Sagarmull Agarwala v. Union of India — 1979 DIGILAW 6 (SIK)

Judgement JUDGEMENT :- The main two questions that arise for consideration in this appeal are whether the suit giving rise to this appeal, filed by the plaintiff-appellant against the defendant-respondent, the Union of India, in the Court in Sikkim in 1972, when Sikkim was not incorporated in the Union of India as a component State, was maintainable and if it was maintainable, whether the defendant Union of India committed any breach of contract by refusing to accept delivery of a portion of hay supplied by the plaintiff and was, therefore, liable to pay compensation. 2. The learned District Judge who first tried the suit disposed of the same on the first question only and held that the suit was not maintainable and did not record any finding on the second question or any of the other issues framed by him. After hearing the Counsel for the parties the case was remanded by this Court by its order dated 3rd December, 1977 to the trial Court for recording its findings on the other issues as it was thought that the trial Court having recorded evidence on all the issues ought to have given decision on those issues. The trial Court has thereafter tried the other issues on the evidence on record and has sent its findings on those issues holding that the plaintiff-appellant was not entitled to any relief whatsoever on merits. 3. Having heard Mr. S.N. Bhattacharjee, the learned Advocate for the plaintiff -appellant and Mr. S.R. Sarkar, the learned Advocate-General appearing for the Union of India, I am of opinion that the finding of the trial Court that the suit was not maintainable against the Union of India was wrong and must be reversed but that the finding of the trial Court that the plaintiff was not entitled to any relief on merits was correct and must be affirmed. First, therefore, to the question as to whether the present suit was maintainable against the Union of India having been filed in Sikkim in 1972 when Sikkim was not incorporated as a component State of the Union of India. 4. The suit was instituted in the Court of the Chief Magistrate of Sikkim, which was then the highest Civil Court having original jurisdiction in Sikkim, against the Union of India in 1972 when Sikkim had not become a component State of India. 4. The suit was instituted in the Court of the Chief Magistrate of Sikkim, which was then the highest Civil Court having original jurisdiction in Sikkim, against the Union of India in 1972 when Sikkim had not become a component State of India. The suit was, however, dismissed by the trial Court on 19th November, 1975, after Sikkim has been incorporated a component State in the Union of India by and under the provisions of the constitution (Thirty-sixth Amendment) Act, 1975, commencing to operate with effect from 26th April, 1975. 5. At the time when the suit was filed the relation between Sikkim and India was regulated by the terms of the Indo-Sikkim Treaty of 1950 whereunder Sikkim continued to be a protectorate of India. The learned trial Court came to the conclusion that as on the date of the suit, the defendant Union of India was a foreign state vis-a-vis Sikkim. "it was immune from the jurisdiction of the Sikkim Courts on the date of the filing of the suit'' and held that the suit was gable to be dismissed on that ground. There can be no doubt that in spite of its being a Protectorate, Sikkim, before its incorporation in the Union of India in 1975, was a foreign State vis-a-vis India. A Protectorate, as pointed out in Oppenheim's International Law (Eighth Edition Volume I-page 193), is not considered to be a part or portion of the protecting State. Article 367 (3) of the Constitution of India defines "foreign State" as "any State other than India" and under Article 1 the territories of India mean the territories of the several States and Union. Territories specified in the First Schedule land such other territories as may be acquired. In 1972 when this suit was filed and, for the matter of that, at all times before the Constitution (Thirty-sixth Amendment) Act, 1975, Sikkim was not included within such territories and was, therefore, a foreign State in spite of its being a Protectorate Under the general principles of International Law, both the protectorate and the protecting State enjoy jurisdictional immunities in the Courts of each other (See, Oppenheim's International Law Eighth Edition -Volume 1-page 193). 6. 6. It should, however, be noted that in this case the plea of absolute immunity of a foreign State from being sued was not raised by the 'Union of India in its pleading or at any stage before the hearing of argument and it was only pleaded, as will appear from paragraph 8 of the Written Statement, that the suit was "not maintainable as the same has been instituted against the' defendant, the foreign Government and its officials without the previous permission and consent of the Government of Sikkim". It was one thing to say that the Union of India, being sovereign foreign State, was immune from being and could not be sued in the Courts of Sikkim and another thing to say that in the Sikkim Courts, the Union of India could not be sued without and could be sued only with the permission and the consent of the Government of Sikkim. 