Raj Kishore Prasad, J.

1. This appeal is by the defendant railway from the judgment dated the 17th May, 1952 of Mr. K. K. Bose, 6th Additiona Subordinate Judge, Patna, whereby the plaintiffs --respondents suit has been decreed, and, the defendant -- appellant has been ordered to pay a certain sum of money.

2. The decision of tho appeal rests upon the construction of tho contracts between the parties -- Exts. A(1), A(2), A(5), A(7) and A(8).

3. The principal question, however is : Whether the agreement for payment of the penalty equal to half per cent per day on the value of the undelivered quantity of goods by the plaintiffs to the defendant was in the nature of a penalty?

4. There is another connected question also, namely, whether there was an implied agreement that the defendant railway would supply wagons to the plaintiffs for supply of the goods contracted for?

5. The above five contracts were made by execution of purchase orders, of different dates, for supply of different kinds of commodities. These Purchase Orders are printed forms of the defendant-railway in which such agreements are entered into. Terms and conditions are printed on the reverse of each Purchase Ord