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PETITIONER: KESHAVLAL LALLUBHAI PATEL AND OTHERSAND OTHERS

       Vs.

RESPONDENT: LALBHAI TRIKUMLAL MILLS LTD.

DATE OF JUDGMENT: 21/03/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BHAGWATI, NATWARLAL H. KAPUR, J.L.

CITATION:  1958 AIR  512            1959 SCR  213

ACT:        Contract-Extension  of  time  for  performance-Agreement  of        Parties-Requirements    of   Proof-Agreement,   vague    and        uncertain  Binding nature-Indian Contract Act, 1872  (IX  of        1872), SS. 29, 63.

HEADNOTE: The  appellants entered into a contract with the  respondent mills  for the purchase of certain goods in which  the  time for  delivery  was  fixed for the months  of  September  and October,  1942.  Before the expiry of the time  fixed  there was a strike in the mills and the respondent wrote a  letter to  the appellants on August 15, 1942, that in view  of  the strike and the political situation, the delivery time of all the pending contracts should be automatically understood  as extended for the period the working of the mills was stopped and until the normal state of affairs recurred.  Though  the strike  came  to  an end the  respondent  declined  to  give delivery of the goods on the ground that the contracts  were void.   In  the suit filed by the appellants on  January  9, 1946, for damages for breach of the contract the  respondent pleaded that there was no agreement between the parties with regard  to the extension of time and so the suit was  barred by  limitation.   The appellants’ case  and  their  evidence which was consistent with the conduct of the parties at  the relevant  time only showed definitely that they  had  orally agreed to the proposal made by the respondent for  extension of  time for the period during which the mills would  remain closed,  and as regards the second condition referred to  in the  respondent’s letter dated August 15, 1942, "  till  the normal  state  of  affairs  recurs  (which  was  vague   and uncertain),  the  evidence did not show that  there  was  an acceptance  by  the appellants of the said  condition.   The question was whether there was an enforceable agreement  for extension of time for performance of the contract within the meaning of the Indian Contract Act : Held,  (1) An extension of time for the performance  of  the contract  Under  s. 63 of the Indian Contract  Act  must  be based  upon an agreement between the parties, and  it  would not  be open to the promise by his unilateral act to  extend the  time  for  performance of his own accord  for  his  own

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benefit.  Such an agreement need not necessarily be  reduced to writing and can be proved by oral evidence or by evidence of conduct. (2)  The   respondent’s  proposal  for  extension  of   time contained  in the letter dated August 15, 1942, was  subject to  two conditions, and the fact that the  second  condition was vague and 214 uncertain does not necessarily show that it was intended  to be  treated  as a meaningless surpluses.  As  there  was  no acceptance  by the appellants of the second condition  there was  no  valid or binding agreement for  extension  of  time under s. 63 of the Indian Contract Act. Nicolene Ld. v. Simmonds, [1953] 1 Q. B. 543, distinguished. (3)  In any event as the conditions were so vague and uncer- tain  that it was not possible to ascertain  definitely  the period  for  which  the  time for  the  performance  of  the contract  was really intended to be extended, the  agreement for  extension was void under S. 29 Of the  Indian  Contract Act. Scammel  (G.) and Nephew, Ld. v. Oustom (H.  C. and  1.  G.) Queston, [1941] A. C. 251, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 78 of 1954. Appeal from the judgment and decree dated April 17, 1950, of the Bombay High Court in Appeal No. 642 of 1949, arising out of the judgment and decree dated July 30, 1949, of the Court of Civil Judge, Senior Division, Ahmedabad in Suit No. 10 of 1946. Purshottam Tricumdas, M. H. Chhatarpati and S.    S. Shukla, for the appellants. H.   N. Sanyal, Additional Solicitor-General of India and I. N. Shroff, for the respondent. 1958.  March 21.  The Judgment of the Court was delivered by GAJENDRAGADKAR  J.-This  is  an  appeal  by  the  plaintiffs against  the  decree  passed by the  High  Court  of  Bombay dismissing  their  suit to recover from  the  defendant  Rs. 1,52,334-8-9  as  damages for breach of  contract  for  non- delivery of certain cotton goods.  The plaintiffs’ claim had been  decreed by the trial court but on appeal it  has  been dismissed. The  appellants are the partners of M/S. Navinchandra &  Co. This partnership had placed an order with the respondent for 251  bales of printed chints on or about July 4,  1942,  and the  said order had been accepted by the respondent  by  its letters  dated  July 1 1 and July 20,  1942.   The  delivery period  for  the  said goods was fixed  for  the  months  of September  and October, 1942.  Another order was  placed  by the 215 appellants  with  the  respondent for 31  bales  of  printed chints on July 24, 1942, and this order was accepted by  the respondent  on July 25, 1942.  The delivery of  these  goods was to be given in the month of October 1942. On August 9, 1942, the workers in the respondent mills  went on  strike in sympathy with the Quit-India,  movement  which had then commenced.  In consequence, the respondent wrote to the appellants’ firm on August 15, 1942, and stated that, in view of the strike and the political situation, the delivery time  of all the pending contracts should  be  automatically understood  as  extended for the period the working  of  the mills  was  stopped and until the normal  state  of  affairs