7. It should be noted that the doctrine of absolute immunity in favour of foreign States from being sued in the Courts in India has not been accepted in India and under the provisions of Section 86, Civil Procedure Code, 1908, the only immunity that the foreign States enjoy is a limited immunity from being sued without the consent of the Central Government. It has been pointed out by the Supreme Court in Mirza Ali Akbar Kashani v. United Arab Republic (AIR 1966 SC 230 at 236-37), which has in fact reversed the decision of the Calcutta High Court on this point in United Arab Republic v. Mirza Ali Akbar Kashani (AIR 1962 Cal 387), referred to and relied on by the learned District Judge, that notwithstanding the doctrine, of immunity under the International Law, every sovereign State is competent to make its own laws in relation to the rights and liabilities of foreign States to sue and to be sued within its municipal Courts and since Section 86, Civil Procedure Code provides that foreign States can be sued in the municipal Courts of India with the consent of the Central Government a foreign State, when sued in Indian Courts cannot rely on the doctrine of immunity under the International Law, and can only plead that it cannot be sued without the consent of the Central Government under S.86. It appears from para 8 of the Written Statement, quoted hereinbefore, that the defendant Union of India in this case raised only such a plea of its immunity from being sued without the consent of the Government of Sikkim and did not raise any plea of absolute immunity under the International Law. Since such a plea of absolute immunity under the doctrine of International Law was not raised, it is not necessary to consider that question. But I may however, note that even under the aforesaid doctrine of International Law, a foreign State is not bound to and may not raise such a plea of immunity and if no such plea is raised, the foreign State shall be deemed to have waived such immunity and to have voluntarily submitted to the jurisdiction of the Court concerned. It is not that under the aforesaid doctrine of International Law, a suit against foreign State is bad or not maintainable or otherwise inherently defective. Such a suit may become bad and not maintainable only when the plea of such immunity is successfully raised in the suit; but otherwise, such a suit is good, maintainable and perfectly in order from the beginning to the end. Since, as already noted, the defendant Union of India did not plead such a plea of absolute immunity in this case, it is to be deemed to have waived such immunity, assuming that such immunity was available to it. There can be no dispute that such immunity can always be waived (See Oppenheim's International Law-Eighth Edition-Volume I-Pages 264-266; Cheshire's Private International Law 4th Edition-page 97). 8. As already noted, the plea that was raised by the Union of India in Paragraph 8 of the Written Statement was a limited plea based on the provisions of Section 86, Civil Procedure Code, 1908, namely, that it could not be sued in the Courts of Sikkim without the consent of the Government of Sikkim. As I have already pointed out, the provisions in Section 86 of the Civil Procedure Code in Section 86 of the Civil Procedure Code have been made by the Indian Legislature in relation to the liabilities of foreign States to be sued in the Courts of India and are not to be involved by the Union of India when sued in another foreign State. Because, when sued in another foreign State, the liability of the Union of India to be sued will be governed by the laws made by that State in respect of foreign States being sued in that State and if there is no such law made, then by the principles of International Law as adopted and accepted that State and applied by its Courts. 9. The learned Advocate-General appearing for the Union of India has contended that even though the Civil Procedure Code of 1908, is not formally adopted, and made applicable in Sikkim, the provisions of the said Code are all along being followed by the Civil Courts, in Sikkim and have become a law of the land and as such the defendant Union of India was entitled to rely on and invoke the Provisions of Section 86 of the Civil Procedure Code. It is no doubt true that law need not invariably flow from a formal legislative authority. Salmond has defined law "as the body of principles recognised and applied by the State in the administration of justice" and as "rules recognised and acted on by Courts of Justice". I have no doubt that those provisions of the Civil Procedure Code, 1908, which have been consistently followed, applied, recognised and acted upon by the Courts of Sikkim, have become the laws in Sikkim, notwithstanding the dictum that the function of the Courts is not "Jus Dare" but "Jus Dicrere". 10. But were the provisions of S.86 of the Civil Procedure Code ever followed, applied, recognised or acted upon by the Courts in Sikkim ? The learned Advocate-General has frankly conceded that he is not aware of any instance where the provisions of Section 86 of the Civil Procedure Code were applied or acted upon in Sikkim and that he is inclined to think that in all probability there was in the past no occasion for consideration and application of these provisions as neither Union of India nor any other foreign State has probably been ever sued in the Courts in Sikkim. But he has submitted that as everything has and must have a beginning at some point of time, the present suit is one where the Court in Sikkim should feel it proper and advisable to invoke and apply the principles contained in Section 86 of the Civil Procedure Code and there is, in his view, no justification for not applying the provisions of S.86 of the Civil procedure Code, when admittedly and undisputedly the provisions of so many other Sections and Rules of the said Code are being consistently applied by the Courts in Sikkim. 