JUDGMENT K.S. Paripoornan, J. 1. The defendant in O. S. No. 193 of 1977 of the Munsiff's Court, Kasargod is the appellant herein. The plaintiff in the suit is the respondent. A hire purchase agreement was entered into between the plaintiff and the defendant evidenced by Ext. A1 dated 29-12-1970. The plaintiff took on hire an oil driven pump set for lift irrigation purposes in his agricultural properties. According to the plaintiff the defendant failed to supply all the accessories, it had agreed to supply and committed breach of the hire purchase agreement. Alleging that the plaintiff did not conform to the terms of Ext. A1, hire purchase agreement, and committed a breach of the agreement the defendant seized and sold the pump set. Thereafter, the defendant started to recover sums alleged to be from the plaintiff through its authorised officers, by way of Revenue Recovery proceedings. The defendant has claimed a sum of Rs. 1,384.54. According to the plaintiff, Rs. 478.95 represents interest, Rs. 711/- represents penal interest and default fee and Rs. 133.93 is towards seizure charge. The plaintiff avers that the plaintiff is not liable for the default fee, penal interest and seizure charges. The claims are opposed to the provisions of the Indian Contract Act and are illegal So the suit was laid for a declaration that no amount was due to the defendant from the plaintiff under hire purchase agreement, Ext. A1 dated 29-12-1970. 2. The defendant contested the suit and denied breach of the agreement, According to the defendant, the plaintiff committed default in paying the instalments on the due dates, So the defendant is entitled to proceed for recovery of the amounts due to it, by the sale of the pump and also for the balance under the Revenue Recovery Act as per Ext. A1. The action taken by the defendant by way of sale of the pump and also, for recovery of the balance amount due to wards interest, penal interest, default fee and seizure charges are valid and legal and are not violative of any of the provisions of law as alleged by the plaintiff 3. A1. The action taken by the defendant by way of sale of the pump and also, for recovery of the balance amount due to wards interest, penal interest, default fee and seizure charges are valid and legal and are not violative of any of the provisions of law as alleged by the plaintiff 3. The Trial Court held: (1) that the plaintiff (hirer) committed default, in the payment of instalments on the due dates as provided in the hire purchase agreement, and thereby committed breach of the contract (2) the enhanced rate, of interest claimed is only moderate and is exigible and the defendant is entitled to realise the same, and (3) the provision regarding "default fee" is in the nature of penalty and cannot be taken into "consideration as a measure of reasonable compensation." So, the defendant was held not entitled to realise either the entire or any portion of the "default fee" sought to be realised from the plaintiff as reasonable compensation. It was also held that there was no evidence to show that the default fee provided in Ext. A1 is a genuine pre estimate of damages. In the result, a decree was given to the plaintiff whereby the defendant was restrained from taking any steps for recovery of the "default fee" from the plaintiff. 4. The defendant appealed to the learned Subordinate Judge, Kasargod. He held that the finding of the lower court that the defendant is not entitled to realise "default fee" is correct. The appeal was dismissed. The defendant has now appealed to this court. At the time of admission of the appeal the following substantial questions of law were formulated for consideration in the second appeal: "1. Whether on the facts and circumstances of the case default fee claimed is not legal? 2. Whether on the facts and circumstances of the case, the default fee claimed is hit by S.74 of the Contract Act? 3. Whether the plaintiff has discharged his burden of proof that the claim of default fee is penal in nature? 4. Whether on the facts and circumstances of the case the seizure charges claimed is illegal; and 5. Whether the defendant is entitled to claim the seizure charges in terms of the hire purchase agreement? 5. Mr. E. R. Venkiteswaran, learned counsel who appeared for the appellant (defendant) pressed before me only one point. 4. Whether on the facts and circumstances of the case the seizure charges claimed is illegal; and 5. Whether the defendant is entitled to claim the seizure charges in terms of the hire purchase agreement? 