This is an appeal filed by the defendant in Money Suit No. 24 of 1957 on the file of the Subordinate Judge, Tri­pura at Agartala, against the judgment and decree for Rs. 12,939/-, with proportionate costs, towards the cost of 706 maunds and 23 seers of food-grains, said to have been stored in the godown of late Kumud Ban-dhu Saha (father of the appellants 1 and 2 and husband of the 3rd appellant) and re­mained undelivered to the respondent Union Territory of Tripura. The decretal amount was made payable by the appellants out of the assets of lat« Kumud Bandhu Saha in their hands. S. The case of the respondent in the plaint is that in 1949 late Kumud Bandhu Saha was appointed by the Director of Pro­curement, Government of Tripura, as a storing agent for storage of Government food-grains in his godown in Agartala, Tri­pura, that according to the terms of his ap­pointment as storing agent he was bound to make suitable arrangements for storing the food-grains sent to him for storage by per­sons authorised by the Government and by officers of the Directorate of Procurement, Government of Tripura and that he should deliver the same to any person holding a written delivery order of the Director of Procurement or any other person authorised by him to issue delivery orders. He was also bound to maintain a godown stock book and was entitled to receive commission at the rate of -/3/- annas for every maund of food-grains cleared out of his godown. When the food-grains were carried to his godown in any Government vehicle (with­in Agartala town) the driver of the vehicle carried with him a log sheet, which con­tained the particulars of the food-grains issued by the consignor. Whenever food-grains from outside the town of Agartala were despatched to the godown, a despatch invoice was issued by the Government offi­cer who despatched the same mentioning the particulars of the food-grains. Thus, from 11-11-1950 to 27-2-1951 late Kumud Bandhu Saha, the storing agent received 5307 maunds and 6 seers of Government rice contained in 2664 gunny bags. But, he delivered 4600 maunds and 23 seers of rice and 2330 gunny bags in pursuance of the orders of the Directorate of the Procure­ment. The balance of 706 maunds and 23 seers of rice and 334 gunny bags remain­ed undelivered. But, he delivered 4600 maunds and 23 seers of rice and 2330 gunny bags in pursuance of the orders of the Directorate of the Procure­ment. The balance of 706 maunds and 23 seers of rice and 334 gunny bags remain­ed undelivered. The storing agency of late Kumud Bandhu Saha continued until his death in the first week of July, 1954. 3. The respondent filed Criminal Case No. 2 of 1953 against Kumud Bandhu Saha and the appellants 1 and 2. But, it was dismissed on 20-12-1955. So, the respon­dent filed the suit on 3-6-1957 for recovery of Rs. 14,598 towards the cost of the undelivered 706 maunds and 23 "seers of rice and 334 gunny bags. 4. The appellants denied in their written statement the existence of any contract be­tween the respondent and late Kumud Bandhu Saha binding him as a storing agent under the respondent. They pleaded that late Kumud Bandhu Saha delivered away to the respondent the entire stock which was kept with him from 11-11-1950 to 27-2-1951. They further alleged that, when the respondent issued a registered notice dated 27-2-1952 to late Kumud Bandhu Saha to deliver the rice remaining in his godown to the Inspector, Central godowns, before 15-3- 1952, late Kumud Bandhu Saha intimated the respondent, on 1-3-1952 and 30-3-1952, that P. W. 2 (Shri Dhiresh Chandra Ghosh, Central Inspector) had taken delivery of the rice and bags remaining in the godown and that he took away the account books also with him. It is the further case of the appellants that they complained to the Chief Com­missioner that P. W. 2 Shri Dhiresh Chandra Ghosh, the Central Inspector did not return the account books, that the Chief Commis­sioner directed the police to search the house of P. W. 2 (Shri Dhiresh Chandra Ghosh) that D. W. 2 (Shri Anath Bandhu Choudhury) the then Circle Inspector of Police seized all the account books of Kumud Bandhu Saha from the house of P. W. 2 (Shri Dhiresh Chandra Ghosh), but that he did not return them to the appellants and sent them to the S. D. M's Court. The appellants also averred that as the respondent did not file any account of rice and bags stored in the godown of late Kumud Bandhu Saha, the appellants were prejudiced in their defence and that the suit is liable to b« dis­missed. 