien for unpaid purchase money etc. and other terms which are not there in the contract between the parties to the suit. Also, the delivery orders contain a stipulation that the Mills were not bound to recognise any transferee excepting the original seller, It has been proved that, at the time of issuing delivery orders by the Mills, the goods were not appropriated to the contract and not always paid for by the original buyers. According to the respondent, the delivery orders were not in compliance with the contract between the parties and the delivery orders which were issued to third parties and containing restrictive clauses which would compel them to enter into a fresh contract with the Mills and which delivery orders were subject to the over-riding stipulation that the Mills were not bound to recognise them and that the mills had a lien for unpaid moneys, could not be said to be delivery orders in compliance with the contract between the parties. In other words, the respondent contends that under their contract, they were bound to accept and pay for delivery orders, provided that it put them at once in a position to receive the goods in terms of their own contract, without any new conditions attached to the same. As the delivery orders in question did not satisfy the test, the respondent was not bound to accept them. If this defence is substantiated then the appellant's claim fails completely and the question of loss and damages does not arise. As the delivery orders in question did not satisfy the test, the respondent was not bound to accept them. If this defence is substantiated then the appellant's claim fails completely and the question of loss and damages does not arise. Both parties have relied on a number of decisions of the Supreme court as also of this High Court, but it is conceded that the exact, point involved in this case as outlined above, has not been conclusively determined in any of the authorities cited. Before we deal with the point, therefore, it will be necessary and convenient to deal with the authorities to see what is the legal position, as has been established by these decisions. It is only in the light thereof, that we have to decide the exact dispute that has arisen in this case. 7. THE first decision to be considered is a Bench decision of this Court prescribed over by Sir Lawrence H. Jenkins (1) Anglo-India Jute Mills Co. v. Omademull, I. L. R. (1910) 38 Cal. 127. The facts in that case were as follows: on the 1st March, 1909 the Anglo-India jute Mills Co., the defendant in the suit, sold to Messrs. Janki Dass and Co. Principal, 3,00,000 yards hessian cloth, standard make quality weight and size as mentioned in the contract, at Rs. 7-12 per 100 yds, free alongside export vessel in the port of Calcutta subject to certain conditions of which the following were material :- "3. Payments to be made in cash in exchange of delivery order on sellers or for Railway Receipts or for Dock Receipts or for Mates receipts (which Receipts are to be handed by Ship's Officer to the sellers' representative), etc. " 5. Delivery of the said goods to be given and taken as follows: ready payment against pucca delivery order". On 2nd March, 1909 the defendant company issued three delivery orders, each for 1000 yards hessian cloth in respect of the contract. The delivery orders were in the following form : - "no. M 1/50. To The Manager, middle Mill. Please deliver to Messrs. Janki dass and Co's Principals or order 50 bls., 1,00,000 yds. hessian cloth 40 in 71/2 ozs., 9 by 9 each 2,000 yds., (one hundred thousand yards only ). Ready shipment Rs. 113. For Anglo-India Jute Mills Co., Ltd. Pro. Duncan Brothers and Co. J. B. Craik, agents." 8. M 1/50. To The Manager, middle Mill. Please deliver to Messrs. Janki dass and Co's Principals or order 50 bls., 1,00,000 yds. hessian cloth 40 in 71/2 ozs., 9 by 9 each 2,000 yds., (one hundred thousand yards only ). Ready shipment Rs. 113. For Anglo-India Jute Mills Co., Ltd. Pro. Duncan Brothers and Co. J. B. Craik, agents." 8. THE plaintiffs were approached to advance money on the security of these three delivery orders. One of the plaintiffs, Luchminarain, took the three delivery orders to the office of the defendant company and showed them to Mr. Young, an assistant in the firm, who in reply to his enquiry, whether the delivery orders were correct or in order, informed him that they were "all right". Thereupon, the plaintiffs lent and advanced Rs. 18,000/-on the strength of the delivery orders which were endorsed to them by way of pledge. As this money "was not repaid, the plaintiff demanded delivery from the Mill of the goods represented by the said three delivery orders, which the Mill refused. A suit was instituted by the plaintiff on one of the delivery orders which was released absolutely to the plaintiff. It was contended by the plaintiff that the delivery orders were known in Calcutta as 'pucca mills Delivery Orders' and by the usage and practice in Calcutta the said orders were taken and understood to be documents of title or equivalent thereto and passed freely from hand to hand by indorsement and were dealt with in the market for raising money either by sale or pledge, and that the defendant; company and their agents were well aware of such usage and practice. The plaintiffs claimed that they were entitled to receive the goods from the defendant, company and/or its value as damages. The defendant company resisted the plaintiffs' claim on the ground that they were unpaid sellers of the goods and they had a lien on them so long as they remained in their possession and the price or any part of it remained unpaid. It was denied that the delivery orders in suit were taken to be equivalent to documents of title by any trade usage in Calcutta. It was alleged that the delivery orders represented no ascertained or specific goods nor had any appropriation been made to the delivery orders. It was denied that the delivery orders in suit were taken to be equivalent to documents of title by any trade usage in Calcutta. It was alleged that the delivery orders represented no ascertained or specific goods nor had any appropriation been made to the delivery orders. The plaintiffs' title to the delivery orders and to any goods represented thereby was denied, and it was pointed out that the plaintiffs had entered into the agreement of the 8th April, 1909, with full notice of the defendant company's claims. It was further contended that no grounds had been laid to found any estoppel. It was held that delivery orders in calcutta passed from hand to hand by indorsement and were sold and dealt with in the market. No formal document or assignment was necessary, but a sufficient indorsement was sufficient. The very fact that the delivery order was in favour of "messrs. Janki Dass and Co.'s Principal or order" indicated that the document was transferable by indorsement. It was further held that the defendant company was estopped from denying that cash had been paid for the goods to which the delivery order related and they could not claim to be entitled to a lien as against the plaintiffs. The defendant company were further estopped from denying that they had appropriated goods of the required quantity and description to the delivery order and that they held these goods on behalf of the plaintiffs. Several points must be noted in the decision. Firstly, that the delivery order was payable not only to Janki Dass and company's principal but to their order. Secondly, the delivery order did not contain conditions like the instant case. There was no stipulation that the Mill had the discretion to accept the transferee as the purchaser or not, nor that they would have a lien on the goods nor that the transferee would have to enter into a fresh contract with the mills by giving an undertaking etc. The next point to be remembered is that the transferee actually got a confirmation from the Mills that the delivery order was in order, meaning thereby that the goods would be delivered in accordance with delivery orders. This naturally gave rise to an estoppel, since the plaintiff acted on the strength of such representation and changed its position. The next point to be remembered is that the transferee actually got a confirmation from the Mills that the delivery order was in order, meaning thereby that the goods would be delivered in accordance with delivery orders. This naturally gave rise to an estoppel, since the plaintiff acted on the strength of such representation and changed its position. The next case to be considered is a decision of the Supreme Court (2)Duni Chand Rataria v. Bhuwalka brothers Limited, A. I. R. 1955 S. C. 182. The facts in that case were as follows : the appellant entered into three contracts, two dated the 8th August 1949 and the third dated the 17th August 1949 with the respondent, agreeing to purchase 1,80,000 bags of 'b' Twill at the price of Rs. 134/4/0 per 100 bags, 1,80,000 bags at the rate of Rs. 135/4/0-per 100 bags and 90,000 bags at the rate of Rs. 138/- per 100 bags respectively for October, November and December 1949, deliveries to be in equal monthly instalments on terms and conditions contained in the relative contract forms of the Indian Jute Mills Association. In September, 1949 the respondent expressed its inability to deliver the goods under the said contracts and requested the appellant to settle the same by selling back the goods under the said contacts to the respondent at the price of Rs. 161/8/0 per 100 bags, whereupon three settlement contracts were accordingly entered into between the parties under which an aggregate sum of Rs. 1,15,650 became payable by the respondent which it failed and neglected to pay in spite of repeated demands. The appellant filed a suit for recovery of the said sum with interest and costs. The respondent contested the appellant's claim on the ground that it never dealt in the sale and/or purchase of jute goods involving actual delivery of possession thereof, nor did it possess or have control over any godown and other means of equipment necessary for the storage and delivery of jute goods, and, therefore, the three settlement contracts were in violation of the provisions of the West Bengal Jute Goods Future ordinance, 1949, and as such void. The trial court negatived the contention of the respondent and decreed the appellant's claim. The trial court negatived the contention of the respondent and decreed the appellant's claim. The appeal court, however, came to the conclusion that although delivery orders in such cases passed from hand to hand, there was no payment of actual price or taking of delivery of the goods except by the ultimate shipper who took delivery of the goods and paid the price to the Mills. As such, the contracts were violative of of the provisions of the said ordinance and not enforceable. From this an appeal was taken to the Supreme Court which set aside the order of the court of appeal. Bhagwati, J. quoted with approval the judgment of the trial court and stated as follows : - "the Trial Court accepted the contention of the Appellant that the delivery orders are dealt with in the market as representing the goods and that they pass from hand to hand by endorsement, being received by the successive buyers against each payment and are used in the ordinary course of business authrorising the endorsee to receive the goods which they represent. The learned Trial Judge further observed: now visualise the long chain of contracts in which the defendant's contract is one of the connecting links. The defendant buys from its immediate seller and sells to its immediate buyer. As seller it is liable to give and as buyer it is entitled to take delivery. As seller it receives and as buyer it gives shipping instructions. Similar shipping instruction is given by each link until it reaches the Mills. The mills deliver the goods alongside the steamer. Such delivery is in implement of the contract between the Mills and their immediate buyer. But eo instanti it is also in implement of each of the chain contracts including the contract between the defendant and its immediate buyer and the contract bet the defendant and its immediate seller. Not only does the Mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods from its immediate seller and gives actual delivery of possession of jute goods' to its immediate buyer. Not only does the Mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods from its immediate seller and gives actual delivery of possession of jute goods' to its immediate buyer. 