5. Mr. E. R. Venkiteswaran, learned counsel who appeared for the appellant (defendant) pressed before me only one point. According to learned counsel, the findings of the courts below that the default fees at the rate of Rs. 5/- per month of default or part thereof fixed in Ext. A1 agreement which is in the nature of incidental expenses is not recoverable and that it is in the nature of penalty are, unsustainable and erroneous in law. The defendant is entitled to realise the default fee as provided in Ext. A1 agreement. On the other hand. Mr. Nambiar who appeared for the respondent, contended that on the facts of this case, it has not been brought out in evidence that the defendant is entitled to the default fees and at any rate the provision relating thereto is unjustified and is violative of S.74 of the Contract Act. Counsel contended that it has not been proved that any incidental expenses were "occasioned" to the owner on account of the hirer's default, which alone will entitle the owner (defendant) to lay a claim on account of default fees. According to counsel, the respondent (plaintiff) can sustain the conclusions or judgments and decrees of the courts below which are in his favour, on this crucial factual aspect also. 6. It is common ground that Ext. A1 dated 19-12-1970 is the agreement executed between the plaintiff and the defendant. It is in a printed form. It contains series of provisions relating to the rights of parties. Condition Nos. (7), (11), (14) and (20) are relevant for a proper appreciation of the controversy raised in the suit. They are as follows: "(7) The Hirer agrees to pay interest at the rate of 1% per month thereof or part thereof on the amount of any sums overdue including any taxes, (including Sales Tax, if any) fees, repairs, supplies, damages, cost of repairs and service and all other sums which may be due from the Hirer to the Owner in respect of the machinery and under the provisions of the agreement. The hirer also agrees to pay a sum of Rs. The hirer also agrees to pay a sum of Rs. 5/- per month of default or part thereof towards the incidental expenses occasioned to the Owner on account of the hirer's default. The provisions for payment of interest shall not in any way affect or prejudice the right of the Owner as provided herein to recover possession of the machinery and to determine the agreement on default of payment mentioned in Second Schedule or for breach of terms and conditions of the agreement. It is further agreed that payment of Hire Purchase instalments and other sums due under this agreement is not subject to suspension or delay by reasons of the machinery requiring or undergoing repairs or by any cause or reason whatsoever. (Emphasis supplied) (11) The Owner at his option may terminate with or without notice the contract of Hiring and forthwith retake and recover possession of the machinery in one or more of the following events. (a) If any amount mentioned in the first column of the Second Schedule aforesaid is not paid on the date mentioned in second column of the said schedule. (b) If the Hirer commits any breach of the terms, conditions and obligations herein stipulated to be, observed and performed by him or does anything or omits to do any act which in the opinion of the Owner may prejudice the Owner's title to the machinery. (c) If the Hirer docs not pay any sum which he is liable to pay under the provisions of this agreement within one week from the date of the receipt of notice to pay the same. (d) If the Hirer becomes insolvent or has a receiver appointed by Court in respect of his assets or makes an application to declare himself as insolvent or allows the machinery to be seized in distress or in execution or under any other process of Jaw. (d) If the Hirer becomes insolvent or has a receiver appointed by Court in respect of his assets or makes an application to declare himself as insolvent or allows the machinery to be seized in distress or in execution or under any other process of Jaw. Provided that any such termination shall be without prejudice to the claims the Owner may have in respect to any terms or conditions of this agreement and it is further agreed that if the hiring is terminated by the Owner in the manner herein provided all hire and all sums due up to date of such termination shall be paid by the Hirer to the Owner and no payment, credited or allowance, in respect of payment previously made shall be made or allowed to the Hirer and all hire paid and all sums paid up to the date of such termination shall be the absolute property of the Owner. (14) The hirer shall be liable in his personal capacity as well for all amounts due or found to be due under or by virtue of this agreement to the Owner and the Owner shall in addition to other remedies available to him recover all sums due or found to be due under or by virtue of this agreement as arrears of land revenue under the provisions of the Revenue Recovery Act for the time being in force or in such other manner as the Owner may deem fit. (20) The Hirer and the Guarantors hereby admit that the agreement has been read over and fully explained to them and that they have fully understood the meaning of each and every clause and condition of the same and that they have signed this agreement with full knowledge of the conditions and obligations herein imposed and which they willingly incur and assume. The agreement as herein set forth contains the entire understanding of the respective parties, with reference to the subject matter hereof and there is no other understanding, agreements warranty or representation express or implied in any way. It is further expressly agreed that no employee of the Owner is authorised to alter or modify this agreement. In any way unless such alteration shall be approved in writing by the Managing Director of the Owner or any other person authorised by