5. The appellants also averred that as the respondent did not file any account of rice and bags stored in the godown of late Kumud Bandhu Saha, the appellants were prejudiced in their defence and that the suit is liable to b« dis­missed. 5. On the above contentions the learned Subordinate Judge framed seven issues and held that late Kumud Bandhu Saha was appointed as storing agent by the Procurement Department of the respondent, as pleaded in the plaint, that he failed to deliver 706 maunds and 23 seers of food-grains, that the respondent is entitled to their cost of Rs. 12,939 at the rate of Rs. 18/5 annas per maund and that the suit is maintainable. Accordingly, he decreed the suit for Rs. 12,939 and proportionate costs payable by the appellants from out of the assets of late Kumud Bandhu Saha in their hands. 6. The points, which were argued and which arise for determination, are: (i) Whether the suit is not maintainable under Article 299 (1) of the Constitution of India corresponding to Section 175 (3) of the Government of India Act of 1935? (ii) Whether the respondent is entitled to the amount of Rs. 12,939 towards the price of 706 maunds and 23 seers food-grains as decreed by the lower Court? (iii) To what relief are the parties en­titled? 7. Point (i): In this case there is »o written contract of agency of late Kumud Bandhu Saha under the respondent. Ext. P-3 was filed to show that the same terms of agency which applied to the storing agents mentioned therein also applied to him. The contention of the learned Counsel for the appellants is that under Article 299 (1) of the Constitution of India (corresponding to Section 175 (3) of the Government of India Act of 1935) three conditions must be satis­fied before a binding contract against the Government can arise, that they are, firstly, the contract must be expressed to be made between the President or the Governor or the Raj Pramukh of the State as the case may be, that, secondly, it must be in writ­ing and that, thirdly, the execution should be by such person and in such manner as th« President or Governor or the Raj Pramukh may direct, that in the present case there is no written contract and that, therefore, the suit is not maintainable. He relied on K. P. Choudhury v. State of Madhya Pra­desh, AIR 1967 SC 203 in which the pre­vious cases on this subject were also re­viewed. This objection was not taken by the learn­ed Counsel for the appellants in the course of his arguments at first. But, after the respondent's Counsel argued, the appellant's Counsel raised this point in his reply. It may be mentioned at this stage that no such objection was taken by the appellants in their written statement. So this ques­tion, which was raised for the first time by the appellants' Counsel in his reply argu­ments in the appeal, cannot be countenanced. There is a direct ruling of the Supreme Court in Kalyanpur Lime Works Ltd. v. State of Bihar, AIR 1954 SC 165 on this point. It was held that the provisions con­tained in Order 6, Rule 8 and Order 8 Rule 2, Civil P. C. leave no doubt that the party denying merely the factum of the con­tract and not alleging its unenforceabih'ty in law must be held bound by the pleadings and be precluded from raising the legality or validity of the contract in the course of his arguments in the High Court. Vide also State of Bihar v. Charanjitlal Chadha, AIR 1960 Pat 139 . So, the appellants' Counsel, who did not rightly put forward any con­tention about the legality of the oral con­tract cannot be heard to raise it even in his reply arguments. 8. However, under Sections 65 and 70 of the Indian Contract Act of 1872 the appellants would be bound to compensate the respondent, if really they had derived any benefit under the contract, even if it is dis­covered to be void. Vide N. Purkayastha v. Union of India, AIR 1955 Assam 33 and State of West Bengal v. M/s. B. K. Mondal and Sons, AIR 1962 SC 779 . The latter decision was referred to with approval by the Supreme Court in the latest decision of AIR 1967 SC 203 . So, if it is found that the appellants really derived benefit out of the transaction, then they are bound to compensate the respondent, even though the contract is discovered to be illegal and void. I find point (i) against the appellants. 