'prima facie' at the moment of the delivery alongside the steamer there is appropriation and the passing of the property in the goods and the giving and taking of actual delivery of possession thereof all along the chain at the same moment. " 9. THE learned Judge proceeded to say as follows : "the manufacturer of jute goods does not come normally into direct contact with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be impossible to carry on the business. If the narrow construction which was put by the Appeal Court on the expression "actual delivery of possession" was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the Government and the only reasonable interpretation of the expression "actual delivery of possession" can be that actual delivery as contrasted with mere dealing in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of posssession. Once this conclusion is reached it is easy to visualise the course of events. The mate's receipts or the delivery orders as the case may be, represented the goods. The seller handed over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery of possession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The seller handed over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery of possession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof. " 10. SEVERAL things should be observed in respect of this judgment. The first is that the exact point which was considered in that case was whether the transaction was one, "involving actual delivery of possession" as mentioned in the said Ordinance, and what was held was that the operation was one "involving actual delivery of possession. " It was never held that the transfer of the delivery order, although the goods represented thereby were not appropriated to the contract, by itself amounted to a transfer of possession of the goods or the title thereto. In fact, the case was not one relating to delivery orders to all, and there was nothing to show that the goods were appropriated to the contract. It was a case of a settlement contract. If the matter stood there, the position would be one of some difficulty. Fortunately however, the position has become clearer by virtue of certain later decisions of the supreme Court, which I shall now proceed to consider. In (3) Jute and Gunny Brokers limited and others v. The Union of indian, (1961) 2 S. C. . A. 227, this precise point came to be considered, namely, whether title to goods passed to the holder of a Pucca Delivery Order, although the goods were not ascertained. The facts in that case were briefly as follows : The Mills had sold various quantities of Jute Goods to buyers to whom Pucca Delivery Orders were issued, but the goods were yet unascertained. In the meanwhile, the goods were requisitioned by Government in the hands of the Mills, under the D. I. Rules, as they were urgently required to be shipped to Argentine, in exchange of food. In the meanwhile, the goods were requisitioned by Government in the hands of the Mills, under the D. I. Rules, as they were urgently required to be shipped to Argentine, in exchange of food. It was inter alia contended by the Mills that the requisitions were invalid, as they were not the owners of the goods, the title being in the holders of the Pucca Delivery orders. The contention was rejected by the Supreme Court Wanchoo, J. said as follows:- "the contention on behalf of the Union of India is that property in the goods cannot pass in law to the holders of the Pucca Delivery orders till the goods are actually appropriated to the particular order ; therefore, as in this case it is not in dispute that no goods were actually appropriated towards the pucca Delivery Orders concerned, the property in the goods did not pass to the holder thereof but was still in the mills. Reliance in this connection is placed on Section 18 of the Indian Sale of Goods Act, no. III of 1930. That section lays down that "where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained'. In the present case, as we have already said, it is not in dispute that the goods covered by the Pucca Delivery orders are not ascertained at the time such orders are issued and ascertainment takes place in the shape of appropriation when the goods are actually delivered in compliance therewith. Therefore, till appropriation takes place and goods are actually delivered, they are not ascertained. The contract therefore represented by the Pucca delivery Orders is a contract for the sale of unascertained goods and no property in the goods is transferred to the buyer in view of section 18 of the Indian Sale of Goods Act till the goods are ascertained by appropriation, which in this case takes place at the time only of actual delivery. The appeal court in our opinion was therefore right in holding that the property in the goods included in the Pucca delivery Orders did not pass to the holders thereof in view of Section 18 of the Sale of Goods Act in spite of the decision in the case of the anglo-India Jute Mills Co., I. L. R. 38 cal. 127, (supra). 127, (supra). What that case decided was that in a suit between a holder of a Pucca Delivery Order be he the first holder or a subsequent holder who had purchased the Pucca Delivery Order in the market and the Mills, there will be an estoppel and the Mill will be estopped from denying that cash had been paid for the goods to which the delivery order related and that they held the goods for the holder of the Pucca Delivery order. That case therefore merely lays down the rule of estoppel as between the Mills and the holder of the Pucca Delivery order and in a suit between them the Mill is estopped from denying the title of the holder of the Pucca Delivery orders ; but that does not mean that in law the title passed to the holder of the Pucca Delivery Order as soon as it was issued even though it is not disputed that there was no ascertainment of goods at that time and that the ascertainment only takes place when the goods are appropriated to the Pucca Delivery orders at the time of actual delivery. The appeal court was, in our opinion, right in holding that the effect of the decision in the case of Anglo-India Jute Mills Co., I. L. R. 38 Cal. 127 was not that the property in the goods passed by estoppel and that that case only decided that as between the seller and the holder of the Pucca Delivery order, the seller will not be heard to say that there was no title in the holder of the delivery order. That case was not dealing with the question of title at all as was made clear by Jenkins, C. J. but was merely concerned with estoppel. In the present case the question whether the Government of India will be estopped is a matter which we shall consider later ; but so far as the question of title is concerned, there can be no doubt in view of section 18 of the Sale of Goods Act that, title in these cases had not passed to the holders of the Pucca delivery Orders on September 30, 1946, for the goods were not ascertained till then, whatever may be the position of the holder of the Pucca delivery Orders in a suit between them and the Mills to enforce them. " 11. " 11. AFTER a consideration of these cases, we may deduce the following principles : - (1) In the Calcutta jute markets there is a custom or usage whereby mills sell goods, which have not yet been appropriated to the contract, and may not have come into existence at all, to purchasers for the purpose of export. Such contracts are entered into in the standard I. J. M. A. Forms. There are a number of such forms containing terms that are not identical. (2) In such a case, the Mills normally issue; Pucca Delivery Orders, against cash payment, goods to be put alongside the ship when demanded by the holder of the Pucca Delivery order. (3) These Pucca Delivery Orders denote the goods and pass from hand to hand for a consideration, until they get into the hand of a purchaser who wishes to actually ship the goods. This purchaser demands delivery of goods, whereupon the Mill delivers the goods alongside the ship. (4). The Pucca Delivery Order is not a document of title and no title passes to the purchaser until the goods are appropriated to the contract by the seller. (5) When the final buyer takes actual delivery, eo instanti all the intermediate contracts are deemed to have been implemented and possession is deemed to have been given to each buyer all along the chain. But before such delivery, no intermediate buyer can be said to be in actual possession of the goods. (6) Although a Pucca Delivery order is not a document of title and title does not pass by merely issuing a pucca Delivery Order, if the transaction is such that the purchaser of a Pucca delivery Order is not put on notice that the entire consideration has not been paid or that there is any impediment in the delivery of the goods when demanded by the holder of the Pucca delivery Order, the party issuing the fucca Delivery Order will be estopped, (i) from denying that the price has been paid (ii) from denying that it has not got the goods in its possession which it has contracted to sell. 12. IN this background, let us consider certain provisions of the Indian sale of Goods Act to which reference has been made on behalf of the appellant. 12. IN this background, let us consider certain provisions of the Indian sale of Goods Act to which reference has been made on behalf of the appellant. The first is the definition of "document of title to goods" in section 2 (4) (Of the Sale of Goods Act. That definition is as follows : -" 'document of title to goods' includes a bill of lading, dock warrant, warehouse keepers' certificate, wharfingers' certificate, railway receipt, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented. " It is argued that a Pucca delivery Order is issued in the ordinary course of business as proof of the possession or control of goods or in any event authorises or purports to authorise the possessor of the document to receive the goods thereby represented. This definition must, however, be read with the provisions contained in section 18 of the Indian Sale of Goods Act which runs as follows: "where there is contract for sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the the goods are ascertained. ' if the goods are unascertained, then title cannot pass and the holder of a pucca Delivery Order can neither be in possession nor control of the goods. It is impossible to visualise a person being the owner of a document of title although he has no title to the goods which it represents, nor possession thereof. As regards the last part of the section, the authority to receive the goods must be unconditional and absolute. If the transferee of a delivery order has to perform new obligations and enter into new stipulations, to obtain the right to the delivery of the goods, then it does not satisfy this definition and the delivery order cannot be described as a document of title. A case was cited (4) Morvi Mercantile bank Ltd. v. Union of India (1965)2 S. C. A. 187. In that case, what was being considered was the position of a railway receipt, and as to whether it was a document of title which can be pledged. A case was cited (4) Morvi Mercantile bank Ltd. v. Union of India (1965)2 S. C. A. 187. In that case, what was being considered was the position of a railway receipt, and as to whether it was a document of title which can be pledged. It was held that a railway receipt was a document of title which could be the subject-matter of a pledge. It will be observed, however, that a railway receipt is expressly mentioned in Section 2 (4) of the Indian Sale of goods Act, as being a document of title. It is not so in the case of a pucca delivery order. For the reasons aforesaid, a pucca delivery order is not necessarily a document of title and does not necessarily empower a transferee to obtain the goods that it represents. The appellants could only take advantage of the decisions in anglo-India Jute Mill Co. V. Omade mull, (supra), and Dunichand Rataria v. Bhawalka Bros. Ltd., (supra), if they were able to say that the Mills were estopped from putting forward any objection to their receiving the goods in terms of their own contract. In other words, if the Pucca Delivery Orders which were tendered to the respondent, enabled them to approach the Mills and demand delivery of the goods on the terms of their own contract with the appellant, and if the mills were estopped from denying such claim, then the pucca delivery orders would be a valid tender against the contracts between the appellant and the respondent. The principle of estoppel is laid down in section 115 of the Indian Evidence Act, it is couched in the following terms:-"estoppel.-When one person has by his declaration, act or omission, intentionally caused or permitted any other person to believe a thing to be true and to act upon such belief, neither he not his reprsentative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. " In the case of Anglo India Jute Mills v. Omade Mull, (supra), the estoppel was obvious. The plaintiffs had approached the defendant, on whose behalf they were assured that the delivery orders were correct and in order, and it was on the strength of this representation that the plaintiffs lent and advanced sum of Rs. 18,000/- to the pledgers. " In the case of Anglo India Jute Mills v. Omade Mull, (supra), the estoppel was obvious. The plaintiffs had approached the defendant, on whose behalf they were assured that the delivery orders were correct and in order, and it was on the strength of this representation that the plaintiffs lent and advanced sum of Rs. 18,000/- to the pledgers. After that they were clearly estopped from denying that the pledgers had not paid the consideration money or that they had not the goods. In the present case, can it be said that there was any estoppel? For this purpose it is necessary to consider a few facts: 13. (1) ALL jute contracts are to be made on the standard forms of the Indian Jute Mills Association, known as I. J. M. A. forms. There is, however, not one standard form but many kinds of forms. For example, the form of contract no. 2113093 dated 9th April. 