Kanhaiya Singh, J.

1. This is an appeal by the Union of India representing the railway administration from a Judgment and Decree of the 1st Additional Subordinate Judge, Patna dated 30th June, 1948, which decreed the respondents suit for damages for breach of three contracts.

1a. In 1943 the Divisional Superintendent, East Indian Railway (now Eastern Railway) Dinapore, entered into contract with the plaintiff for supply of food-grains to the railway. These contracts were made by means of three purchase orders, No. 69, dated 20-7-1943, No. 76 dated 24-7-1943 and No. 106 dated 24-8-1943. The plaintiff agreed to supply to the railway administration 10,000 maunds of gram of the first quality at the rate of Rs. 15 per maund under the first contract, 1000 maunds of dhenki rice of medium quality at the rate of Rs. 22/8 per maund and 5000 maunds of white wheat at the rate of Rs. 20/8 per maund under the second contract and 15,000, maunds of rice of medium quality at the rate of Rs. 24 per maund under the third contract.

The delivery of all the goods under the first and third contracts was to be made P. O. R. at any station on the East Indian Railway in the State of Bihar, while that the second contract was to be made P. O. R. at any station on the East Indian Railway within the Dinapore division. The terms of all the three contracts were identical, that is, all the three purchase orders provided that the supply should commence within seven days from the date of the receipts of the orders and should be completed within one calender month.

All the purchase orders were received by the plaintiffs on the very day they were made, that is, on 20-7-1943, 24-7-1943 and 24-8-1943, respectively. He made some supplies under the different contracts but could not supply the entire quantity of goods by the stipulated dates. On 24-9-1943 the railway intimated to the plaintiff by a telegram that the outstanding goods under the three purchase orders would not be accepted unless despatched before 1-10-1943.

The railway administration refused to accept the goods delivered after 1-10-1943. Thereupon, the plaintiff after giving notice to it resold, by public auction between 18-2-1944 and 23-2-1944, the goods stored at the" various railway stations or in his godown at those places. The price fetched at the auction sales was far less than the price the railway administration had agreed to pay under the different purchase orders.

The plaintiff, therefore, claimed as damages the difference between the contractual price and the price he got by resale. The plaint was subsequently amended, and by the amendment the plaintiff alternatively claimed as damages the difference between the stipulated price and the market price of those commodities on the relevant dates. The case of the plaintiff is that the time was not of the essence of the contract, and the refusal by the railway administration to accept the deliveries after 1-10-1943 was wrongful and in breach of the contracts. Alternatively the plaintiff pleaded that even if time be regarded as of the essence of the contract, there was waiver on the part of the railway administration, and notwithstanding the expiration of the time fixed by the different contracts, the contracts were kept alive.

His case further was that although the railway administration abruptly fixed 1-10-1943 as the last date of supply, the plaintiff would have supplied the entire quantity stipulated for, within a reasonable time, but for the impediments, deliberately put by the railway officials. It is said that immediately on receipt of the telegram he advised his agents to take steps to deliver the goods at the station on the East Indian Railway but as there was no space in the railway godowns, abstractions were put in his way in taking the goods to the railway station platforms or enclosures still it is alleged that his agents succeeded in some cases in taking and stocking large number of bags on the railway platform on the East Indi