9. So, if it is found that the appellants really derived benefit out of the transaction, then they are bound to compensate the respondent, even though the contract is discovered to be illegal and void. I find point (i) against the appellants. 9. Point (ii): A close study of the plaint shows that the respondent alleged that there were a number of transactions from 11-11-1950 to 27-2-1951, under which a total quantity of 5307 maunds and 6 seers of Government rice contained in 2664 gunny bags was stored in the godown of late Kumud Bandhu Saha on various dates, that he delivered back 4600 maunds and 23 seers of rice and 2330 gunny bags off and on and that the balance of 706 maunds and 23 seers of rice and 334 gunny bags remained in his godown undelivered. So, this is a suit filed on the basis of an account for re­covery of the price of the balance of un­delivered rice and gunny bags. Under sub-rule (1) of Order 7, Rule 14, Civil P. C. the respondent should have pro­duced into the Court along with the plaint the documents in the possession of the department concerned and should have deli­vered a copy of the account to be filed with the plaint. Under sub-rule (2), it should have entered such other documents, on which it relied, whether they were in its possession or not, as evidence in support of its claim in a list annexed to the plaint. Order 7, Rule 18, Civil P. C. bars the res­pondent from subsequently filing the docu­ments, which it should have filed under Order 7, Rule 14 (1), Civil P. C., to be ad­mitted in evidence. But, with the leave of the Court, they may be received in evidence. A perusal of the plaint shows that no ac­count was produced into the Court along with the plaint and that no copy of the account was filed with the plaint. Nor does the plaint contain any schedule mentioning the documents relied on by the respondent. So, this is a lacuna in the case of the res­pondent. A perusal of the plaint shows that no ac­count was produced into the Court along with the plaint and that no copy of the account was filed with the plaint. Nor does the plaint contain any schedule mentioning the documents relied on by the respondent. So, this is a lacuna in the case of the res­pondent. The learned Subordinate Judge refers to this aspect of the case in his judg­ment in his discussion under Issue No. 1 and states that he was not shown any law which lays down that the accounts relating to the suit must be produced along with the plaint, when it was filed into the Court. Evidently, he lost sight of the provisions of Rules 14 and 18 of Order 7, Civil P. C. 10. No mention was made in the plaint as to what happened to the accounts of the respondent and how the respondent arrived at the various detailed figures of consign­ment of rice and gunny bags to the godown of the storing agent late Kumud Bandhu Saha and the delivery by him of the same under the orders of the officers of the Pro­curement Department. But, evidence was let in to show that the account books were filed in G. R. No. 2 of 1953 on the file of the first class Magistrate's Court in Agartala, that they were damaged in the floods and that, therefore, the respondent was obliged to lead secondary evidence. Exhibit P-4 is a letter dated 3-4-1957 addressed by the District Magistrate, Tripura, to the first class Magistrate to return the records to his office as the suit had to be filed. Exhibit P-4 (a) is a reply dated 17-5-1957 sent by the Magistrate to the District Magistrate stating that the case was disposed of on 20-12-1955 and that the records were totally damaged on account of floods. So, the department concerned waited from 20-12-1955 upto 3-4-1957 without taking any action for taking back the records from the Magistrate's Court. The respondent did not mention in the plaint that the account books etc., were damaged by floods. 11. It remains, therefore, to be see a whether the secondary evidence, let him by the respondent to prove the liability of the storing agent and consequently of the ap­pellants, is reliable or not. The respondent examined the following three witnesses P. Ws. The respondent did not mention in the plaint that the account books etc., were damaged by floods. 