him in this behalf." (emphasis supplied) 7. It is further expressly agreed that no employee of the Owner is authorised to alter or modify this agreement. In any way unless such alteration shall be approved in writing by the Managing Director of the Owner or any other person authorised by him in this behalf." (emphasis supplied) 7. Since the sole question that was argued in this appeal relates to the exigibility and recoverability of default fees, it is useful to refer to the crucial passage in condition No. 7 which is to the following effect: "The hirer also agrees to pay a sum of Rs. 5/- per month of default or part thereof towards the incidental expenses occasioned to the Owner on account of the hirer's default." (emphasis supplied) It has to be borne in mind that condition No. (14) of Ext. A1 enables the defendant (owner) to invoke the Revenue Recovery Act for the time being in force for recovery of all sums due or found to be due under or by virtue of the agreement as arrears of land revenue. The dictum of Mathew J, delivering the judgment of the Division Bench in Isha Beevi v. Tax Recovery Officer, Quilon ( 1970 KLT 744 at p. 755). a case arising in connection with recovery of arrears due under the Income Tax Act, will support the plea that, in the particular circumstances, the defendant (Corporation) is like the Revenue, who is in the position of a decree holder, and entitled to attach the property ignoring transactions or avoid fraudulent transfers leaving it to the person interested to make a claim or institute a suit to establish his rights. In other words, the defendant, though arrayed so, in this litigation is in the role of a plaintiff (decree holder) seeking to recover amounts and the plaintiff herein is only resisting or defending the claim in substance. The defendant corporation took possession of the goods and sold it and for recovery of the balance has invoked the provisions of the Revenue Recovery Act. The plaintiff hirer has instituted the suit to establish his right and has prayed for a declaration that no amount is due to the owner (corporation). The hirer has figured as the plaintiff herein. It appears to be only a case where the plain till resists the right of the owner (defendant corporation) to proceed against him for money alleged to be due. The hirer has figured as the plaintiff herein. It appears to be only a case where the plain till resists the right of the owner (defendant corporation) to proceed against him for money alleged to be due. In other words, the role of the plaintiff is only "defensive" in character. The observations of Subba Rao, C.J. in Achayya v. Venkata Suhha Rao (AIR 1957 And. Pra. 854), in explaining the scope of S.53A of the Transfer of Property Act, that the nature of the right under the said section is available only as a defence, may be usefully quoted and by way of analogy the said observations can be said to be applicable herein also. Said His Lordship: "Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred there under should not be made to depend on the manoeuvring for positions in a Court of Law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield." It appears to me that in such circumstances, the defendant (corporation) which seeks to recover amounts alleging it to be due, under Revenue Recovery Act, is really in the role of a plaintiff (decree holder). The plaintiff, who resists the said claim, or proceedings, is in substance only defending the action. In this view of the matter, the burden of proof, is on the defendant (corporation) to allege and prove that "the incidental expenses has been occasioned to the owner (defendant) on account of the hirer's default." It appears to me that what condition No. (7) contemplates is, that if incidental expenses have been caused to the owner or resulted to the owner, on account of the hirer's fault, the hirer shall pay a sum of Rs. 5/- per month of default or part thereof. 5/- per month of default or part thereof. Since the Corporation (the owner) is claiming default fee under condition No. (7), it is bound to prove that incidental expenses have "been occasioned or caused to it" or resulted to it on account of the hirer's default. On this aspect, the learned Munsiff has held that "There is no evidence to prove the actual expenses incurred by the defendant on account of the default committed by plaintiff and it may be stated here that no attempt was made to prove the expenses incurred." Unless the defendant (corporation) is able to prove, that it has actually incurred incidental expenses, and it was occasioned or caused to it on account of the hirer's default, the attempt to realise any amount on account of default fees is unauthorised and illegal. Recovery of default fees is contemplated only in case, incidental expenses have been occasioned or caused to the owner. The burden is on the owner (defendant) who seeks recovery of "default fee" to prove that it is exigible and recoverable. It is a matter solely within its knowledge. The basic fact has not been proved by the defendant who wants to realise the amount. No evidence was let in; nor was any witness examined on behalf of the defendant (owner) as to whether any actual expenses were incurred by it to justify the levy and recovery of default fee. So on a plain interpretation of condition No. 7 of Ext. A1, due to the failure of the defendant (owner) to prove that any incidental expenses have been occasioned or caused to it, no amount can be recovered on this score. In this view of the matter, the conclusion of the courts below can be sustained and the 'judgments and decrees of the courts below affirmed. 