11 . I am, however, of the opinion that the provisions of Section 86 of the Civil Procedure Code could and can never be applied in Sikkim and it would not be possible for me to apply the provisions of that Section even if I wanted to make such a beginning. I am reproducing the relevant provisions of Section 86 (1) and Section 87A of the Civil Procedure Code for facility of discussion :- "88. Suits against foreign Rulers, Ambassadors, and Envoys :- (1) No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government :Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a Ruler from whom he holds or claims to hold the property. 87A. Definitions of "foreign State" and "Ruler". - (1) In this Part, -(a) "foreign State" means any State outside India which has been recognised by the Central Government; and (b) "Ruler", in relation to a foreign State, means the person who is for the time being recognised by the Central Government to be the head of that State. (2) Every Court shall take judicial notice of the fact - (a) that a State has or has not been recognised by the Central Government; (b) that a person has or has not been recognised by the Central Government to be the head of a "State'' (Emphasis supplied). 12. (2) Every Court shall take judicial notice of the fact - (a) that a State has or has not been recognised by the Central Government; (b) that a person has or has not been recognised by the Central Government to be the head of a "State'' (Emphasis supplied). 12. As held by the Supreme Court in the said Mirza Ali Akbar's case (AIR 1966 SC 230), though the expression "ruler of a foreign State" has been used in S.86, the expression covers and the Section applies to all suits against foreign States, whatever be their form of Government, monarchial, republican or otherwise and whether the suit is against the Ruler of a foreign State or against the foreign State itself, Section 86 of the Civil Procedure Code would apply. In fact, under the pro visions of Section 87, a "Ruler" of a foreign State "shall be sued" in the name of the foreign State. 13. Now, Section 86(1) provides that a Ruler of a foreign State or, for the matter of that a foreign State cannot be sued in Indian Courts except with the consent of the Central Government. If the provisions of this Section were applied in substance and in principle in Sikkim it would mean that no foreign State could be sued in the Courts in Sikkim without the consent of the Government of Sikkim. But in Section 87A "foreign State" has been defined as a State which has been recognised as a "foreign State" by the Central Government and "Ruler" has been defined to mean the person recognised by the Central Government as the Head of the foreign State concerned. In order to apply the provisions of Section 86 read with Section 87A of the Civil Procedure Code in Sikkim, the first question that would arise is whether Sikkim, as a Protectorate of India, had ever any right to recognise or grant recognition to any "foreign State" or its "Ruler". Reference in this connection may be made to the Article IV of the Indo-Sikkim Treaty of 1950, which is reproduced hereunder :- "The external relations of Sikkim, whether political, economic or financial, shall be conducted and regulated solely by the Government of India; and the Government of Sikkim shall have no dealing with any foreign power." 14. Reference in this connection may be made to the Article IV of the Indo-Sikkim Treaty of 1950, which is reproduced hereunder :- "The external relations of Sikkim, whether political, economic or financial, shall be conducted and regulated solely by the Government of India; and the Government of Sikkim shall have no dealing with any foreign power." 14. If the foreign relations of Sikkim were to be solely conducted and regulated by the Government of India and Sikkim could have no dealing or relation with any foreign State, it is difficult to understand how the Government of Sikkim could formally recognise or grant recognition to any State as a foreign State in order to make the provisions of Section 86 read with Section 87A of the Civil Procedure Code workable in Sikkim. Section 86 of the Civil Procedure Code applies only in respect of such States as have been recognised as "foreign State" under S.87A and if because of the peculiar position of Sikkim, it could not recognise or grant recognition to any State as "foreign State", then it is obvious that the provisions or the principle of Section 86 of the Civil Procedure Code could never be applied in Sikkim. 15. I have already pointed oat that the defendant Union of India did not in this case plead any absolute immunity under the International Law. But I would like to point out that even if the defendant could claim such immunity from being sued in the Sikkim Courts, the record of this case will unmistakably demonstrate that it has waived such immunity. The defendant entered appearance in this suit, prayed for and obtained several adjournments to file written statements, filed Written Statements, had large number of issues framed, filed large number of documents to be used as evidence in the suit went to the trial and adduced evidence, both oral and documentary and at no stage before the arguments were heard raised the plea of absolute immunity under the International Law. It was only when arguments were being heard on 26th November, 1975, that the plea of absolute immunity under the International Law was raised and argued. It was only when arguments were being heard on 26th November, 1975, that the plea of absolute immunity under the International Law was raised and argued. I have no doubt in my mind that after inviting the Court to exercise its jurisdiction for these long years and at all stages up to the date of hearing of argument, it was no longer permissible for the defendant to claim immunity from being sued at that stage. Even under the aforesaid doctrine of International Law, it is not the position that a foreign State cannot be sued; but the position is that it cannot be sued unless it voluntarily submits to the jurisdiction of the Court. If the course of conduct of the defendant Union of India in this case, as noted above, did not amount to voluntary submission to jurisdiction, then I do not know what else could or can amount to such submission. 