11. It remains, therefore, to be see a whether the secondary evidence, let him by the respondent to prove the liability of the storing agent and consequently of the ap­pellants, is reliable or not. The respondent examined the following three witnesses P. Ws. 1 to 3 (Sri Satya Das Chakraborty, Shri Dhiresh Chandra Ghosh and Shri Jnaa Chandra Saha): (After discussing the evidence His Lord­ship proceeded): 12-13. The contention of the learned Counsel for the appellants is that P. W. 2 (Shri Dhiresh Chandra Ghosh) looked into a certified copy of the deposition in the crimi­nal Court and gave evidence in the suit, that though he was entitled to refresh his memory under Section 159 or Section 160 of the Indian Evidence Act, he did not do so, but that he simply reproduced the evidence by reading it and that the proce­dure adopted was illegal. He relied on Mohansingh Laxmansingh v. Bhanwarlal Rajmal, AIR 1964 Madh Pra 137, where it was held that though under Section 159 of the Indian Evidence Act a witness may re­fresh his memory by looking into a docu­ment and give evidence in the ordinary way, the document is not by itself evidence and that the document can acquire some evi­dentiary value under Section 160 of the Indian Evidence Act, subject to the condi­tions mentioned therein. But, in the pre­sent case P. W. 2 (Shri Dhiresh Chandra Ghosh) appears to have refreshed his memory by looking into a certified copy. He also spoke to the various details of dates etc. by looking into it. Such a procedure is not hit by Section 159 of the Indian Evidence Act. Vide Bhika v. Emperor, AIR 1924 Lah 605. 14. There are, however, the following circumstances which go to show that no re­liance can be placed upon the various en­tries spoken to by P. W. 2 (Shri Dhiresh Chandra Ghosh) or found in Ext. P-5 which are relied on by the respondent as secondary evidence:- (After discussing the circumstances, His Lordship proceeded further): So, no reliance can be placed on the evi­dence of P. W. 2 (Shri Dhiresh Chandra Ghosh) given in the Criminal Court with reference to the alleged stock register, which was not maintained properly in the regular course of business. P-5 which are relied on by the respondent as secondary evidence:- (After discussing the circumstances, His Lordship proceeded further): So, no reliance can be placed on the evi­dence of P. W. 2 (Shri Dhiresh Chandra Ghosh) given in the Criminal Court with reference to the alleged stock register, which was not maintained properly in the regular course of business. Vide also Hira Meher v. Birbal Prasad Agarwala, AIR 1958 Orissa 4, wherein it was held that an account book, not regularly maintained, is not relevant evi­dence under Section 34 of the Indian Evi­dence Act. (iii) With regard to Ext. P-5 there is an amount of suspicion about its genuineness. P. W. 3 (Shri Jnan Chandra Saha) stated that he prepared it in the course of the pendency of the Criminal Case. But, he admitted in his cross-examination that ha did not mention the date on which he pre--pared it. There is no seal of the depart­ment on it. There is no certificate of any­body on it to the effect that it is a correct one that it was compared with the original and found correct. It does not mention the numbers of the pages of the stock book, from which the entries were said to have been copied. It was not shown what was the necessity at that time for the preparation of Ext. P-5. So, it must have been pre­pared for the purpose of the suit and it carries no weight at all. The learned Coun­sel for the appellants stated that it is a copy of a copy and that it is not admissible in evidence. He relied on Smt. Krishna Subala Bose v. Dhanapati Dutta, AIR 1957 Cal 59 . But, in case it is a genuine copy of the original, it can be looked into as secondary evidence under sections 63 and 65 of the Evidence Act. Vide Commissioner of Wakfs, West Bengal v. Kazim Ali Murza, 58 Cal WN 533. But, no reliance can be placed on it as it cannot be said to be a true copy of the original register. 15. Thus, there is no legal proof that the storing agent failed to deliver 706 maunds and 23 seers of food-grains as found by the lower Court. 16. But, no reliance can be placed on it as it cannot be said to be a true copy of the original register. 