8. However, appellant's counsel argued that the provision regarding payment of default Ices should be considered as a "secondary contract" and pressed into service the decision of the Bombay High Court reported in Bhimji N. Dalai v. Bombay Trust Corporation Ltd. (AIR 1930 Bom. 306). I am afraid that the contention is without substance. No such plea was ever taken or mooted in the courts below. 306). I am afraid that the contention is without substance. No such plea was ever taken or mooted in the courts below. As to whether the particular clause is a secondary one, is one of intention of the parties, That apart, there is only one contract herein and the clauses occurring therein should be read as a whole for understanding the terms therein. In the absence of any evidence regarding the intention of the parties, reasonably construed, the hire purchase agreement negatives the idea of any primary and secondary contract as put forward by counsel in this court. Then it was contended by appellant's counsel that in cases, similar to the one in issue it may not be possible to prove the "actual expenses incurred" towards incidental expenses and even though no evidence is available, regarding the question as to whether incidental expenses were occasioned or caused, the amount fixed in condition No. (7) by way of "default fees" is a minimum fixed and should be payable in any event regard being had to hire purchase agreements and in any view of the matter, it is a genuine pre estimate of damages and not a penalty as held by the court below and so recoverable. This argument assumes that at least "some" incidental expenses were or likely to be occasioned or caused. On that aspect, there is a total paucity of material, in the case. When counsel for the appellant was repeatedly asked, he replied that some incidental expenses "will be occasioned or caused and would have been incurred" as byway of sending notices by registered post, intimating default, and a portion of the services to be utilised for the establishment on that score, etc. That may be or may not be so but as to whether such expenses were or likely to be occasioned or caused or incurred within the meaning of condition No. (7), there is no proof available in the case. When faced with this situation, appellant's counsel attempted to sustain the recovery of default fees contending for the extreme position that the parties have agreed for the payment of the minimum fixed sum in Ext. A1 as the amount to be paid in case of breach and that it is recoverable regard being had to the peculiar nature and context of 'hire purchase' agreements which has to be construed herein. A1 as the amount to be paid in case of breach and that it is recoverable regard being had to the peculiar nature and context of 'hire purchase' agreements which has to be construed herein. If the contract of 'hire purchase' was terminated, otherwise than by breach committed by the hirer, (e.g. by way of exercise by the hirer of his right to terminate etc.). it may perhaps be argued that the minimum amount fixed by way of default fee, Rs. 5/- per month can he claimed: even in such a case, the question seems to be not free from difficulty. The discussion of the matter, in Chitty on Contracts (1983) paras 3220-3223 and Goods Hire Purchase Law (1970 Edn.) pp. 380-396 with particular reference to the decisions reported in Bridge v. Campbell Discount Co. Ltd., (1962) AC 600 (H.L.) and the decision of the Court of Appeal reported in Associated Distributors v. Hall (1938) 2 KB 83 and Gowlsten Discount Co. Ltd. v. Harman (1962) 106 SJ 369) provide useful materials in this regard. Here the courts below have found on the facts that the plaintiff (hirer) committed breach of contract. In such cases decisions of courts enjoin that when there is a breach of contract by the hirer, it should be considered as to whether the minimum amount fixed in the agreement is a penalty or reasonable amount of compensation. The defendant (owner) is entitled to receive only "reasonable compensation" from the hirer who has committed breach of the contract. The reasonable compensation, may not exceed the amount fixed in Ext. A1. In the absence of positive material, regarding the actual expenses occasioned / incurred towards "incidental expenses," appellant's counsel says that the minimum amount provided in the agreement executed between the parties is recoverable, as "reasonable compensation." Counsel for the appellant. Corporation referred to Chitty on Contracts Vol. 11 (1983 Edn.) Para.3220 to 3222 (pp. 570 and 571) and contended that the question whether a minimum payment clause, (in hire purchase transactions), imposed a penalty or liquidated damages would have to be considered if a breach of the contract was in fact proved. Counsel stated that this is