Bapna, J.—This is a second appeal by the plaintiffs in a suit for recovery of money.

2. The appellants sued the Government of Jaipur who is respondent in this case on the allegations that they had a contract for the supply of various articles to the Lady Willing-don and the State Zenana Hospitals at Jaipur for a period from 1st September, 1942, to 31st August, 1943, and supplied articles of the value of Rs. 4628/12/6 for which they had not been paid. After adding interest amounting to Rs. 732/- at 6% p.a. they claimed Rs. 5260/12/6.

3. The defendant admitted that the plaintiffs had supplied articles of the value of Rs. 4614/10/6, but pleaded non-liability on the ground that one of the articles for which they had contracted to supply was malmal of a particular quality and width. This was to be supplied at Rs. 4/2/- per Than. The plaintiffs informed on the 20th of February, 1943, that they would not be able to supply malmal from 1.3.43. They ceased to supply malmal from 13th March, 1943, and the department accordingly got the supply of malmal from Maliram Nemichand at Rs. 9/1/- per. Than. The plaintiffs were liable to pay the excess price paid for the malmal thans obtained by the department elsewhere, and after deducting the excess price paid by the department there remained a sum of Rs. 573/13/-payable to the plaintiffs This item also included the security amount which the plaintiffs had deposited at the time of taking the contract. It was pleaded that the Director of Medical Services who had entered into the contract on behalf of the then Govt. of Jaipur deducted the sum of Rs. 73/-13/- on account of negligence in the supply of articles, and he was prepared to refund the sum of Rs. 500/-, but the plaintiffs did not take away the amount. According to the defendant, therefore, there was no amount outstanding against the Government beyond the sum of Rs. 500/- which the Government had always been willing to pay.

4. The plaintiffs in rejoinder accepted the correction in their bills as pointed out by the defendant and reduced their claim of the principal sum to Rs. 4614/8/- and reduced the claim of interest to Rs. "30/-. They denied their liability to pay for the excess charges incurred by the Director of Medical Services in obtaining malmals elsewhere on the ground that the plaintiffs had informed the defendant that malmals as contracted were not available in the market and they could supply nensukh in their place and the department accepted nensukh for about two months and agreed to pay its price at 9/6/- per than. The defendant had later informed the plaintiffs that nensukh was not required also but they were not informed that the Director of Medical Services would get malmals from the market at enhanced rates owing to the inability of the plaintiff to supply the same. It was pleaded that no indent was issued to them as required under the contract for these malmals and, therefore, they were not liable to pay any damage caused to the department by obtaining malmals elsewhere.

5. The trial court passed a decree for Rs. 80/- with proportionate costs.

6. The plaintiffs filed an appeal for the balance of the amount and the defendant filed cross objections for costs. The learned District Judge dismiss the appeal with costs, but allowed cross-objections and held the defendant entitled to costs in both the courts. The plaintiffs have come in second appeal.

7. The relevant portion of the agreement entered in to between the plaintiffs on the one hand and the Director of Medical Services on the other, Ex. A.l, dated 21st of August, 1942 is as under:—

Term 1.—During the continuance of the contract, the contractor (Ramlaxman Surajnarain, plaintiffs) shall supply to the Mayo Hospital (later know as the Lady Willingdon Hospital) and the Zenana Hospital such of the diets, etc., specified in the schedules within 24 hours of the receipt of indents or intimations to be subsequently confirmed by regular indents at the settled rates. Any article of food not

Click Here to Read the rest of this document