The relationship of principal and agent may be constituted by express appointment of the principal, or by implication of law, from the conduct or situation of the parties or from the necessity of the case, or by subsequent ratification by the principal or acts done on his behalf.

A. K. MUKHERJEE, J.

( 1 ) THIS is a suit for the recovery of the sum of Rs. 1512/2/3 pies from the defendants. The facts and circumstances of the case are as follows :

( 2 ) SOME time in March 1949 the plaintiff made an application to the Civil Supplies Department of the Government of West Bengal for a permit for the supply of 15 tons of cement. At that time the Cement Control Act was in force and it was not possible to procure cement in the open market. The Government of West Bengal issued a permit in favour of the plaintiff for 15 tons of cement which under the terms of the permit were to be supplied by Messrs. Bharatiya Byapar Mondal, the defendant No. 2 in this suit. Under the terms and conditions of the said permit delivery of the cement was to be taken within 20 days from the date of the issue of the permit and the plaintiff was directed to deposit the price of the cement with the stockist within a week from the date of the receipt of the license. After obtaining the permit the plaintiff gave a cheque for the sum at Rs. 2264/14/- to the defendant No. 2. He was asked to go for taking delivery of the cement about a week after he had handed over the cheque so that the cheque could be encashed in the meantime. The defendant No. 2 gave a delivery challan. Subsequently the plaintiff was given delivery only of 5 tons of cement. This cement was of a very inferior quality and the plaintiff complains that after taking delivery of the bags of cement he found that the cement had been opened and rebagged obviously after it had been tampered with. Apart from these 5 tons of Cement of inferior quality the plaintiff did not receive any further quantity of cement. He wrote several times to the defendant No. 2 for delivery of the balance quantity of the cement but he does not appear to have received anything. He wrote to the officers of the State of West Bengal, the defendant No. 1, in this connection but all attempts to get further quantities of cement from the defendant No. 2 were futile. Thereafter this suit was filed on March 9, 1951.

( 3 ) THE plaintiff makes the defendant 'stale of West Bengal responsible for the loss that he has suffered on the ground that the defendant No. 2 was the approved agent of the defendant No. 1 and the sum of Rs. 22s4/14/-had been paid by the plaintiff to the defendant No. 2 as the agent of the defendant No. 1 and under the directions of the defendant No. 1.

( 4 ) THE suit is being contested by the defendant No. 1. The defendant No. 2 did not enter appearance. In fact, it appears that the said defendant can no longer be traced and whoever were the proprietors of that firm have disappeared from the scene altogether.

( 5 ) IN the Written Statement filed by the State of West Bengal they have taken the point that the defendant No. 2 was merely an authorised dealer and stockist of cement under the Cement Control Order regulating the sale and purchase of cement and that the defendant No. 2 was never the agent of the defendant No. 1. In the circumstances, the plaintiff has no cause of action against the defendant.

( 6 ) ON these pleadings the following issues were settled for determination :-- (a) Did the defendant direct the plaintiff to deposit any amount to defendant No. 2? (b) Did the plaintiff deposit any amount with the defendant No. 2?2. Did the defendant No. 2 fail to deliver 10 tons of cement? 3. Was the sum of Rs. 2,264/14 as paid by the plaintiff to defendant No. 2 as agent of defendant No. 1? 4. Has the plaintiff any cause of action against defendant No. 17 5. Is the notice alleged to be under Section 80 C. P. C. valid and sufficient? 6. To what relief is the plaintiff entitled?

( 7 ) DR. Das appearing on behalf of the plaintiff has made it clear that his client is not interested in any decree against the defendant No. 2. Obviously such a decree would be a paper decree and would give no relief to the plaintiff.

( 8 ) AN agreed brief of documents (with the exception of four documents) was tender

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