permissible and is in accord with S.74 of the Contract Act. 9. Having regard to the crucial words in the contract executed between the parties, Ext. Counsel stated that this is permissible and is in accord with S.74 of the Contract Act. 9. Having regard to the crucial words in the contract executed between the parties, Ext. A1, condition No. (7), that "The hirer also agrees to pay a sum of Rs. 5/- per month of default or part thereof towards the incidental expenses occasioned to the Owner on account of the hirer's default," it may be difficult to accept the contention of the appellant's counsel, that irrespective of the fact whether incidental expenses were occasioned or caused or not, to the owner, the amount provided in condition No. (7) is recoverable as a genuine pre estimate of damages. It appears, that the condition precedent for payment of default fees is "that incidental expenses were occasioned to the owner" on account, of the hirer's default. That is not proved in this case. The alternate argument, that the amount fixed under condition No. (7) in Ext. A1 should be treated as a genuine pre estimate of damages, payable in the event of the breach of the contract, irrespective of the fact whether incidental expenses were occasioned or not, cannot hold good since there should be some evidence to show that the amount fixed in condition No. (7) in Ext. A1 in not a mere rule of the thumb but a genuine pre estimate of damages. There is no material available in the case to prove that the amount sought to be realised from the plaintiff by way of default fees fixed in the contract, represents a bona fide estimate or that it will bear any proportion (not to speak of a reasonable proportion) to the incidental expenses likely to be occasioned (caused) to the owner in case default is committed by the hirer. In the absence of such material, the amount fixed in Ext. A1 by way of default fees cannot be said to be recoverable as a reasonable compensation fixed by the parties in the event of breach of the contract. This is again a matter to be alleged and proved. The owner (defendant) who seeks to realise the amount should do so. It has failed to do so and so even on the alternate basis, the amount fixed in Ext. A1 cannot be recovered as "reasonable compensation." 10. This is again a matter to be alleged and proved. The owner (defendant) who seeks to realise the amount should do so. It has failed to do so and so even on the alternate basis, the amount fixed in Ext. A1 cannot be recovered as "reasonable compensation." 10. Perhaps the parties to the suit did not apply their mind on salient aspects arising in the case, and have also failed to bear in mind, the crucial question, as to whether the hirer committed a breach of the hire purchase agreement or whether this was a case where the agreement was put an end to otherwise. So, it is not possible to evaluate the materials over again at this stage. Regarding the argument that the amount fixed in the agreement by way of default fees should be taken to be "reasonable compensation" the guideline afforded by the Supreme Court decision is instructive. In Mania Bux v. Union of India ( AIR 1970 SC 1955 at p. 1959). the Court said: "Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty. xxx xxx xxx It is true that in every case of breach of contract the person aggrieved by the breach is not required to prove actual damage suffered by him before he can claim a decree and the court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of contract. But the expression "whether or not actual damage or loss is proved to have been caused thereby" is intended to cover different classes of contracts which come before the courts. In case of breach of some contracts it may be impossible for the Court to assess compensation arising from breach, while in other cases compensation can be calculated in accordance with established rules. Where the E court is unable to assess the compensation, the sum named by the parties if it be regarded as a genuine pre estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of the penalty. Where the E court is unable to assess the compensation, the sum named by the parties if it be regarded as a genuine pre estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of the penalty. Where loss to terms of money can be determined, the party claiming compensation must prove the loss suffered by him." (emphasis supplied) There is no evidence or finding, that in this case, it is impossible for the court, to assess compensation arising from the breach. It is common ground that any incidental expenses or loss occasioned to the defendant can be determined in terms of money. Since it has not been proved, the defendant is not entitled to recover any such sum. 11. Before closing, I should advert to one argument of the respondent's counsel. He took the extreme stand that the plaintiff is not bound by all the terms of Ext. A1 and especially the clause relating to "default fees" in so far as Ext. A1, a printed contract, contains very many printed terms. Says counsel, B that, it cannot be assumed that there was consensus between the plaintiff and the defendant regarding all the terms contained in Ext. A1, Counsel urged