1952 which is annexure 'e' to the plaint, and a copy of which is set out at pages 39-45 of pare I of the paper book, has 14 clauses, whereas contract No. 2/13094 dated 19th April 1952, Ex. B7 a copy of which is set out at pages 220-227 of part II of the paper book, has 15 clauses. The clause No. 15 at page 226 of the said paper book is a very substantial clause, which deals with detention of goods, charging of demurrage, boat costs and handling charges etc. While the last-named contract has 15 clauses, contract No. 2/13095 dated 19th April 1952 being Ex. B7, a copy of which is set out at pages 228-235 of part 11 of the paper book, has got 16 clauses. Clause 15 is again a clause of substance and deals with a war period clause. The contract, Ex. 23/2 which is set out at pages 259-266 of part II of the paper book, is again a peculiar contract in which most of the items are left blank and which contains 14 clauses of which clause 6 is entirely different and deals with signed specification of gross and nett weights. There are several clauses in other forms which are wanting in this contract. Even individual clauses differ. For example, clause 14 of contract Ex. There are several clauses in other forms which are wanting in this contract. Even individual clauses differ. For example, clause 14 of contract Ex. 23/3 at pages 267 to 275 of part II of the paper book, contains an additional stipulation as to insurance of war risk. It is obvious that if there is a chain of contracts in I. J. M. A. form, it does not mean that each contract will be in the same form. Therefore, the conditions in the agreement between the mill and the original buyer is not likely to be the same as between the intermediate buyers. That is the reason why the indian Jute Mills Association has made a rule that the Mills were not bound to recognise a transferee unless he agrees that he will take delivery of the goods on the same terms, and conditions as the original buyer. Then what is the position ? An intermediate buyer like the respondent in the present case, enters into a contract for the purchase of jute goods on certain terms and conditions. It is given a Pucca Delivery Order which will not entitle it to get delivery of the goods on the terms and conditions of it own contract, but it is compelled to give an undertaking that it will enter into a fresh contract with the mills on terms which are different. This is a thing which it never stipulated to do. In fact, the variations in the contract may be substantial. It may relate to payment of costs and charges which the intermediate buyer never stipulated to pay to its own sellers. (2) Since the I. J. M. A. forms are not the same, the Mills take the precaution of putting in a term that they are not bound to accept the transferee. In fact the transferee is not accepted unless he agrees to give an undertaking that he will purchase on the same terms and conditions as the original purchases. Since there is a clear term informing the purchaser that the Mill is not bound to recognise the transferee, there can be no estoppel, where the delivery order is transferred. In fact the transferee is not accepted unless he agrees to give an undertaking that he will purchase on the same terms and conditions as the original purchases. Since there is a clear term informing the purchaser that the Mill is not bound to recognise the transferee, there can be no estoppel, where the delivery order is transferred. In other words, far from there being a representation on behalf of the Mill that delivery will be given to the holder of the delivery order, as a matter of fact, there is a clear representation that it will not be so done. (3) One of the corner stones of the cases cited on estoppel is that there is a representation that cash had been paid. Here also the instant case differs widely. The evidence shows that in many cases payments had not been received by the Mills when the delivery order was issued. It is further in evidence that in some cases no cash was paid but only a cheque was handed over at the time the delivery order was issued. It may be that when the cheque is presented it may not be paid. For these reasons, the Mills introduced a stipulation as to lien for unpaid consideration or unpaid charges. These are new stipulations which do not find a place in the contract of the parties themselves. 14. THE stand taken on behalf of the appellant is es follows : It is argued that the contract provided for payment to be made in cash in exchange for delivery order on seller issued by any european Mill. It is argued that this stipulation can only mean that payment will be made against delivery orders and not against goods. All that the appellant had to do was to tender delivery orders on European Mills. As long as it did that, it had no other duty to perform. In my opinion, this stand cannot be accepted. It is true that the contracts in suit stipulated that payment will be made in cash against delivery orders of European Mills, but such stipulation could only mean that cash would be paid against a tender of delivery orders which would enable the purchaser to obtain the goods in terms of its own contract with its own seller. It is true that the contracts in suit stipulated that payment will be made in cash against delivery orders of European Mills, but such stipulation could only mean that cash would be paid against a tender of delivery orders which would enable the purchaser to obtain the goods in terms of its own contract with its own seller. A delivery order which stipulates that the Mills might not accept the transferee as a buyer at all, or not treat it as a buyer until it was prepared to execute a new contract containing new and onerous terms, cannot be a delivery order which the purchaser was bound to accept in performance of its own contract. It was next argued that according to an English case, (5) Ant jurgens Margarinefabrieken v. Louis dreyfus and Company, (1914) 3 KB. 40 a document may be a document of title even if it refers to goods which are unascertained. This would be entirely violative of section 18 of the Indian sale of Goods Act. The exact provisions of the English Factors Act of 1889 and the English Sale of Goods Act of 1883 under which the case was decided have not been shown to us. In any event, we must be governed by the provisions of our own statute. The Supreme court, in the case of Jute and Gunny brokers Limited and others v. The union of India, (supra), has pointed out that in this country no title can pass in goods unless the goods are ascertained, in terms of Section 18 of the Indian sale of Goods Act. It is also argued that the word "seller" in the contract in suit must mean original seller. I cannot say how the contracts can be so construed as to signify that the words "buyer" or "seller" can be other than the parties to the particular contract. If the word "seller" in clause (3) of the contract is to mean the original seller, the same meaning may be attributed to the "seller" in all parts of the contract. This cannot possibly be done. However, this point is not of great importance because the buyers would have no objection to accept a delivery order even on original sellers, provided they were enabled on the strength of it, to obtain delivery of the goods on terms and conditions of their own contract. This cannot possibly be done. However, this point is not of great importance because the buyers would have no objection to accept a delivery order even on original sellers, provided they were enabled on the strength of it, to obtain delivery of the goods on terms and conditions of their own contract. As has been explained above, the delivery orders which were tendered on the respondents did not enable them to do so. It is for this reason that the tender of the delivery orders must be held to be invalid. It is impossible to accept the proposition that simply because a contract stipulated for payment in cash against delivery orders issued by european Mills, the buyers would be compelled to accept delivery orders which may contain all kinds of conditions foreign to the contract between the parties themselves. There is nothing to show that they ever stipulated to accept such delivery orders in fulfilment of their contracts. It was in realization of this formidable difficulty that the plaintiffs amended their plaint and introduced paragraph 19a containing a pleading of custom and usage, in order to save the contracts, if possible. But the effort has failed. Firstly, the custom and usage pleaded have not been proved. Secondly, the custom and usage as pleaded are invalid because of the following reasons : - (1) It has been pleaded that the title passes without appropriation by the seller of the goods to the contract. This is in direct violation of the provisions of section 18 of the Indian Sale of Goods Act. A custom and usage cannot be held to be valid which is contrary to a provision of law. (2) It is pleaded that the holder of the delivery order is to receive the goods, irrespective of the form in which the Mill's Pucca Delivery Orders are couched. This means that the custom and/or usage pleaded makes terms and conditions valid which are contrary to the express terms of the contract between the parties. It is violaive of Proviso 5 to section 92 of the indian Evidence Act, which lays down that a usage of custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description, may be proved, provided that annexing of such incident would not be inconsistent or repugnant to the express terms of the contract. It is violaive of Proviso 5 to section 92 of the indian Evidence Act, which lays down that a usage of custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description, may be proved, provided that annexing of such incident would not be inconsistent or repugnant to the express terms of the contract. Thus, while the Mills have stipulated that they are not liable to recognise the transferee, by means of an express condition in the delivery order, it is said that they are bound to recognise the transferee and to deliver the goods to the transferee. (3) It has been pleaded that there is a custom or usage to the effect that the tender of Mill's delivery orders on due date to the buyer, irrespective of the form in which they may be couched, in exchange of cash, is a fair or valid tender under the standard I. J. M. A. contract form. This is wholly an unreasonable custom or usage and cannot be accepted. The parties to a contract are emtitled to receive goods on the terms of their own contract. They cannot be compelled to ignore the terms of their own contract and be compelled to accept new and onerous terms not contained therein, including the obligation to enter into fresh contracts containing new and onerous terms in order to receive goods against their own contract. 15. FOR the above reasons, I agree with the conclusion reached by my learned brother that the tender of the delivery orders in this case were not valid tenders under the contract and that the respondents rightly refused to accept the said tender or to pay for the same. In the circumstances, the suit was rightly dismissed in the court below and I agree with my learned brother that the appeal should fail and be dismissed with costs. Certified for two counsel, As the cross-objection is not pressed I agree that it should be dismissed with no order made as to costs thereof. Sen, J. : 16. THIS is an appeal against the judgment and decree passed by the hon'ble Mr. Justice A. N. Ray in a suit brought by the plaintiff-appellant for the recovery of Rs. 2,58,968/11/0 paise with interest thereon at 6 per cent per annum until realization. Sen, J. : 16. THIS is an appeal against the judgment and decree passed by the hon'ble Mr. Justice A. N. Ray in a suit brought by the plaintiff-appellant for the recovery of Rs. 2,58,968/11/0 paise with interest thereon at 6 per cent per annum until realization. There was an alternative prayer for an enquiry into damages and decree for the amount as might be found due upon enquiry. The plaintiff Juggilal Kamlapat is the owner of the Jute Mills called "mahadeo Jute mills Company" and "sri Ambica Jute mills Limited", the latter being a manufacturer of jute goods. In brief he deals in purchase and. sale of jute goods and has also storage equipment in addition to his function as a habitual shipper of jute goods to foreign countries. By three contracts - No. 21 1256. 2 dated 22nd November 1951, No. 2/12619 dated 1st December 1951 and No. 2/12655 dated 10th December 1951 the defendant Paratabmull Rameshwar agreed to buy from the plaintiff diverse quantities of B Twills, delivery whereof was to be made in the months of April, May and June 1952, respectively. In respect of the goods deliverable under these contracts the parties entered into three settlement Contracts. As a result of such contracts the plaintiff Juggilal kamlapat became entitled to a sum of Rs. 50,175/- which was paid to the plaintiff by the defendant. In so far as the May instalment was concerned there were three settlement contracts as a result whereof the plaintiff became entitled to a sum of Rs. 67,275/- from the defendant. As the defendant did not pay this amount this has formed part of one of the claims of the plaintiff. In so far as the June delivery was concerned in terms of the contracts aforesaid the defendant failed and neglected to pay for and take delivery of the goods although delivery orders were duly tendered to the defendants. This being the position, the plaintiff after due notice resold the goods and on such resale suffered a loss of Rs. 91,109/7/0 details whereof have been given in paragraph 10 of the plaint. 17. IT is also stated in the plaint that on the 10th of January 1952 in terms of contract No. 2/12799 the defendant agreed to buy from the plaintiff hessian, delivery whereof was to be in equal instalments in April, May and June. 91,109/7/0 details whereof have been given in paragraph 10 of the plaint. 17. IT is also stated in the plaint that on the 10th of January 1952 in terms of contract No. 2/12799 the defendant agreed to buy from the plaintiff hessian, delivery whereof was to be in equal instalments in April, May and June. In respect of this contract also delivery orders were duly tendered but on defendant's refusal to accept, the hessian goods were resold resulting in a loss to the plaintiff amounting to Rs. 57,381/4/0. Again in paragraph 17 of the plaint it has been stated that by a contract No. 2113093, the defendant agreed to buy from the plaintiff certain quatities of B Twill deliverable in June 1952. In respect of this contract also, the defendant failed and neglected to accept the delivery orders tendered by the plaintiff. As a result thereof, the plaintiff sold the goods with a notice to the defendant and suffered a loss amounting to Rs. 37,203/ -. The total claim, according to the plaintiff, as stated before amounted to Rs. 2,58,968/11/0. 