16. The matter may be looked into from another point of view. Even under the principles of International Law, a suit against a foreign State cannot be said to be bad and not maintainable ab initio. It is only when a foreign State pleads immunity in a suit that the suit can be held to be not maintainable under the doctrine of the International Law. But, as already noted, a foreign State may very well waive such immunity and submit to the jurisdiction of the Court and the suit in such a case is perfectly maintainable. Therefore, even though the defendant Union of India was a foreign State vis-a-vis Sikkim at the date of the institution of the suit in 1972 and the plea of absolute immunity from being sued under the International Law was available to it, the suit could not be regarded as not maintainable on that date as on that date one could not know as to whether the defendant Union of India would or would not raise the plea of immunity or would waive such immunity and submit to the jurisdiction of the Court. I have already pointed out that before the trial Court, the Union of India in its written statement and in the issues framed never raised the plea of absolute sovereign immunity under the International Law, but only raised the plea of non-compliance with the provisions of Section 86 of the Civil Procedure Code which was recorded as Issue No. 10. As noted before, at the time of argument before the learned trial Judge in November, 1975, this plea was raised by the Union of India for the first time. But by that time, as a result of the operation of the Constitution (Thirty-sixth Amendment) Act, 1975, Sikkim already became incorporated in the Union of India as a component State and the defendant Union of India ceased to be a foreign State vis-a-vis Sikkim and the Courts of Sikkim and, therefore, a suit in the Courts of Sikkim against the Union of India became perfectly maintainable on that date under the provisions of Article 300 of the Constitution of India and no question of any sovereign immunity could any more arise. The present suit was, therefore, maintainable at the date of institution and was also maintainable when the suit was disposed of by the learned trial Judge and that being so, I am of opinion that the suit could not be dismissed simply because during a part of the intervening period such a plea, of sovereign immunity could be raised. 17. My view finds support from a Division Bench decision of the Karnataka High Court in Bhairab Singh Maloji Rao Ghorpade v. Shankar Rao Bindu Rao Padaki (ILR (1976 Kant 1279) : (AIR 1976 Kant 164). In that case a "Ruler" of a former Indian State was sued without the consent of the Central Government as required under Section 86 read with Section 87-A of the Civil Procedure Code. During the pendency of the suit, by virtue of the provisions of the Constitution (Twenty-sixth Amendment) Act, 1971, all such former Rulers were derecognised and were deprived of their special privileges. It was held by the Division Bench that under those circumstances the suit, which was pending on the date of the operation of the said Constitution Amendment Act, should be held to be maintainable and that the plaintiff was entitled to proceed with the same. It was held by the Division Bench that under those circumstances the suit, which was pending on the date of the operation of the said Constitution Amendment Act, should be held to be maintainable and that the plaintiff was entitled to proceed with the same. In this case also during the pendency of the suit the defendant Union of India ceased to be foreign State, vis-a-vis Sikkim as a result of the operation of the Constitution (Thirty-sixth Amendment) Act, 1975, whereunder Sikkim was incorporated in the Union of India as a component State, and therefore, according to the ratio of the Karnataka High Court case, it should be held that the suit was maintainable and that the plaintiff was entitled to proceed with the same. 18. In view of the discussions as noted hereinbefore, I hold that the suit was maintainable and the plaintiff was entitled to proceed therewith and that the learned District Judge was wrong in holding to the contrary. 19. This brings me to the next question which is the only other question involved in this appeal namely, whether the defendant-respondent, the Union of India, committed any breach of contract by refusing to accept and rejecting the portion of the hay supplied by the plaintiff and is, therefore, liable to pay compensation therefor. 