that the plaintiff is only an agriculturist and an illiterate person, who did not know and could not read or understand what is printed in Ext. A1 in English; nor did the Corporation do what was reasonably sufficient to give him notice of the various conditions. The respondent's counsel relied on what is known as the principle enunciated in the famous "Ticket Case" (Parker v. South - eastern Railway Company, (1877) 2 CPD 414) to contend that a party is not bound by all the terms of a printed document in the circumstances stated above by the counsel. Reference was made to a passage in Pollock & Mulla, Indian Contract Act, (1972 Edn.) page 68, to the effect, "A hire purchase agreement in English was signed by the hirer in Hindi, he not knowing the English language and not all the clauses were explained to him by the owner. The agreement does not bind the hirer (Vide Tirathraj Pandey v. Amar, 72 CWN 243). It may be difficult to accept the proposition in such wide terms. There is no material either in support of the above plea. The agreement does not bind the hirer (Vide Tirathraj Pandey v. Amar, 72 CWN 243). It may be difficult to accept the proposition in such wide terms. There is no material either in support of the above plea. Having regard to condition No. (20) in Ext. A1, extracted above, and the observations of Scrutton LJ. in L'Estrange v. Graucob (1934 (2) KB 304) the proposition, stated so widely, may not ordinarily, bear scrutiny. "In cases in which the contract is contained in a railway ticket or other unsigned document, it is necessary to prove that an alleged party was aware or ought to have been aware, of its terms and conditions. These cases have no application when the document has been signed. When a document containing contractual terms is signed, then in the absence of fraud, or I will add. misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not." The above dictum was applied in a later decision in Curtis v. Chemical Cleaning and Dyeing Company (1951 (1) All ER 631 = (1951) 1 KB 605). I may hesitate to mention, the reason which prompted me to say that "ordinarily" the wide proposition canvassed may not bear scrutiny. There may be "extraordinary" circumstances, which may deserve a closer analysis of the relevant circumstances of the particular case in the light of case law bearing on the question. The rule laid down in L'Estrange case (1934 (2) KB 394) has been adversely commented by academicians. Reference may usefully be made to a learned article in 1973 Cambridge Law Journal p. 104 by J. R. Spencer, "Signature, consent and the Rule in L'Estrange v. Graucob." Therein at p. 121, the learned author refers to two decisions -- Hitchman v. Avery (1892 (B) TLR 698, (Wright J) and Ros v. Naylor (1917 (1) KB 712 (Atkin J.). The following passage occurring at page 121 are really instructive: "Hitchman, a dairyman, persuaded A very his roundsman, to sign a contractual document containing a covenant forbidding him to set up a rival business if he left Hitchman's service. Hitchman knew that Avery could not read, although he had learnt to write his name in the army. The following passage occurring at page 121 are really instructive: "Hitchman, a dairyman, persuaded A very his roundsman, to sign a contractual document containing a covenant forbidding him to set up a rival business if he left Hitchman's service. Hitchman knew that Avery could not read, although he had learnt to write his name in the army. Wright J. held that although Avery would ordinarily have been estopped from denying his consent to the term, no such estoppel arose, because Hitchman knew Avery could not read. Thus Avery was not bound by the covenant, of which he was unaware when he signed the paper." Again in the footnote No. 94 referring to Ros v. Naylor, 1917 (1) KB 712, it is mentioned: "If a party signs the document he is taken to have assented to the terms contained in it. If although he has not signed the document, he has received it without dissent, he would also prima facie be taken to have assented to the terms. But in both cases the issue might arise whether a particular clause was one of the terms so assented to. In that case the question would be, was the document in such a form that a reasonable man reading the document with reasonable care might and did fail to see that the particular clauses in question formed part of the contractual terms?" In the footnote it is stated that these authorities were not cited in L'Estrange v. Graucob. It may be pointed out that these are illustrative cases, where the party was held to be not bound by the convenant or particular clause in a contract, notwithstanding that he had "signed" in the particular document. There were extraordinary circumstances present in those cases. Such a situation does not exist here and so the matter need not be considered in greater detail in this case. 12. In the light of the above, I hold that the conclusion of the courts below that the plaintiff is entitled to an order of injunction restraining the defendant from taking any steps to recover the "defaulting fee" from him is justified. The second appeal is without merit and is dismissed; but in the circumstances without any order as to costs.