18. IT may be mentioned in this connection that the plaintiff averred in the plaint that all the contracts aforesaid were in the standard Indian Jute mills Association Form. In order to substantiate his case, the plaintiff by amending the plaint has stated in paragraph 19a that the tenders made by the plaintiff of the Mill's Pucca Delivery orders were duly made in terms of the contracts between the parties and that they were valid tenders by virtue of trade customs and usage of the jute trade in Calcutta. It is profitable here and now to mention the contentions as raised in paragraph 19a, as the decision in this appeal will greatly hinge upon the question whether the Mill's pucca Delivery Orders should be treated as documents of title by virtue of trade customs and usage and whether they actually represent the goods as mentioned therein. It is profitable here and now to mention the contentions as raised in paragraph 19a, as the decision in this appeal will greatly hinge upon the question whether the Mill's pucca Delivery Orders should be treated as documents of title by virtue of trade customs and usage and whether they actually represent the goods as mentioned therein. They are as follows : - (i) In the Calcutta jute market there is a usage that upon the issue by the Mills to the buyers of delivery orders in respect of jute goods purchased, the purchasers are regarded as the owners of the goods with the right to transfer these goods by endorsing the delivery orders and that the delivery orders are regarded as documents of title to the goods covered by them ; (ii) At no time till actual delivery is given, is there any appropriation of the goods either to the contracts or delivery orders, but notwithstanding the absence of this appropriation the holders of the mill's Pucca Delivery Orders (known in the market as Pucca delivery Orders) are regarded by the trade as the owners of the relevant goods; (iii) That the Pucca Delivery orders as representing the goods pass from hand to hand by endorsement being received by the successive buyers against cash payment and are used in the ordinary course of business authorising the holder thereof to receive the goods which they present irrespective of the forms in which the Mill's Pucca delivery Orders are couched; (iv) That the tender of Mill's delivery Orders on due date to the buyer, irrespective of the form in which they may be couched, in exchange for cash, was and is a fair and valid tender under the standard India Jute Mills Association contract Forms, and were and are treated as such. According to the plaintiff the defendant was at all material times fully aware of the trade custom and usage and, as such, his refusal to accept the delivery orders makes him liable to the claim as made in the plaint. The defendant in the written statement confends that the plaintiff is not a habitual dealer within the meaning of West Bengal Sale of Goods act V of 1950 and that the contracts are void and hit by this Act. The defendant in the written statement confends that the plaintiff is not a habitual dealer within the meaning of West Bengal Sale of Goods act V of 1950 and that the contracts are void and hit by this Act. The specific defence is that the settlement contracts are bad by reason of contravention of the said Act inasmuch as they provide for payment of margin. It is urged that the delivery orders are not delivery orders on sellers and that they are not transferable by endorsement. The next contention was that the plaintiff had no title to the delivery orders and that the documents described as delivery orders on the face of it relate to goods deliverable under contracts between third parties and, as such, the tender was not in terms of contract between the parties. It has also been averred in the written statement that the goods mentioned in the delivery orders are not of the description mentioned in the contracts between the parties and that the plaintiff is not entitled to payment of the claim, also for the reason that in breach of contract he failed and neglected to tender the inspection order. On these grounds the claim of the plaintiff was resisted and in the additional written statement he denied the custom and usage as made out in the plaint by way of amendment. The defendant pin-points his case that there was no appropriation of the goods either to any particular order or to any delivery order and, as such, for want of appropriation of the goods, the alleged custom and usage should be considered as inconsistent with the terms of the written contract. 19. SEVERAL issues were framed in this case and the learned Judge was pleased to answer them after consideration of the evidence and the law in this matter. The learned Judge decreed the plaintiff's suit in part in so far as a claim of Rs. 67,275/- in respect of settlement contract was concerned. In so far as the remaining claim was concerned, the suit was dismissed. For this reason, the present appeal has been preferred against the judgment and decree of the learned Judge. The defendant, in his turn, also filed a crossobjection against the decree of Rs. 67,275/- but we are not concerned in this case with the cross-objection as it was not pressed at the time of the hearing. For this reason, the present appeal has been preferred against the judgment and decree of the learned Judge. The defendant, in his turn, also filed a crossobjection against the decree of Rs. 67,275/- but we are not concerned in this case with the cross-objection as it was not pressed at the time of the hearing. The learned Judge came to the conclusion inter alia that the delivery orders are not documents of title and they could not in any manner represent the foods, mainly for the reason that the delivery orders would not by themselves entitle the holder thereof to delivery of goods, as under the terms of the contract the endorsee was required in the first instance to register his name with the Mills on giving an undertaking. It was also held that there was no absolute right to delivery of goods on the strength of the delivery orders except on an undertaking and such an undertaking was entirely a new agreement between the Mills and the endorsee applicant, who sought for registration of his name. On an analysis of the evidence he also found that the custom as pleaded in paragraph 19a of the plaint was not established and that the alleged custom was contrary to the provisions of sections 18 and 23 of the Sale of Goods Act. The goods, according to the learned Judge, were unascertained goods and the point of time when property passed in unascertained goods cannot be varied by custom. He has pointed out that the statement of the plaintiff's witnesses destroyed the custom as alleged and that they also show that they were contrary to the terms of the written contract as appearing in the delivery orders. The learned Judge also found that there was no evidence that the buyer was bound to take delivery order or that the only evidence was that there was a practice of passing delivery orders from hand to hand. 20. OTHER relevant findings of the learned Judge will be dealt with in their appropriate places at the time of discussion of the submissions made by the learned Counsel of both the sides. 20. OTHER relevant findings of the learned Judge will be dealt with in their appropriate places at the time of discussion of the submissions made by the learned Counsel of both the sides. In order to appreciate the arguments made by the learned Standing counsel on behalf of the appellant it is necessary that the details as to the contracts and the corresponding delivery orders should be set out below : - (1) Contract No. 2/12562 dated 22nd November, 1951. This contract refers to 90,000 bags of B Twills made from Narrow Cloth Stripe or European jute. In this document, it is important to note the third item in the terms and conditions which runs as follows : - (i) Payment to be made in cash in exchange for Delivery orders on Sellers or for Railway receipts or Dock Receipts, or for mate's Receipts. In terms of this contract, delivery orders Nos. 5782 and 5783 on Fort gloster Jute Manufacturing Company limited were tendered with the same letter dated 28th June 1952, the delivery orders Nos. 4822 and 4833 on Fort Gloster jute Company Limited were also tendered. They have been printed on pages 351 and 352 onwards in the Second volume of the Paper Book. (2) Re: Contract No. 2/12619. It will appear that delivery orders on fort William Jute Company Limited (Nos. 4818-4821 for 25 bales of B twills) were tendered. This delivery order has been printed from pages 363 to 372 of the Paper Book, Second volume. (3) Re: Contract No. 21112655. The delivery orders Nos. 4814 to 4817 of the Fort William Jute Company limited for 25 bales of B twills were tendered. They have been printed from pages 374 to 385 of the Paper Book, volume II. (4) Re: Contract No. 2113093. Delivery order No. 19081 of Auckland jute Company Limited for 50 bales of b twills and delivery order No. 75/264d dated 23rd June 1952 for 50 bales were tendered. The delivery order No. 19081 has been printed at page 396 of the paper Book, Second Volume. Re : Kamarhatti Jute Mills limited. The delivery order has been printed at page 402 of the Paper Book, second Volume. (5) Re: Contract No. 2/127199. With regard to 1,00,000 yards of Hessian goods the delivery orders Nos. The delivery order No. 19081 has been printed at page 396 of the paper Book, Second Volume. Re : Kamarhatti Jute Mills limited. The delivery order has been printed at page 402 of the Paper Book, second Volume. (5) Re: Contract No. 2/127199. With regard to 1,00,000 yards of Hessian goods the delivery orders Nos. 46/65 dated 26th June 1952 and 46/66 dated 26th June 1952 of Kamarhatti Jute mills were duly tendered on the 10th January 1952. These delivery orders have been printed respectively on pages 392 to 396 of the Paper Book, Second volume. 21. IN all the delivery orders of tort Gloster Jute Manufacturing company and Fort William Jute Mill company there is a clear recital to the effect that the company shall not be bound to recognise any transfer thereof. In the delivery order of Auckland jute Mills it appears that the following conditions were incorporated :- "on the expiration of above date until removal goods will be at owner's risk unless cover against Fire renewed. Mills will on request and at owner's expense renew cover against fire under mill policies as may be arranged. " Furthermore, in the delivery order of the Kamarhatti Company Limited, there is an express provision that the registered holder (or his authorised representative) to inspect the goods at all reasonable times. 22. THE learned Standing Counsel, in the first instance, has argued on behalf of the appellant that the point for consideration is whether tender of pucca Delivery Orders containing restrictive clauses such as appearing in Fort william and Fort Gloster Mill's Pucca delivery Orders are valid tenders under the contract. The contracts as printed from pages 11 to 45 (Paper book, Part I), according to the learned standing Counsel do not provide specifically for the tender of any particular delivery order of any particular mill. They only provide for tender of pucca Delivery Orders of an European mill and, as such, in spite of the restrictions as aforesaid with regard to fort Gloster Jute Mills and Fort william Jute Mills there is a custom to the effect that such restrictions are to be given a go-by and the delivery order pass from hand to hand and what is contemplated under the custom Is that symbolical delivery of the goods is enough. He submits emphatically that the Pucca Delivery Orders, being documents of title transferred by endorsement for consideration, constitute constructive delivery of the goods and pass on ths right to receive the goods by the endorsee. In support of his contention he has referred us to the evidence of Raweswar, Philip Raymond and Cochran and has argued that their evidence clearly shows that tender of such Pucca Delivery Orders has always been treated as valid tender under the contract. In considering whether his arguments aforesaid are tenable in law, we have, in the first instance, to see whether the Pucca Delivery Orders are documents of title within the meaning of sec. 2, cl. (4) of the Indian Sale of goods Act. Document of title of goods as defined therein "includes a Bill of lading, dock warrant, warehouse keeper's certificate, wharfinger's certificate, railway receipt, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented ;. . . . . . . . " in view of this provision, we have got to consider whether the Pucca Delivery orders mentioned above come within the clause "any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented. " In Mulla's Indian Sale of Goods Act, Second Edition, the author with reference to certain decisions has observed inter alia as follows: -". . . . . . . . the words 'used in the ordinary course of business' to the end of sub-section are all important, and govern the whole subsection, with the result that all the document mentioned in it must be such as in the ordinary course of business represent the goods. A certificate signed by a Warehouse keeper or Wharfinger which is merely an acknowledgement by him that the goods specified in it are in his possession and nothing more, though it may be described as a Warehouse Keeper's or wharfinger's certificate, is not a document of title and it does not represent the goods. A certificate signed by a Warehouse keeper or Wharfinger which is merely an acknowledgement by him that the goods specified in it are in his possession and nothing more, though it may be described as a Warehouse Keeper's or wharfinger's certificate, is not a document of title and it does not represent the goods. Similarly, a document may amount to an undertaking to deliver goods, but it must be shown to be an undertaking made unconditionally to the holder of the document to deliver them, otherwise it will not be a document of title. " the author, however, with reference to the decision reported in Ant. Jurgens Margarinefrabrieken v. Louis dreyfus and Company, (supra), has stated as follows :-"but a document may be a document of title to the goods even if it refers to unascertained goods. " this decision was placed before us and we shall later on discuss whether the principles stated therein are applicable to the instant, case. 23. NOW in the instant case, we have first of all got to decide as to whether the delivery orders referred to above are documents of title within the meaning of the aforesaid sections. It is quite clear from the original contracts enclosed with the plaint that Messrs. Juggilal Kamlapat contracted to sell to messrs. Partapmull Rameswar specified quantities of 'b' twills and under clause (3) of the terms and conditions it appears that payment was to be made in cash exchange for delivery orders on sellers. In this case several witnesses have been examined and if we refer to the evidence of Rameswar Agarwalla, it will appear that the transfer was made in writing on the back of the delivery order in the plaintiff's favour and that the delivery orders along with the bill are tendered on the due date to the buyer and the buyer on receipt of the delivery orders makes the payment and the seller makes an endorsement on the back of the delivery orders. Such delivery orders according to this witness represent the actual goods. When he was asked in cross-examination whether the delivery orders representing actual goods meant goods in existence, he answered the question in the affirmative but also stated that the goods were not required to be ready before due date but he expected the goods to be ready within the due date. When he was asked in cross-examination whether the delivery orders representing actual goods meant goods in existence, he answered the question in the affirmative but also stated that the goods were not required to be ready before due date but he expected the goods to be ready within the due date. We have already pointed out the condition in the delivery order, to the effect that the Mills were not bound to recognise any transfer. On this matter, he stated that according to the customs of the trade the Mills could not refuse delivery of the goods against delivery orders in spite of such a clause. As regards payment, this witness also stated that the payment was made by the plaintiff on the 21st July 1952, that is, at a time much later than the goods were deliverable in June 1952. The next witness Phillip Raymond supported the statement made by Rameswar agarwalla. He was asked whether the bolder of a delivery order was entitled to any specific goods and in answer he seated that the number of bales mentioned in the delivery orders would be delivered by the Mill. This statement of his does not show that the goods which were required to be delivered were, as a matter of fact, ascertained. The next witness is William Banks cochran. The witness for the plaintiff sorab Bhimshawji Padiwalia, General manager of the Hindusthan Bank, calcutta Branch, has stated that the delivery orders represent the goods, and banks advance money on the security of delivery orders. He has also gone to the length of saying that he had registered the name of an endorsee in the bank in respect of delivery orders of fart Gloster which contained a clause that the company is not bound to recognise any transfer. It is important to note that he made a statement to the effect that the Mills would stop the goods if they had not been paid for it or in other words the Mill would probably refuse to register unless it had received payment. 