15. Thus, there is no legal proof that the storing agent failed to deliver 706 maunds and 23 seers of food-grains as found by the lower Court. 16. The learned Counsel for the respon­dent, however, strongly urged that the stor­ing agent late Kumud Bandhu Saha was bound to maintain godown stock register ac­cording to the terms of agency, that the ap­pellants did not produce it into the Court and that adverse inference should be drawn under Section 114, Illustration (g) of the Indian Evidence Act. The defence of the ap­pellants is that the respondent issued a notice dated 27-2-1952 to Kumud Bandhu Saha demanding him to deliver the undeli­vered stock to P. W. 2 (Shri Dhiresh Chandra Ghosh) by 15-3-1952, but that he had already delivered the same and inform­ed the respondent by his letters dated 1-3-1952 and 30-3-1952, that P. W. 2 (Shri Dhiresh Chandra Ghosh) took delivery of all the rice and bags, that Kumud Bandhu Saha lodged a complaint with the Chief Commissioner, that P. W. 2 (Shri Dhiresh Chandra Ghosh) took away all his account books and that at the instance of the Chief Commissioner the house of P. W. 2 (Shri Dhiresh Chandra Ghosh) was searched by D. W. 2 (Shri Anath Bandhu Choudhury) the then Circle Inspector of Police, that the books were seized from the house of P. W. 2 (Shri Dhiresh Chandra Ghosh) and that they were not given to the appellants but that they were sent to the S. D. M's Court. The First Appellant Aswini Saha deposed as D. W. 1 that he was not present when the seizure took place, but that his brother was present. The latter was not examined. The appellants, however, examined D. W. 2 (Shri Anath Bandhu Choudhury) who was the Circle Inspector of Police in Agartala in 1951 A. D. He deposed that under the orders of the Chief Commissioner on the basis of a complaint lodged by Kumud Bandhu Saha, he seized the purchase register, the stock register and other account oooks from the house of P. W. 2 (Shri Dhiresh Chandra Ghosh) and sent them to the Court. In the cross-examination, he stated that he seized the stock register or stock ledger and that the name of Kumud Bandhu Saha or some form was written on the account books in Bengali language. He further stated that the S. I. seized the books in his presence and that it happened in 1950 or 1951. The Subordinate Judge held that the books were seized in 1950 or 1951, but that according to the plea of the appellants in paras 10 and 11 of their written statements the entire stock was delivered by Kumud Bandhu Saha in 1952 and that therefore the books, which were seized, did not relate to the period be­tween 11-11-1950 and 1-5-1951. This reasoning is incorrect. For the appellants did not state in paras 10 and 11 of their written statement that late Kumud Bandhu Saha delivered the goods in 1952 to P. W. 2. D. W. 2 (Shri Anath Bandhu Choudhury) deposed that he worked as Circle Inspector of Police in 1951 and that the S. I. seized the books in his presence. So, the seizure could not take place in 1950 when D. W. 2 (Shri Anath Bandhu Choudhury) was not the Circle Inspector of Police. It must have taken place in 1951 or thereafter. The sei­zure was admitted by P. W. 2 (Shri Dhiresh Chandra Ghosh) even in the Chief examina­tion. He deposed that he took the "dag patty" book from Kumud Bandhu Saha to his house to compare it with the stock book, but that Kumud Bandhu Saha filed a peti­tion with untrue allegations, that the Circle Inspector of Police seized the said "dag patty" book, that it was filed in the crimi­nal case and that it was destroyed. In the Chief examination P. W. 2 (Shri Dhiresh Chandra Ghosh) denied having seized the stock register of Kumud Bandhu Saha. But in the cross-examination, he admitted that a stock register was seized from his house. According to him, that stock register was of the Procurement department. But; the evidence of D. W. 2 (Shri Anath Bandhu Chou-dhury) shows that he seized the account books of Kumud Bandhu Saha. It, therefore, follows that the evidence of P. W. 2 (Shri Dhiresh Chandra Ghosh) that the stock register was of the Procurement department is not true. According to him, that stock register was of the Procurement department. But; the evidence of D. W. 2 (Shri Anath Bandhu Chou-dhury) shows that he seized the account books of Kumud Bandhu Saha. It, therefore, follows that the evidence of P. W. 2 (Shri Dhiresh Chandra Ghosh) that the stock register was of the Procurement department is not true. He admitted that he was transferred from the Procurement department in February, 1952 and that he was also kept under sus­pension. But according to him he got pro­motion after he was released from suspen­sion. The evidence of D. W. 2 (Shri Anath Bandhu Choudhury) and P. W. 2 (Shri Dhiresh Chandra Ghosh) leaves no doubt that all the account books including the stock book of Kumud Bandhu Saha were seized from the house of P. W. 2 (Shri Dhiresh Chandra Ghosh) and sent away to the S. D. M's Court. 