20. The contention of the defendant respondent on this question is three-fold. Firstly, it has been contended that the respondent was to purchase and was purchasing hay from the appellant on "local purchase system" whereunder the respondent could purchase any quantity it thought fit and could stop further purchase at any time and was under no obligation to purchase and take delivery of any particular or specified quantity. Secondly, it has been contended that even assuming there was a contract to purchase a certain specified quantity, as the contract was to supply hay according to a particular sample and specification, the respondent rightly rejected a portion of the hay which was not in accordance with such sample and specification. Thirdly it has been contended that assuming that there was a breach of contract on the part of the respondent in refusing to accept delivery of a portion of the hay supplied, the appellant was not still entitled to any compensation as he had not taken any step to mitigate the loss consequent on the breach. 21. Thirdly it has been contended that assuming that there was a breach of contract on the part of the respondent in refusing to accept delivery of a portion of the hay supplied, the appellant was not still entitled to any compensation as he had not taken any step to mitigate the loss consequent on the breach. 21. The case of the respondent as to the transaction between the parties being of a purchase under "local purchase system" was made out in paragraph 14 of the Written Statement as hereunder :- "The fodder required by Military Department is procured by concluding contracts, short term agreements or by local purchase. In case of local purchase no formal agreement is entered into with any particular supplier. Any interested suppliers can offer their goods within the rates previously sanctioned by the Authority keeping in view the local rates and the goods will be purchased if those are found up to specification of ASC (Army Service Corps) and samples approved by Veterinary Officer. Furthermore, purchases under this system can be stopped at any time and no claim of supplier on this account is tenable. If the supplier fails to keep up the quality of his supplies the stock offered by him is rejected and he is supposed to remove the rejected stock which he stacked for effecting the supplies without undue delay. Under the local a purchase system if the suppliers do not come forward to make the supplies at the rates quoted by them previously no penalty is or can be imposed on the suppliers". 22. Under the local a purchase system if the suppliers do not come forward to make the supplies at the rates quoted by them previously no penalty is or can be imposed on the suppliers". 22. The case of the respondent, therefore, was that this being a case of purchase under the system known as "local purchase" - (1) the respondent could continue to purchase hay so long it found the same to be according to its approved sample and specification and that after it found that the hay supplied or part thereof to be otherwise, it could reject the supply or part thereof, as the case may be, which the supplier was bound to take back or remove; (2) even otherwise, it could stop purchase or further purchase at any time and "no claim of the supplier on this account" would be tenable; (3) if the plaintiff supplier also did not come forward to make the supplies or to continue the supplies according to the agreed rate and sample, "no penalty" would or could "be imposed on the supplier". 23. The statement of D.W. 1, Rajeswar Rai, Officer-in-Charge of the Military Farm, was also to that effect and he stated that "the system of purchase was local" and this, in the context of what was stated in the Written Statement, meant that this was a case of purchase under "local purchase system". This witness also stated that there was nothing binding on either side, meaning thereby that neither the respondent was bound to purchase or accept any supply nor the plaintiff was bound to sell or make any supply and that "whatever quantity was accepted by the defendant, its full payment was made". 24. It must be noted that there was absolutely no cross-examination on this point on behalf of the plaintiff-appellant. It must also be noted that the plaintiff appellant, as P.W. 2, also stated that "the agreement had not been prepared in any particular form" and admitted that "this is called as local purchase system" and that he "had not done such business of the local purchase supply of any hay before or after the present contract" and the plaintiff did not in any way" deny the case made out by the respondent as to the peculiarities of a purchase under such system as stated in paragraph 14 of the Written Statement. And along with all these must also be noted the clear admission of this witness, the plaintiff, in his deposition as P.W. 2, that "there was no term regarding compensation in case I fail to supply such hay". All these taken together, in my view go a very long way to show that, as alleged by the respondent, the arrangement between the parties was such, whether called "local purchase system" or not, whereunder there was no obligation on the plaintiff-appellant to supply or sell any specified quantity nor any obligation on the defendant-respondent to take or purchase any particular quantity and that both the purchase and the supply could be discontinued by either party at any time without assigning any reason and without thereby incurring any liability for compensation. That is why the plaintiff could say that he was not and would not have been liable for any compensation even if he did not supply or failed to supply the hay. In that view of the matter, the plaintiff-appellant would not be entitled to an amount as compensation or otherwise for the rejection by the respondent of a portion of the hay supplied by the plaintiff even if the hay was in accordance with the sample and specification. 