24. THE next set of witnesses are jagannath Banerjee, Panchanan mukerjee, Krishna Pada Das and Benoy bhusan Bose. Panchanan Mukherjee came from the Gunny Section of Fort Gloster jute Mills. He stated that if there was an underaking given the mill would not refuse registration. 24. THE next set of witnesses are jagannath Banerjee, Panchanan mukerjee, Krishna Pada Das and Benoy bhusan Bose. Panchanan Mukherjee came from the Gunny Section of Fort Gloster jute Mills. He stated that if there was an underaking given the mill would not refuse registration. Krishna Pada das also stated that the person who sought registration would have to give a letter that he would be bound by all obligations of the original buyer. He further stated that though the delivery orders did not contain the words 'or order' yet if there was an endorsement, of the original buyer and the latter transferred to any person the Mill would register his name on his endorsement. We have already pointed out as to what the conditions are regarding transfer of the delivery orders and the oral evidence on record would clearly go to show that a right to delivery of goods arose only on an undertaking given by an endorsee, that is to say, there was no absolute right to obtain delivery of goods on the strength of the delivery orders except on an undertaking which was entirely a new agreement between the Mill and the applicant who sought for registration of his name. The evidence also disclosed that the delivery orders did not represent the goods but evidence was that there was a moral expectation that there would be goods when delivery orders would be presented. This will be borne out from the Exhibits ZZ1 and zz2 and CCC. It is needless to repeat that a right to delivery arose only on an undertaking being given by a holder and such an undertaking was entirely a new agreement between the mill and the applicant who was to apply for registration of his name as a holder of a delivery order. Apart from that oral evidence, it will appear from the standard forms of the Indian Jute mills' Association that the terms and conditions differ from each other. By way of illustration, we may refer to no. 2 13093. It is in Form 'a' and there are 14 clauses. If we compare this form with Exhibit B (7) at page 220 of the Paper Book, Volume II it will appear that on the same date contract no. 2/13094 was entered into and therefrom it appears that there are 15 clauses. It is not necessary to multiply instances. 2 13093. It is in Form 'a' and there are 14 clauses. If we compare this form with Exhibit B (7) at page 220 of the Paper Book, Volume II it will appear that on the same date contract no. 2/13094 was entered into and therefrom it appears that there are 15 clauses. It is not necessary to multiply instances. But this much can be said that there was no uniformity as to the form in which the contracts are engrossed upon. This being the position, it cannot be said that contracts as in the instant case are entered in the standard I. J. M. A. form. Be that as it may, we are not very much concerned with this form inasmuch as (1) the evidence as given in this case warrants the conclusion that no such payment to the Mills was made by the seller, namely, the plaintiff at the time the delivery order was transferred ; (2) the goods were not specified ; and (3)transfers are not recognised by the Mills unless the registration of the name of the endorsee was made in the bills and undertaking was given. Section 18 of the Sale of Goods act provides that where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the gcods are ascertained. This section contemplates that it is essential that the articles should be specific and ascertained in a manner binding on both the parties, for unless that be so, the contract cannot be construed as a contract to pass the property in that article. We have already discussed that in this case the goods sought to be transferred under the contracts were not ascertained. The learned Standing Counsel has argued that what was contracted upon was to sell the delivery order and the plaintiff did not contract to pass title to any specific goods. Therefore, the question whether title to any specific goods passes as a result of the endorsement of the Pucca Delivery Orders does not arise in the present case. The learned Standing Counsel has argued that what was contracted upon was to sell the delivery order and the plaintiff did not contract to pass title to any specific goods. Therefore, the question whether title to any specific goods passes as a result of the endorsement of the Pucca Delivery Orders does not arise in the present case. The contact itself shows that specific goods are contemplated therein and unless the buyer is satisfied that by virtue of the purchase he was at once entitled to the goods as menioned in the contracts, under the law he is not bound to accept the tender as made by the plaintiff. Oral evidence has been adduced to show that in spite of the terms and conditions the tenders of delivery orders by themselves are valid as there is an arrangement that they generally represent the goods. This under the law cannot be done because the document by itself does not authorise the buyer to receive the goods as mere production of the same will not receive recognition from the Mill. Furthermore, delivery order must be such which authorises the buyer to receive the goods. If he protests that, he gets nothing it cannot be in terms of the law treated as a delivery order. Apart from that, as we have found from the evidence that the plaintiff did not pay any money at the time of the tender to the Mill the buyer would be in jeopardy, and might have to make a double payment as he has to give an undertaking in terms of the conditions. A custom which is contrary to these conditions offends against the provisions of section 92 of the indian Evidence Act, as no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or substracting from its terms. 25. NOW, let us advert to the question whether the delivery orders simpliciter can be construed to be documents of title with reference to section 2 (4) of the Sale of Goods Act as stated above. These delivery orders do not come within the category of Bill of lading, Dock Warrant, Warehouse Keeper's certificate, Wharfinger's certificate, railway receipt, etc. 25. NOW, let us advert to the question whether the delivery orders simpliciter can be construed to be documents of title with reference to section 2 (4) of the Sale of Goods Act as stated above. These delivery orders do not come within the category of Bill of lading, Dock Warrant, Warehouse Keeper's certificate, Wharfinger's certificate, railway receipt, etc. We are only concerned to see whether these documents, namely, the Pucca Delivery Orders are treated to be documents used in the ordinary course of business as proof of possession or control of goods. We have discussed the factual aspects of the case before and have shown that in view of the restrictions in the terms and conditions regarding the delivery orders, the buyer cannot be said to be in the ordinary course of business put in possession or control of the goods as they are unascertained and as control over the goods can only be had on registration of the buyer's name on giving his undertaking. Nor do we consider that these documents authorise or purport to authorise by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented, inasmuch as under the provisions of section 18 no title can pass in unascertained goods. In this connection, the definition of the word 'delivery' under section 2 (2) of the Sale of goods Act should not be lost sight of. 'delivery' within the meaning of this clause means voluntary transfer of possession from one person to another. Since the plaintiff seller cannot be said to be in possession of any specific goods, mere delivery of the Pucca Delivery orders cannot in our opinion constitute transfer of possession from one person to the other. 26. THE learned Standing Counsel has urged before us that the parties themselves understood the contract to mean that the delivery order must be of the Mills. Although the contract on the face of it does not provide for actual physical delivery of the goods to be given, it contempltes, according to him, that there is a symbolical delivery of the goods. Although the contract on the face of it does not provide for actual physical delivery of the goods to be given, it contempltes, according to him, that there is a symbolical delivery of the goods. We have already negatived his contention that Pucca Delivery Orders can be documents of title and, as such his argument that the Pucca delivery Orders transferred by endorsement for consideration, constitute constructive delivery of the goods and such, transfer passes on the right to receive the goods to the endorsee need be seriously considered. In this connection he has referred us to the Supreme court decision reported in A. I. R. 1965 s. C. page 1954 : (1965) 2 S. C. A. 187 (Morvi Mercantile Bank Ltd. v. Union of India ). The majority of the Judges of the Supreme Court held inter alia- "that under the Contract Act, delivery of goods by one person to another under a contract as security for payment of a debt is a pledge. Delivery of tangible property is ordinarily essential to a true pledge ; where, however, the law recognises that delivery of tangible symbol involves a transfer of possession of the property symbolised, such a symbolic possession takes the place of physical delivery. Under the Indian law the Railway receipts are equated with the goods covered by them for the purpose of constituting delivery of goods within the meaning of the Contract act. It is clear from a consideration of the relevant provision of section 178, Contract Act, section 137, Transfer of Property Act, and sec. 2 (4), Sale of Goods Act, 1930, that Railway receipts are documents of title and the goods covered by the documents can be pledged by transferring the documents. " In terms of section 2 (4) of the sale of Goods Act a Railway receipt is a document of title issued by the railway Company providing that it is to be given up at the destination of the goods by the consignee in return for the delivery to him of the goods named therein, and if he does not intend to take delivery himself he must endorse on the receipt a request for delivery to the person to whom he wishes it to be delivered. This being the scope of a railway receipt, we may say that a railway receipt can be treated as a document of title in respect of ascertained specific goods as mentioned therein and, therefore, their Lordships of the supreme Court found that, since goods are symbolised in the document, such a symbolical possession takes the place of physical delivery and, therefore, this document can be pledged by transfer. In the instant case, the position is entirely different as discussed above. As we have found that the Pucca Delivery orders are not in respect of specific goods as mentioned therein, the decision aforesaid does not apply to the instant case. 27. THE learned Standing Counsel has also referred to a decision reported in (1) A. I. R. 1955 S. C. 182 (Dunichand rataria v. Bhuwalka Brothers Limited), in support of his contention that the contract in the instant case was not for the sale of specific goods and, therefore, the question whether title to any specific goods passes as a result of the endorsement of the Pucca Delivery orders does not arise. The sellor, according to him, has agreed to hand over the pucca Delivery Orders of European mills and the buyer has agreed to buy the value of the goods in exchange of the Pucca Delivery Orders. The points as raised by him have been sought to be supported by the aforesaid decision. This case arose for the purpose of interpretation of section 2 (1) (b) (i) of the west Bengal Jute Goods Future ordinance, (5 of 1949). Their Lordships interpreted this provision which runs as follows : (1) In this Ordinance unless there is anything repugnant in the subject or context: - (1) "contract relating to Jute goods futures" means a contract relating to the sale or purchase of jute goods made on a forward basis. (a ). . . . . . . . . . (b) by or with any person not being a person who, (i) habitually deals in the sale or purchase of jute goods involving the actual delivery of possession thereof, or. . . . . . . . . . . . According to their Lordships, the word 'involving' in the context means resulting in and this condition will be specified if the chain contracts as entered into in the market result in actual delivery of possession of goods in the ultimate analysis. . . . . . . . . . . . According to their