17. As can be seen from the notes paper maintained by the lower Court (vide Order 42 dated 5-2-1960) the appellants filed two peti­tions one to send for the account books from the Court of the S. D. M. and another to examine the second appellant. The Sub­ordinate Judge dismissed the petitions on the ground that they were filed late and that the suit was posted for arguments. Thus, they were not sent for. Under these circumstances, no adverse inference can be drawn against the appellants that they sup­pressed the account books. 18. The learned Counsel for the respondent, however, urged, firstly, that under sec­tion 213 of the Indian Contract Act an agent is bound to render a proper account to his principal on demand and also relied ob H. Brii Kishore Singh v. Smt. Nazuk Bai, 51 Cal WN 157 where the liability of the legal representatives of a person, standing in fiduciary relationship with another person to render accounts to that person, was laid down. It was held that the legal represen­tatives of an agent are also liable to render an account, but that such liability of the legal representatives does not involve the duty to explain the accounts kept by the deceased but that it includes the liability to deliver the account papers and support them by vouchers. It was held that the legal represen­tatives of an agent are also liable to render an account, but that such liability of the legal representatives does not involve the duty to explain the accounts kept by the deceased but that it includes the liability to deliver the account papers and support them by vouchers. The second contention of the respondent's learned Advocate is that late Kumud Bandhu Saha was a bailee as defined by Section 148 of the Indian Contract Act, that he was bound to take proper care of the goods as laid down by Section 151 of the said Act and also bound to return the same under Sec­tion 160 of the said Act and that the bur­den of proof lay on the appellants to show that Kumud Bandhu Saha took care of the goods as a man of ordinary prudence and what he did with them. He relied on Visa-lakshi Ammal v. Cofmbatore Janopakara Nidhi Ltd., AIR 1942 Mad 299 where it was held that entrustment of goods with a person for safe custody is also a species of bailment. In Samara] v. Kuppuswami, AIR 1957 Mys 55 it was held mat in case of loss of goods by a bailee, the burden of proof lies on him to prove the loss. These two contentions are misconceived. In the present case the plaint was filed on a defi­nite averment that late Kumud Bandhu Saha did not deliver 706 maunds and 23 seers of rice and 334 pieces of gunny bags and the respondent claimed a specific amount to­wards their value. So, the burden lies, at the outset, on the respondent to prove its case. The burden shifts to the appellants after the respondent discharges the onus, that lies on it. No doubt, where evidence has been let in by both the parties, then it is a question of appreciation of evidence. But, this is not a suit for accounts filed by the respondent calling upon the appellants to render an account of the agency. So, the above contentions of the learned Counsel for the respondent have no bearing on the case, as set out and pleaded by the lespon-dent in the plaint. I find point (ii) in the negative. 19. Point (iii): The judgment and decree of the lower Court cannot be sustained and are accordingly set aside. The appeal is allowed and the suit is dismissed. I find point (ii) in the negative. 19. Point (iii): The judgment and decree of the lower Court cannot be sustained and are accordingly set aside. The appeal is allowed and the suit is dismissed. But, under the circumstances of the case, I direct the parties to bear their respective costs in both the Courts. Appeal allowed.