25. But even assuming that there was a contract between the parties whereunder the respondent was under an obligation to accept the hay if it was in accordance with the sample and specification, can it be said it has been proved on the evidence on record that the hay supplied by the plaintiff-appellant and rejected by the defendant-respondent was in accordance with such sample and specification ? On this point, the findings op the learned District Judge are very much against the plaintiff-appellant and he has found that not only the plaintiff has failed to prove that the hay was according to the sample and specification, but that the evidence on record rather goes to show that the hay was not so and in the words of the learned District Judge, "the plaintiff has not only failed to prove that the hay was rejected by the defendant without justifiable cause, it rather stands established that the defendant was justified in rejecting the hay". 26. 26. it is obvious that in order to substantiate his claim for breach of contract by the respondent, it was for the plaintiff-appellant to prove that the hay supplied by him was in accordance with the sample and the specification and this has not been, as it cannot be, disputed by Mr. Bhattacharjee, the learned Counsel for the appellant. But argued Mr. Bhattacharjee that it was so proved by the evidence of P.W. 1, B.B. Lama; a Forest Ranger, and the certificate, Ext. 28, granted by the Divisional Forest Officer. The case of the appellant is that on his prayer, the Divisional Forest Officer sent Range Officer, P.W. 1, to examine the hay and P.W. 1 examined the rejected hay along with a sample shown to him by the plaintiff and found them to be of the same variety and quality and submitted his report to the Divisional Forest Officer. The document, Ext. 28, purports to be a certificate granted by the Divisional Forest Officer on the basis of the report submitted by P.W. 1 and reads as follows :- "As per report submitted by the Range Officer, Singtam, this is to certify that the grass (Hay) supplied by the contractor Sagarmull Agarwala of Singtam is as per sample previously given to the contractor". 27. The learned District judge has held, and in my view, rightly that in the absence of the report of P.W. 1 on the basis whereof Ext. 28 was prepared, without an explanation for its non-production, the alleged certificate Ext. 28 loses all value. The certificate refers to the quality and the variety of the hay supplied as found on examination and inspection and must, therefore, in order to be of any value, come from one who himself inspected and examined it. Mr. Bhattacharjee, however, argued that even if Ext. 28 cannot be relied on for being granted by someone who had no personal knowledge or for other reason, there is no reason for not relying on the oral evidence of P.W. 1 who himself saw and examined the hay. But I, however, feel that the evidence of P.W. 1, considered in the context of the circumstances surrounding his inspection and report and also the Ext. 28, does not inspire confidence and I further feel that P.W. 1 and the concerned Forest authorities were rather eager to help the plaintiff. 28. But I, however, feel that the evidence of P.W. 1, considered in the context of the circumstances surrounding his inspection and report and also the Ext. 28, does not inspire confidence and I further feel that P.W. 1 and the concerned Forest authorities were rather eager to help the plaintiff. 28. To start with, it is in evidence that the Divisional Forest Officer issued an order in writing asking P.W. 1 to inspect and examine the hay rejected by the respondent. The said written order was, however, not produced which, if produced, could have shown that the inspection and examination by P.W. 1 were made in a regular and official manner. 29. Again, if there was such an official order asking P.W. 1 to inspect and examine the hay, one would very naturally expect an official report from him. P.W. 1 also stated that he submitted such report, a copy whereof was kept in his Range Office at Singtam. The certificate, Ext. 28, also expressly refers to such report. And yet the said report has not been produced and no reason has been advanced for its non-production. The certificate, Ext. 28, also, as admitted by P.W. 1, does not bear any official memo numbers". 30. It is the evidence of P.W. 1 that the plaintiff carried a sample of hay with him and P.W. 1 inspected and examined the hay rejected by the respondent with reference to such sample and found them to be of the same variety and quality. It was not for P W. 1 to know, nor did he say that he knew, that the said sample was the one which the respondent gave to the plaintiff for supplying hay in accordance therewith. But yet the certificate, Ext. 28, categorically declares that "the grass (Hay) supplied by contractor, Sagarmull Agarwal of Singtam is as per sample previously given to the contractor". As already stated, it is not for P.W. 1 or his Divisional Forest Officer or any of the Forest authorities to know and certify whether any, and, if so, which sample was given to the plaintiff by the respondent and such assertion in Ext. 28 really goes to demonstrate unjustified anxiety on the part of the Forest Officers to support the case of the plaintiff. 31. 28 really goes to demonstrate unjustified anxiety on the part of the Forest Officers to support the case of the plaintiff. 