Lordships, the word 'involving' in the context means resulting in and this condition will be specified if the chain contracts as entered into in the market result in actual delivery of possession of goods in the ultimate analysis. The relevant portions of the judgment are quoted below: - "to contrast the words 'actual delivery of possession' with symbolical or constructive delivery and hold that only actual delivery of possession meaning thereby physical or manual delivery, was within the intendment of the ordinance is to place an unwarranted emphasis on those words. The use of the word 'actual' in section 2 (1) (b) (i)of the Ordinance was not indicative of the intention of the Government to include within the score of the exemption only cases of actual delivery of possession as contrasted with symbolical or constructive delivery. To say that it was so indicative is to put a construction which is too narrow. Even if regard be had to the mischief which was sought to be averted by the promulgation of the Ordinance, the government intended to prevent persons who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he was not to be included in the ban. This could be the only intendment of the Ordinance, because otherwise having regard to the ordinary course of business in jute goods would become absolutely impossible. " 28. "if the narrow construction of the expression 'actual delivery of possession' was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the government and the only reasonable interpretation of the expression 'actual delivery of possession' can be that actual delivery as contrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. Such an eventuality could never have been contemplated by the government and the only reasonable interpretation of the expression 'actual delivery of possession' can be that actual delivery as contrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. " "the ordinary course of business in jute goods in West Bengal is by way of what are known as chain contracts. The mate's receipt or delivery orders, as the case may be, represent the goods. The sellers hand over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery of possession of the goods. They in turn passed these documents from hand to hand until they rested with ultimate buyer who takes physical or manual delivery of possession of those goods. The constructive delivery of possession which is obtained by the intermediate parties is thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof. " The above decision was made on the following facts. The appellants entered into three contracts, two dated the 8th August, 1949, and the 3rd dated 17th August 1949 with the respondent bhuwalka Bros, agreeing to purchase 1,80,000 bags of 'b' twills at the price of Rs. 134/4/0 per hundred bags ; 1,80,000 bags at the rate of Rs. 135/4/0 per hundred bags and 90,000 bags at the rate of Rs. 138/0/0 per hundred bags respectively for October. November and December 1949 deliveries in equal monthly instalments on terms and conditions contained in the relative contract forms of the Indian Jute Mills association. In September 1949 the respondent expressed his inability to deliver the goods under the said contracts and requested the appellant to settle the same by selling back the goods under the said contract to the respondent at the price of Rs. 161/8/0 per hundred bags, Ultimatelly the respondent failed and neglected to pay in spite of their repeated demands of the appellant which resulted in filing of the suit against the respondent by the appellant. 161/8/0 per hundred bags, Ultimatelly the respondent failed and neglected to pay in spite of their repeated demands of the appellant which resulted in filing of the suit against the respondent by the appellant. The respondent in the written statement sought for his support on the West Bengal Jute Goods future Ordinance (5 of 1949). The trial Court accepted the contention of the appellant that the delivery orders were dealt with in the market as representing the goods and that they pass from hand to hand by endorsement being received by the successive buyers against cash payments and are used in the ordinary course of the business authorising the endorsee to receive the goods which they represent. On these findings the plaintiff appellant's case was decreed but it was reversed by the appellate court and the Supreme Court in its turn restored the finding of the trial Court after setting aside the decision of the appellate court. Their lordships supported the finding of the trial court which runs as follows : - "not only does the Mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods from its immediate seller and gives actual delivery of possession of jute goods to its immediate buyer. 'prima facie' at the moment of the delivery alongside the steamer there is appropriation and the passing of the property in the goods and the giving and taking of actual delivery of possession thereof all along the chain at the same moment." 29. THIS finding undoubtedly goes to show that as soon as the appropriation of the goods takes place alongside the steamer the chain of transactions which were previously entered into operate as giving delivery of the goods to middleman and nothing more. Furthermore, we have already observed that their Lordships of the Supreme court accepted the finding of the trial judge and interpreted the words given in section 2 (1) (b) (i) of the said ordinance, in order to show what actual delivery of possession means. In the circumstances, it has to be seriously considered whether this decision has any application to the facts of the instant case. In the reported decision no usage was pleaded. In the circumstances, it has to be seriously considered whether this decision has any application to the facts of the instant case. In the reported decision no usage was pleaded. What their lordships were considering was the course of trade and no question of usage and the validity thereof was before that court. The course of the decision hinges upon the question whether protection to the exception in the Ordinance as aforesaid was really available to the appellant. Furthermore, as in the instant case there was no evidence as to what were the actual terms of the contract, nor was there anything before their Lordships as to the terms and conditions which were to be fulfilled by an intermediary buyer at the time when the actual delivery of the goods were sought to be taken form the Mills. In these circumstances, it cannot be said that on the basis of this decision the contention of he learned Standing counsel as stated before can be said to have any support. It is needless to repeat that in the contracts between the parties in the instant case specific goods were sought to be sold and on the evidence as discussed before it is clear that in the Mills the goods were not ascertained and that in order to get the ascertained goods the buyer, namely, the respondent has to enter into certain undertaking and register his name with the Mills, even in cases where clauses for undertaking and registration were absent in the original contract. This being the position, the question is whether the terms of the contract is liable to variation on the bssis of certain oral statements made by certain witnesses examined on behalf of the plaintiff. Proviso (5) of section 92 of the Indian Evidence Act contemplates that oral evidence is admissible to explain or supply the terms in commercial transactions for example, contracts, bills of exchange, insurance policies, etc., on the presumption that the parties did not intend to put into writing the whole agreement but tacitly agreed that their contract was to be interpreted or regulated by established usage and customs provided they are not inconsistent with the terms of the contract. Such evidence is admitted to annex incidents to written instrument. Such evidence is admitted to annex incidents to written instrument. In the premises, evidence of a custom or usage of trade is not admissible to explain the nature and ordinary manner of the words in the contract. Such evidence is only to be received when the incident which is sought to import into the cntract, is consistent with the terms of the written instrument. As such, I am of opinion that if the evidence of usage and custom is inconsistent, such evidence is not receivable. Here, on a clear reading of the terms of the contract, it appears that they are capable of reasonable interpretation, according to the natural meaning of the word 'used', a trade usage altering fundamentally the nature and character of the written contract can neither determ me nor affect the rights and obligations of the parties as it is inconsistent with the written agreement. Furthermore, it may be said that the plaintiff's witnesses, namely, Panchanan mukherjee, Krishna Pada De and Benoy bhusan De, have in clear and unambiguous terms stated that the person who sought registration would have to give a letter that he would be bound by all obligations of the original buyer. Their evidence also prima facie go to show that the party applying for registration would have to give an undertaking that he would be bound by the terms of contract between the Mills and the original buyer and that the Mill could not give delivery of the goods under delivery orders unless his name was so registered. According to the plaintiff's witnesses this is the actual position and the question, therefore, arises whether such terms and conditions as shown in the delivery orders should be given a go-by on the basis of the evidence of rameswar Agarwalla, Phillip Raymond and William Banks Cochran, that a custom exists that the delivery orders pass from person to person by endorsement and treated as good documents of title. Section 62 of the Sale of Goods Act provides that where any right or duty or liability would arise under a contract of sale by implication of law, it might be negatived or varied by express agreement or by the course of dealing between the parties or by usage if the usage is such as to bind both parties to the contract. We have already pointed out that under the provisions of section 18 of this Act, no title to unascertained goods passes and it has also been shown by us that delivery of goods can only be had in respect of ascertained goods. These are the express terms of contract which, in our opinion, cannot be over-ridden by any implication of law mentioned in the said section. 30. THE learned Standing Counsel has laid stress upon the factum of trade usage whereby the contractual obligations have to be construed in terms of the said usage. It has been stated in paragraph 19a, clauses (iii) and (iv)of the plaint that the Pucca Delivery orders irrespective of the forms in which the Mill's Pucca Delivery Orders are couched are good and valid tender under the contract. In support of his contention the Article 340, page 183, halsbury's Laws of England, 3rd edition, Volume II, has been referred to. This article provides that where persons entered into a contractual obligations with one another under circumstances governed by a particular usage, then that usage, when proved, must be considered as part of the agreement. The contract expresses what is peculiar to the bargain between the parties, and the usage supplies the rest. This is the case even where the agreement is unwritten. Although the usage is unwritten, it is to be treated exactly as if that unwritten customary clause and had been written out at length in the contract. He has also referred us to article 362 at page 197 of the said volume and has referred us to the passage which runs as follows :- "a person who directs another to make a contract at a particular place must be taken as having in tended that the contract should be made in accordance with the usage of that place. " A usage according to the Article 367 at page 199 of the said Volume is proved by oral evidence of persons who became cognizant of its existence by reason of their occupation, trade, or profession. " A usage according to the Article 367 at page 199 of the said Volume is proved by oral evidence of persons who became cognizant of its existence by reason of their occupation, trade, or profession. The evidence must be clear and convincing ; it must also be consistent We have already dealt with the evidence of the principal witnesses who were examined on behalf of the plaintiff and have indicated in our judgment that they have not been able to prove a uniform usage or local custom under section 92, proviso (5) of the evidence Act, whereby the expressed written terms of the contract should be treated as nugatory. Moreover, it appears from the evidence adduced that the most important link in the chain is missing, viz., the Mills. Nobody has come forward from the Mills to say that they regard themselves to be bound by the document. Any responsible person from the Mills might have come and said that this was the trade usage or custom and that they were bound to accept the delivery orders in spite of the restrictive terms, as if they were issued in respect of certain ascertained goods. Therefore, the most important thing as to the proof of custom or trade usage appears to be missing in this instant case. It further appears from exhibit CCC and Exhibit DDD that the mills will not register a transferee without getting the assurance as enumerated therein. This will be apparent from the Auckland Jute Mills delivery orders as well. There was no issue raised in this case that the plaintiff was to be deemed to be the seller of the goods mentioned in the delivery orders and, as such, the factum of custom or trade usage as pleaded by the learned Standing Counsel cannot on the face of the evidence be substantiated. Much has been stated by the learned Standing Council that the conduct of the defendant clearly indicates that the delivery orders containing restrictive clauses were valid tenders under the contract as for the April portion of the contract the defendant accepted the Pucca Delivery Orders of belvedere Jute Mills which contained a restrictive clause to the effect tihat the Mill would have a lien for all the charges etc. It might be so in respect of the settled contracts and if the defendant had conceded irrespective of the restrictions to accept the pucca Delivery Orders as they are, that cannot, in our opinion, create an estoppel in favour of the plaintiff because they were transactions relating to a separate contract which had nothing to do with the contracts under discussion at the present moment. I would like to state here that the supreme Court in Dunichand Rataria's case (supra) has not laid down any proposition that the custom as enumerated in para. 19a of the plaint has received any judicial recognition because we have extensively shown before that in the said judgment no question of custom or trade usage was ever mooted. 