K. C. DAS GUPTA, C. J.

( 1 ) THE main question for decision in this appeal is whether the plaintiff, who is the appellant before us, should be allowed to raise an issue as regards relief under Section 65 of the Indian Contract Act though the suit as framed was for recovery of a sum of money on the basis of a contract and on an allegation of failure of consideration for the contract. It appears that the plaintiff being in need of a Lancashire Boiler registered its requirement with the Department of Government which had been helping parties in India to obtain such boilers from abroad. By a letter dated 31st of January 1946 addressed to the Assistant Coal Commissioner of the Department of Industries and Supplies. Government of India, the plaintiff requested allocation of 2 Lancashire Boilers including one "by John Thompson with a working pressure of 150 lbs. per sq. inch complete with fittings, mountings and firebars". On 19th February 1946 the Assistant Coal Commissioner wrote that one second-hand Lancashire Boiler had been allocated to the plaintiff for installation at the Churulia Colliery. It appears further that after the plaintiff had sent a cheque for Rs. 34,000/-on account of

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