31. Then again, it is in evidence of the plaintiff, P.W. 2, that after the sample submitted by him was approved by the Military Authorities, he was asked to supply similar samples, which he did, and that "those samples were thereafter given to him after the seals had been affixed thereon by the Officer-in-Charge". But the evidence of P.W. 1 is that the plaintiff carried with him five or six bundles of hay with which P.W. 1 compared the rejected hay but that "there was no mark on any of those bundles". Therefore, the sample or the samples with which P.W. 1 compared he rejected hay were not those which were approved by the respondent and handed over to the plaintiff with seals affixed thereon for supply in accordance therewith. 32. If then P.W. 1 compared and verified the rejected hay with reference to some samples other than those which were approved and sealed by the Military Authorities, then the least the plaintiff could do was to produce such samples before the Court to enable it to ascertain whether aided by expert's opinion or not, as to whether the samples with reference to which P.W. 1 examined the rejected hay were similar to those of Ext. 1, which were admittedly the samples approved by the Military Authorities. But this was not done and as a result thereof it is not possible to ascertain on the evidence on record as to with what type of samples P.W. 1 compared the rejected hay to find them to be of the same variety and quality. 33. Be that as it may, when, as admitted by the plaintiff himself, some of the approved samples with the seals of the Military Authorities were handed over to and were with the plaintiff, then, giving some other samples, which were not so approved, to P.W. 1 for examination and comparison was very much suspicious and rendered such examination and inspection of no useful value. Mere oral statement of P.W. 1 that "the sample of hay shown to me in Court, Ext. Mere oral statement of P.W. 1 that "the sample of hay shown to me in Court, Ext. I, appears to be similar to that shown to me then by Sagarmull", could not cure the defect particularly when there was no reason as to why the approved samples sealed by the Military Authorities and admittedly in possession of the plaintiff were not given to P.W. 1 and even these samples given to P.W. 1 were not produced in Court. 34. P.W. 1 also stated that "about fifty per cent of the hay of both the heaps was found damaged". The learned Advocate - General has argued that any examination and comparison of the hay rejected by the respondents would be of doubtful utility when fifty per cent thereof was already damaged. This argument surely has force. 35. It should be noted that, as admitted by the plaintiff in his plaint and also in his deposition, the defendant-respondent notified to the plaintiff in writing very early and very soon after the supply that it had rejected the hay supplied as it was not in accordance with the sample and the specification and as the learned District Judge has rightly pointed out, this case of the respondent had been repeated times without number in its large volume of correspondence exhibited in this case. After that, it was only expected that the plaintiff-appellant would take care to bring on record good and reliable pieces of evidence to prove that the rejected hay was in accordance with the specification and sample and was, therefore, wrongly rejected by the respondent. This the plaintiff has failed to do. 36. On a consideration of the evidence on record. I am, therefore, of the view that even assuming that there was an agreement whereunder the defendant-respondent was under an obligation to purchase the hay supplied by the plaintiff appellant if it was in accordance with the sample and specification approved by the respondent, there is nothing on record to show that the hay supplied by the plaintiff and rejected by the respondent was in accordance with such sample and specification and that as such the respondent committed a breach of contract in refusing and rejecting such hay and was, therefore, liable to compensate the plaintiff. 37. 37. I, therefore, hold that the arrangement between the plaintiff-appellant and the defendant-respondent was such that there was no obligation on the part of the former to supply or sell nor any obligation on the part of the latter to accept or purchase any quantity of hay and that the supply or the acceptance thereof could be discontinued by either party at any time without assigning any reason and without incurring any liability for compensation and, therefore, the plaintiff was not entitled to any amount, as compensation or otherwise, for the rejection of the hay supplied by him, even if the hay was in accordance with the approved sample and specification. I further hold that even assuming that there was a contract between the parties whereunder the respondent was under an obligation to accept the supply of hay if it was according to the approved sample and specification, it has not been proved that the hay supplied by the plaintiff-appellant and rejected by the defendant-respondent was in accordance with such sample and specification and that it cannot, therefore, be said that the defendant-respondent committed any breach of contract by refusing to accept such hay. 38. In view of my findings as aforesaid, it is not necessary for me to decide the other point urged by the learned Advocate-General that even assuming that the hay was in accordance with the approved sample and specification and the defendant-respondent was under an obligation to accept the same and was, therefore, guilty of breach of contract in refusing to accept the same, the plaintiff appellant was still not entitled to any compensation as he had not taken any step to