31. THE learned Standing Counsel has referred to us a Calcutta decision reported in A. I. R. 1935, page 17 (6)Gireesh Chandra Bhattacharyya v. Rabeendranath Das, where it has been held that a custom becomes a law when it receives judicial recognition. Once the Court has decided, as a fact, that a custom does exist then that custom obtains the force of law. As a matter of law in the District of Sylhet, Hindus have the same right of pre-emption under the provisions of Mahomedan law as Mahomedans themselves have in that district and the plaintiff need not prove the existence of such custom by adducing evidence for that purpose. He has also referred us to a Privy council decision reported in A. I. R. 1936 P. C., page 147 (7) Effuah Amissah v. Effuah Krabah in support of his contention. We would at once say that the Calcutta decision mentioned above cannot have any application to the trade usage as averred by the plaintiff-appellant nor do we consider that the Privy council decision has also an apt application to the facts of the instant case. 32. WE have broadly dealt with, the question whether in the instant case the trade custom or usage will outweigh the written text of the contract and now it is necessary for us to refer to another Supreme Court decision reported in A. I. R. 1961 S. C. 1214 : (1961) 2 S. C. A. 227, (3) Jute and gunny Brokers Limited and others v. The union of Indict and others. In this decision one of the questions which arose was whether there was any custom of trade or practice or usage that upon delivery orders being made over to the buyers against payment the property in the goods represented by such delivery orders passes to such buyers. The facts out of which the decision of the Supreme Court ar. ose are as follows :- There was food shortage in the country in September 1956. In order to relieve this shortage, the government of India entered into an agreement with the President of Argentine institute for Promotion of Trade, by which it undetook to freeze, requisition and take over and sell to the Argentine institute and ship to Argentine, 30,000 tons of hessian and in return the institute guaranteed to obtain licences for shipment from Argentine of maize and wheat offals already purchased by the government of India in Argentine. In pursuance and in anticipation of such an agreement, the Government of India addressed letters to the Managing agents of various Jute Mills in Bengal demanding from them information as to the Stocks of Hessian of certain description held by the Mills under their managing Agencies and prohibiting them from selling, transferring, removing, consuming or otherwise disposing of any of the articles. This demand was made under sub-rule (5) of rule 75a of the Defence of India Rules and orders were issued that the specified hessian goods should be delivered to the director of Supplies, Calcutta. Thereafter, acquisition notice was issued and the Government then tried to take possession of the hessian, requisitioned and acquired but the Mills and the holders of delivery orders resisted the government's attempt on the ground that the orders of requisition and acquisition were invalid. Then the Government of India instituted a suit against the jute and Gunny Brokers Limited and others and in. the meantime an ordinance was passed whereby the goods were taken possession of with a condition that the interested persons were to be compensated if the Government of India lost the case. On these facts, it is necessary to outline the relevant decisions, which are necessary for the purpose of the instant case, made by the respective courts. the meantime an ordinance was passed whereby the goods were taken possession of with a condition that the interested persons were to be compensated if the Government of India lost the case. On these facts, it is necessary to outline the relevant decisions, which are necessary for the purpose of the instant case, made by the respective courts. Sarkar, J. as he then was, tried the suit and held on the question of acquisition that as the goods requisitioned and acquired were subject to Pucca Delivery Orders and in view of the usage that Pucca Delivery orders were only issued against payment, passed from hand to hand by endorsement and were sold and dealt with in the market as absolutely representing the goods to which they relate and as the Mills were estopped from challenging that the property in the goods had passed (see Anglo-India Jute mills Company v. Omademull, (supra), the Government which was claiming ownership through the Mills was also subject to estoppel and as the holders of the delivery orders being the owners of the property were not. served with notice on September 30, 1946, under rule 75a (2) of the Rules, the property in the goods therefore did not pass on September 30. 1946. On this view the suit was dismissed. The appeal Court inter alia did not agree with the view of Sarkar, J., that the Government was claiming through the Mills and was, therefore, estopped from challenging the title of the holders of delivery orders. It also held that the property in the goods could not pass by estoppel, in the face of the provision of the Sale of Goods Act, III of 1930, Accordingly, it held that it was not necessary to serve the holders of the delivery orders with notices of acquisition ; but it further held that the Mills which were the owners of goods requisitioned were not served with notice of acquisition, as in its opinion strict compliance with the provisions of the Rules in order 29 the Code of Civil Procedure were necessary in order that the transfer of ownership contemplated under Rule 75a of the Rules may be effected. Further as there was failure to comply strictly with the provisions of Order "29 of the Code of Civil Procedure and as in the view of the appeal court Rule 119 (1-B) of the Rules did not apply to the case, there was no service of notices of acquisition on the owners as required by Rule 75a (2) of the Rules ; therefore it held that the acquisition was not valid. In the result, the appeal was partly allowed as to the effect of the requisition orders but the view of sarkar, J., was upheld as to the effect of notices of acquisition. In the above premises, we are only concerned with the decision of the Supreme Court in so far as it relates to the factum of usage or custom as stated before. In doing so, it is necessary for us to quote in extenso paragraph 14 of the judgment : - "the contention on behalf of the Union of India is that property in the goods cannot pass in law to the holders of the Pucca Delivery orders till the goods are actually appropriated to the particular order therefore, as in this case it is not in dispute that no goods were actually appropriated towards the pucca Delivery Orders concerned, the property in the goods did not pass to the holders thereof but was still in the Mills. Reliance in this connection is placed on Section 18 of the Indian Sale of Goods Act, III of 1930. That section lays down that "where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained," In the present case, as we have already said, it is not in dispute that the goods covered by the Pucca delivery Orders are not ascertained at the time such orders are issued and ascertainment takes place in the shape of appropriation when the goods are actually delivered in compliance therewith. Therefore, till appropriation takes place and goods are actually delivered, they are not ascertained. Therefore, till appropriation takes place and goods are actually delivered, they are not ascertained. The contract, therefore, represented by the Pucca delivery Orders is a contract for the sale of unascertained goods and no property in the goods is transferred to the buyer in view of section 18 of the Indian Sale of Goods Act till the goods are ascertained by appropriation, which in this case, takes at the time only of actual delivery. The appeal court, in our opinion, was therefore right in holding that, the property in the goods included in the Pucca Delivery orders did not pass to the holders thereof in view of section 18 of the sale of Goods Act in spite of the decision in the case of the angloindia Jute Mills Company, I. L. R. 38 Cal. 127. What that case decided was that in a suit between a holder of a Pucca Delivery Order be he the first holder or a subsequent holder who has purchased the Pucca Delivery Order in the market and the Mills, there will be an estoppel and the Mill be estopped from denying that cash had been paid for the goods to which the delivery order related and that they held the goods for the holder of the Pucca Delivery Order. That case therefore merely lays down the rule of estoppel as between the mill and the holder of the Pucca delivery Orders and in a suit between them the Mill will be estopped from denying the title of the holder of Pucca Delivery Orders ; but that does not mean that in law the title passed to the holder of the pucca Delivery Order as soon as it was issued even though it is not disputed that there was no ascertainment of goods at that time and that the ascertainment only takes place when the goods are appropriated to the Pucca Delivery Orders at the time of actual delivery. The appeal court, was in our opinion, right in holding that the effect of the decision in the case of Anglo India Jute Mills Company, I. L. R. 38 cal. The appeal court, was in our opinion, right in holding that the effect of the decision in the case of Anglo India Jute Mills Company, I. L. R. 38 cal. 127 was not that the property in the goods passed by estoppel and that that case only decided that as between the seller and the holder of the Pucca Delivery Order, the seller will not be heard to say there was no title in the holder of the delivery order. That case was not dealing with the question of title at all, as was made clear by jenkins, C. J., but was merely concerned with estoppel. In the present case, the question whether the government of India will be estopped is a matter which we shall consider later; but so far as the question of title is concerned, there can be no doubt in view of section 18 of the Sale of Goods Act that title in this case had not passed to the holders of the Pucca Delivery orders on September 30, 1946, for the goods were not asecertained till then, whatever may be the position of the holders of the Pucca Delivery orders in a suit between them and the Mills to enforce them," 33. THIS part of the decision makes it quite clear that till appropriation takes place and goods are actually delivered, they are not ascertained. The contract represented by the Pucca delivery Orders is a contract for the sale of unascertained goods and no property in the goods is transferred to the buyer in view of section 18 of the Sale of Goods Act till the goods are ascertained by appropriation. In the instant case we have already shown that it has not been estalished tthat the goods are ascertained and that the appropriation of articles under the Pucca Delivery Orders was effected. In the circumstances, as between the contracting parties the pucca Delivery Orders cannot be treated to be documents of title and there being a clear provision in the Sale of goods Act, it cannot be said, as urged, by the learned Standing Counsel, that the contract was only for the sale of the Pucca Delivery Orders. 34. THE learned Standing Counsel has urged before us that as between the contracting parties the defendant must be considered to be estopped, in view of the decision of Anglo-India Jute mill v. Omademull, (supra ). 34. THE learned Standing Counsel has urged before us that as between the contracting parties the defendant must be considered to be estopped, in view of the decision of Anglo-India Jute mill v. Omademull, (supra ). The decision has been interpreted by the supreme Court and we are bound to accept the interpretation made by that court. The question of estoppel should only arise between the holders of the pucca Delivery Orders and the Mill and in such suit the Mill would have been estopped from denying the title of the holder of the Pucca Delivery Orders, as it has been clearly pointed out that this decision does not deal with the question of title but only a question of estoppel in a suit between the Mill and the holder of the Pucca Delivery Order and, as such, we are of the opinion that the plea of estoppel as raised by the learned Standing Counsel cannot have any legs to stand upon. In view of the gamut of facts and circumstances dealt with by us it is not necessary to deal with the other points as raised by the learned counsel of the respective parties. Regard being had to the position in law and the facts as appearing in the instant case, we are inclined to uphold the contention of mr. Deb, the learned counsel appearing for the respondent to the effect that in view of the explicit written contract the defendant-respondent was not bound to accept the tender made to him as acceptance of such a tender would put him to jeopardy to double payment and as there was clear evidence in the record to show that before the tender no payment was made by the plaintiff to the respective Mills. At the next place we also agree with him when he says that the trade usage in this case as sought to be proved cannot override the written agreement which imposed upon both the parties the pre-conditions which required to be fulfilled before the buyer could have seisin of the goods as stipulated in the contract. Thirdly, in our opinion, cogent evidence is lacking in this case to show that in spite of the restrictions imposed, the Mills were bound to accept the delivery orders as they stand. 35. Thirdly, in our opinion, cogent evidence is lacking in this case to show that in spite of the restrictions imposed, the Mills were bound to accept the delivery orders as they stand. 