mitigate the loss after the hay was rejected. I may, however, note that it has been urged by the learned Advocate-General that the onus was on the plaintiff to prove that after the alleged breach, he took all reasonable steps to mitigate the loss or that, to use the language of the Explanation to Section 73, Contract Act, he did not possess means "of remedying the inconvenience caused by the non -performance of the contract". The learned Advocate-General has referred to the decision of the Supreme Court in Murlidhar Chironjilal v. Harishchandra Dwarakadas (AIR 1962 SC 366) wherein it has been held that under the law the plaintiff must take "all reasonable steps to mitigate the loss consequent on the breach". The learned Advocate-General has referred to the decision of the Supreme Court in Murlidhar Chironjilal v. Harishchandra Dwarakadas (AIR 1962 SC 366) wherein it has been held that under the law the plaintiff must take "all reasonable steps to mitigate the loss consequent on the breach". But neither this decision nor any other Supreme Court decision that I know of nor the provisions of Section 73 of the Contract Act and the Explanation thereto has or have anywhere laid down that the onus is on the plaintiff to show affirmatively that he had no means of remedying the inconvenience caused by the breach or that he took all reasonable steps to mitigate the loss, unless there is evidence to show that he had means to mitigate it. What Section 73 and its Explanation provide is that in assessing the damages naturally arising from the breach of contract, the means available to the plaintiff of remedying the inconvenience or mitigating the loss must be taken into account. If in a given case there is evidence, by whomsoever adduced, to show existence of such means, the question of onus then may lose all relevance or significance and such means must be taken into account in assessing the damages claimed by the plaintiff. But otherwise, the onus must be on the defendant resisting a claim for a breach of contract committed by him to show that means existed and were available to the plaintiff for remedying inconvenience caused by the breach and that the plaintiff did not take any step to mitigate the loss. I am aware of those decisions purporting to lay down that the law casts a burden upon the person complaining of breach of contract to show that he did not possess means of remedying the inconvenience caused by the non-performance of the contract or that he took steps to mitigate the loss consequent on such non-performance and reference may be made to the decisions of the Allahabad High Court in Prabhu Lal Upadhya v. District Board, Agra, (AIR 1938 All 276), of the Oudh Chief Court in Aliya Begum v. Mohini Bibi (AIR 1943 Oudh 17), of the Madhya Pradesh High Court in Pannalal Jugatmal v. State of Madhya Pradesh (AIR 1963 Madh Pra 242). There are decisions to the contrary also and for that reference may be made to the decisions of the Madras High Court in Sundaram Chettiar v. Chokalingam Chettiar, (AIR 1938 Mad 672), of the Calcutta High Court in Prafulla Ranjan Sarkar v. Hindustan Building Society (AIR 1960 Cal 214) and also the decision of the Bombay High Court in K.G. Hira Nandani v. Bharat Barrel and Drum Mfg. Co. (AIR 1969 Bom 373). In that Bombay case Vimadalal, J., sitting singly, has referred to and considered the abovenoted and other earlier decisions and after relying on Mayne, Chitty and Halsbury, has agreed with the Madras and the Calcutta view and has held that the onus is on the defendant to show that the plaintiff ought to have taken certain mitigating steps. Cheshire and Fifoot in their Law of Contract have also observed (page 593, Eighth Edition) that "Whether the plaintiff has failed to take a reasonable opportunity of mitigation is a question of fact dependant upon the particular circumstances of each case and the burden of proving such failure rests upon the defendant." 39. If it was necessary for me to decide this question, I would have respectfully agreed with the Madras, the Calcutta and the Bombay view as aforesaid and would have, with equal respect, dissented from the contrary view. For it would have been difficult for me to agree to saddle an innocent plaintiff, proving and suffering from a breach of contract with the further onus to prove that it took steps to mitigate the loss or had no means to do so and thus relieve the defendant, who is to be blamed for the breach, of such onus. The learned Advocate-General has argued that the question of onus was not material in this case as the plaintiff himself admitted that after the hay was rejected he "did not get that hay removed" and "it lay there". This statement by itself might show that the plaintiff did not take any step to mitigate the loss but might not show that he could take any such step and had means to remedy the inconvenience. Be that as it may, I need not pursue this aspect any further because, as already noted it is not necessary for me to do so in view of my findings on the other points as recorded hereinbefore. 40. Be that as it may, I need not pursue this aspect any further because, as already noted it is not necessary for me to do so in view of my findings on the other points as recorded hereinbefore. 40. In the result, the appeal shall fail. The finding of the learned District Judge that the suit was not maintainable is, however, reversed but the finding that the plaintiff was not entitled to any relief is affirmed. The appeal, therefore, fails and is dismissed. In the circumstances of the case the parties are left to bear their own cost.