35. BEFORE parting with the matter, it is necessary for us to discuss the case of Ant Jurgens Margarinsfrabrieken v. Louis Drefus and Company, (supra). The learned Standing counsel has relied upon this decision for a proposition that a document may be a document of title of goods even if it refers to unascertained goods. The head-note of this decision runs as follows : -"the delivery order was given by the defendants to F for 2640 bags of Mawra said, which formed part of a consignment of 6400 bags. F gave the defendants a cheque therefor and indorsed the delivery order to the plaintiffs, who took it in good faith and for valuable consideration. F's cheque having been dishonoured, the defendants refused to give delivery of the seed to the plaintiffs; held : (1) that the delivery order was a document of title to the goods which had been transferred by the defendants to F within the meaning of section 10 of the Factor's Act, 1889, and section 47 of the Sale of Goods Act, 1893 and having been transferred by F to the plaintiffs, who took it in good faith and for valuable consideration, the defendants' right of lien as unpaid vendors was defeated and (2) that the delivery order was valid notwithstanding that it related to the goods which were not; specific." On the face of this decision. it seems that it goes in favour of the plaintiff-appellant but I think that it will not be prudent to follow this decision in view of the fact that we were not shown the relevant provision of the english Factors Act, 1889, and English sale of Goods Act, 1893 in order to have our satisfaction that the provisions stated therein are analogous to those contained in our Sale of Goods Act III of 1913. As we have in extenso dealt with the relevant provisions of the Sale of goods Act before, it is needless to repeat the same and it may be said that under the provisions of the latter Act, the plaintiffs cannot be allowed to agitate that even on unascertained goods, the Pucca Delivery Orders should be treated as documents of title and that the question of appropriation was unnecessary. 36. IN the next place, we are required to see whether the plaintiff would have been entitled to damages as claimed if he were successful in the suit. In the plaint, it appears that barring those due under the settlement contract claims of damages have been described, in items Nos. (b), (c) and (d) of the particulars given in the plaint. On an examination of the materials placed before us it appears that the plaintiff claims damages in respect of 'b' twill June instalment under contract No. 2 [12562 dated 22nd November 1952 (30,000 bags at Rs. 205/- per 100 bags), contract No. 2/12619 dated 1st December 1951 (30,000 bags at Rs. 210/4/- per 100 bags), contract No. 2/12655 dated 10th December 1951 (30,000 bags at Rs. 216/- per 100 bags), and contract No. 2/13093 dated 19th April 1952 (91,000 bags at Rs. 151/- per 100 bags ). Damages claimed in respect of all those contracts are difference between the contract rate and the market rate prevailing on 28.6.52.-the rate being Rs. 116/3/- per 100 bags on this date. As regards the hessian contract, there are two items of claims, viz. contract No. 2/12799 dated 10th January, 1952 for May and June 1952 instalments. The contract price was at the rate of Rs. 74/- per 100 yards and market value prevailing on the 31st May 1952 was at the rate of Rs. 46/- per 100 yards and hence the difference of Rs. 28/- per 100 yards on 1,00,000 yards for may amounting to Rs. 28,000/ -. In respect of the June instalment, damages are difference between the contract price being Rs. 74/- per 100 yards and the market rate prevailing on June 28, 1952 at Rs. 47/7/- per 100 yards. Hence the difference of Rs. 26/9/- per 100 yards on 1,00,000 yards amounts to Rs. 26,500/ -. 37. MR. 28,000/ -. In respect of the June instalment, damages are difference between the contract price being Rs. 74/- per 100 yards and the market rate prevailing on June 28, 1952 at Rs. 47/7/- per 100 yards. Hence the difference of Rs. 26/9/- per 100 yards on 1,00,000 yards amounts to Rs. 26,500/ -. 37. MR. Bhabra appearing for the plaintiff-appellant has given us a calculation and it is contended by him that if the plaintiff was entitled to damages he would get a decree for Rs. 1,70,437 /8/-towards the claim of damages. As regards the figures given by him no dispute has been raised on behalf of the defendant-respondent. Now, the question is how far this claim has been substantiated. It will appear that with regard to June delivery damages claimed are the difference between the contract rate and the market rate prevailing on June 28, 1952. There is no dispute as to damages claimed between the contract rate and the market rate prevailing on the 31st May in so far as may delivery was concerned regarding hessian goods. 38. ON behalf of the respondent it has been argued that a minute was recorded at pages 343 to 344 of the 1st volume of the Paper Book to the following effect:- "the parties agree to the following being recorded: -It is agreed between the parties that in the event of the plaintiff succeeding in proving a tender in terms of the contract and a breach of the contract on the part of the defendant, the measure of damages allowable to the plaintiff will be the difference between the contract price as on the basis of the market price prevailing on the 30th June, 1952. In respect of the June protion and on the basis of the market price prevailing on the 31st May, 1952, in respect of May portion. " Mr. Basu appearing for the respondent intervened while Mr. Bhabra was arguing and said that on the face of such an agreement the difference of price as existing on the 28th June cannot be accepted and there being no evidence as to what was the price at the end of 31st May 1952 as agreed upon by the parties the plaintiff's claim for damages should be dismissed. Both 29th and 30th June were holidays. This has been stated by the plaintiff's witnesses rameswar Agarwalla, Dunichand rataria and Purusottamdas Bhiwaniwalla. Both 29th and 30th June were holidays. This has been stated by the plaintiff's witnesses rameswar Agarwalla, Dunichand rataria and Purusottamdas Bhiwaniwalla. On the basis of this evidence it can be said that on the holidays the transactions did not take place and if we refer to the evidence of Bhiwaniwalla it will appear that in the month of June 1952, 28th was the last working day. Furthermore, from the evidence of dunichand Rataria it also appears that there was no trace of transaction on the 29th and 30th June. If these were the holidays it is in all fitness of things desirable that the rate prevailing on the last working day, that is, on the 28th June should be taken into consideration. Apart from the oral evidence it will appear from Rules for the Conduct of business of Gunny Trades Association that "if the due date of any contract tails on a Sunday or on any Holiday under the Negotiable Instruments Act, the due date of the said contract for the purpose of tendering delivery orders will be the working day preceding such holiday". Having considered the oral and documentary evidence it appears to us quite clear that 28th of June being the last working day, preceding the holidays should be treated as a day for transaction for the purpose of ascertaining damages for commodities deliverable by the end of the month of June 1952. It is needles to go into the details on this point as ultimately at the time of the argument by the respondents this was not seriously pressed. In such circumstances, the agreed minutes referred to before does not debar the plaintiff from claiming damages at the rate as prevailing on the 28th June 1952. 39. NOW, turning to the question of actual damages, in the first instance, we shall refer to the evidence of purusottamdas Bhiwaniwalla with regard to hessian goods deliveable on the 31st of may 1952. He proves the rate at Rs. 48/- per 100 bags of the hessian goods. His statement is supported by Exhibits jjj and the bills Exhibit KKK. His evidence has also been supported by dunichand Rataria and Shantilal jamunadas. With regard to hessian in the month of June the witness bhiwaniwalla has also stated that he had two contracts for hessian at the rate of Rs. 48/- per 100 bags of the hessian goods. His statement is supported by Exhibits jjj and the bills Exhibit KKK. His evidence has also been supported by dunichand Rataria and Shantilal jamunadas. With regard to hessian in the month of June the witness bhiwaniwalla has also stated that he had two contracts for hessian at the rate of Rs. 47/7/- and in support of his statement; he has referred to exhibit JJJ2 and jjj3, viz., the entry in the account books produced. The other witness hansraj Dugar has, however, given a lower rate as prevailing on the 28th June. That works up to Rs. 46/15/0. But taking into consideration the other evidence on the record, it appears to us quite clear that with regard to the June delivery the market rate as on the 28th of June 1952, viz., Rs. 47/7/- should be accepted. 40. AS regards 'b' twills purusottamdas Bhiwaniwalla also proves the rate of Rs. 116/8/- per 100 yards as appearing on the 28th June 1952. In support of his contention he has referred to the entry of the account book Exhibit jjj/4. His statement has been corroborated by Shantilal Jamunadas and by Exhibit HHH/2 (Entry dated 28th June 1952 in the Brokerage Register). If we refer to another witness Jagadish gupta, proprietor of Navalkishore banshidhar and Company, it will appear that he stated that he had transaction on July 1, 1952 in respect of 'b' twill at the rate of Rs. 112/- per 100 bags. He has not, however, said that he had any transaction on the 28th June 1952. Similarly the witness Chiranjilal sarogi did not have any transaction on hessian on the 28th June 1952. From their evidence it is quite clear that the rates were reduced in the early part of July 1952 but having considered the statement of witnesses discussed before and the documentary evidence it is quite clear that the rate of Rs. 116/8/0 was the correct market rate as prevailing on the 28th June 1952 and there is no reason why this rate should not be accepted. The evidence of all the witnesses taken together clearly shows that there were transactions in hessian of the size described in contract No. 2/12799. As to the contracts Nos. 2/12562, 2/12619, 2/12655 and 2/13092 'b' twill, ywas 44 X 261/2 and the weight was 21/4 lbs. The evidence of all the witnesses taken together clearly shows that there were transactions in hessian of the size described in contract No. 2/12799. As to the contracts Nos. 2/12562, 2/12619, 2/12655 and 2/13092 'b' twill, ywas 44 X 261/2 and the weight was 21/4 lbs. As to the evidence in regard to B Twills it appears that the rates proved are of the goods similar to those mentioned in the contract. I have broadly indicated the difference in the market rates as prevailing on the 31st May 1952 and 28th June 1952 and on consideration of the arguments advanced on behalf of the plaintiff-appellant it appears quite clear that if the plaintiff succeeded in the suit he would have been entitled to the damages claimed. In so far as this matter is concerned the learned counsel Mr. Deb, appearing for the respondent, did not submit any reply to us and it seems the calculations as made by the plaintiff-appellant were accepted as correct. Mr. Bhabra, on behalf of the plaintiff-appellant, has submitted before us that the rates mentioned in the particulars of the plaint as per item Nos. (b), (c) and (d) should undergo some change after calculation. After reasonable calculation he has given us the figure towards items Nos. (b), (c) and (d) as Rs. 1,70,437/8/0. The learned counsel appearing for the respondent has not challenged this figure as incorrect. Accordingly, we reiterate that if the plaintiff succeeded in this suit the claim as per items Nos. (b), (c) and (d) of the plaint at the above figure should have been allowed to him. 41. MR. Bhabra has argued before us that his client is also entitled to interest at 5 per cent per annum from the date of the suit to the date of the decree on damgaes claimed. In support of this contention he has referred us to several decisions, the most important being reported in 39 Calcutta law Journal, page 77, (8) Pannalal sagore Mull v. Mukhram Radhakissen. It was held inter alia in this decision that the Court has discretion under section 34 of the Code of Civil procedure to award interest on damages from the date of the suit to the date of the decree ; but the Court should state its reasons for so decreeing interest. It was held inter alia in this decision that the Court has discretion under section 34 of the Code of Civil procedure to award interest on damages from the date of the suit to the date of the decree ; but the Court should state its reasons for so decreeing interest. In this case it appears that the trial court allowed interest on damages and the order as to interest was affirmed in appeal. Their Lordships of the Appellate bench observed that it was not disputed that the learned trial Judge had jurisdiction to make the order having regard to the provisions of section 34 of the Code of Civil Procedure. The matter, therefore, was one for the discretion of the learned Judge. 42. IN the instant case, we find that the learned trial Judge did" not make any finding as to whether the plaintiff would be entitled to interest on damages so far as these items are concerned from the date of the institution of the suit till the date of the decree. We also do not consider that having regard to the hugeness of the claim for damages no interest for the aforesaid period should be allowed if the plaintiff was successful. We have already said that the learned trial Judge decreed the suit in part for the sum of Rs. 67275/- with interest on judgment at 6 percent. This relates to item No. (a) of the 'particular' in the plaint. The plaintiff's claim in this regard was on the basis of settlement contract as stated in paragraphs 4, 5, 6 and 7 of the plaint. Against this order a cross-objection was filed, but it was pressed at the time of the hearing of the appeal. 43. IN view of the reasons given by us with regard to delivery orders we are inclined to hold that the plaintiff is not entitled to succeed in this appeal. In the result, the appeal is dismissed with costs. Certified for two Counsel. 44. THE cross-objection is also dismissed but we make no order of costs in this regard.