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recurred.   The strike came to an end and the mills  resumed working  on  November  22,  1942.   On  December  5,   1942, Jasubhai,  who was then in charge of the management  of  the mills  was  approached  by  the  appellants,  Keshavlal  and Ratilal, for obtaining delivery of the goods.  He,  however, told them that the appellants’ contracts were void and so no delivery  could be claimed or given.  On December  6,  1942, the  said  Jasubhai wrote to the appellants  informing  them that  their contracts were not binding on the mills as  they were null and void.  It may be mentioned at this stage that, when the contracts were made between the appellants and  the respondent, Chinubhai Lalbhai was in charge of the  managing agency  of the mills.  Subsequently, on September 18,  1942, as  a  result of the compromise between  Chinubhai  and  his brothers Jasubhai and Babubhai, this managing agency of  the mills fell to the share of Jasubhai and Babubhai. On December 17, 1942, the appellants wrote to the respondent that, as the respondent had extended the time of delivery of all  goods  by  its  letter  dated  August  15,  1942,   the respondent  was  bound to deliver the contracted  goods  and that  if the respondent did not do so, the appellants  would be   compelled  to  take  legal  proceedings   against   the respondent.   In reply, the respondent repeated its  earlier contentions  by  its letter dated December  20,  1942.   The appellants  then formally demanded the delivery of goods  in January 216 and  again in February 1943, and, since the demand  was  not complied  with,  the appellants filed the  present  suit  on January  9,  1946,  claiming damages to the  extent  of  Rs. 1,52,334-8-9 with interest and costs. In  the plaint, it was alleged that the suit was in time  because the request made by the respondent for extension of time had been accepted  by  the  appellants.  ’The suit  was  resisted  by  the respondent  on  several grounds.  In particular,  the  respondent urged that there was no agreement between the parties with regard to  the  extension  of  time  and  so  the  suit  was  barred  by limitation.   The learned trial judge framed several issues  with two  of which the present appeal is concerned.  These two  issues related to the question of extension of time for the  performance of  the  contract  and the plea of  limitation.   On  both  these points, the learned judge found in favour of the appellants.   In the  result  the appellants’ claim was decreed.   The  respondent then  preferred  an appeal in the High Court at  Bombay  and  his appeal  was allowed.  The learned Judges of the High  Court  have held  that  the oral evidence led by the appellants to  show  the acceptance of the respondent’s proposal for the extension of time could not be treated as true or reliable.  They also rejected the appellants’ case on the ground that the conduct of the appellants subsequent to the stoppage of the respondent’s mills did not show acceptance  of the respondent’s proposal for extension  of  time. Besides, in the opinion of the High Court, even if acceptance had been  proved,  it  was not possible to  ascribe  any  certain  or definite  meaning  to  the words used by the  respondent  in  its letter dated August 15, 1942 (Ex.  P. 78), and so this  agreement to  extend time was void since it wag vague and uncertain.   That is why it was held that the appellants’ suit was barred by  time. It  is  these  findings which are challenged  before  us  by  the appellants  in the present appeal.  It is obvious that the  value of the claim in the trial court as well as before us is more than Rs.  20,000 and the judgment of the High Court under  appeal  has reversed  the  decree  passed by the learned  trial  judge.   The appellants are thus entitled to agitate 217 both questions of fact and of law before us in this appeal.

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The  first  point  which has been urged  before  us  by  the appellants  is  in respect of the finding made by  the  High Court  against  the  appellants  on  the  question  of   the extension of time for the performance of the contract.   The argument  is that the learned Judges of the High Court  were in  error  in  rejecting  the  oral’  evidence  led  by  the appellants.   It would, therefore, be necessary to  consider the  material evidence bearing on this point.  The  proposal to extend time was made by the respondent by its letter (Ex. P.  78)  on August 15, 1942.  Ratilal P. W. I  stated  that, four or five days after this letter was received, he went to Ahmedabad where he met and consulted Keshavlal.  Then he saw Chinubhai  at  the mills and told him that he  accepted  the extension  of  time  as  per the  said  letter.   In  cross- examination,  Ratilal  added that he met  Chinubhai  at  the office  in  his mills.  I He also stated that,  besides  the subject of extension of time, no other matter was  discussed between  them  at  the said meeting.  He  admitted  that  no letter  had been written by the appellants confirming  their acceptance of the respondent’s proposal to extend time.  The evidence  given by Ratilal is corroborated by the  testimony of  Keshavlal.   It appears on the evidence  of  both  these witnesses  that, after the mills reopened, they had gone  to Jasubhai and demanded delivery of the bales according to the contracts.   The appellants argued that there is  really  no reason  why  the evidence of these two witnesses  should  be disbelieved.  It is significant that the main plea raised by the respondent against the appellants’ claim in the  present suit was that the contract itself was invalid and not  bind- ing on it and that the letter written by Laxmidas on  August 15, 1942, was likewise unauthoirised and not binding on  it. These pleas have been negatived in the courts below.  It  is fairly  clear from the record that the attitude  adopted  by the  respondent in the present dispute was actuated more  by Jasubhai’s prejudice against Chinubhai and it may be safely 28 218 asserted that some of the pleas taken by the respondent were known  to the respondent to be untenable.   The  appellant,% rely  upon this conduct of the respondent and  suggest  that the  oral testimony of Ratilal and  Keshavlal is  consistent with  probabilities and should be believed.  Chinubhai  also gave  evidence in the case.  He stated that the proposal  to extend  time  had  ’been  conveyed  by  Laxmidas  under  his instructions.  It is common ground that similar request  was made to all the constituents of the mills both in  Ahmedabad and  outside Ahmedabad.  Chinubhai did not remember  whether he  had  got any written reply to the letter of  August  15, 1942,  from  the appellants but the effect of  some  of  the statements made by him would generally appear to be that lie had  received oral acceptance of the said proposal from  the appellants.  However, in answer to further questions put  to him  in cross-examination, Chinubhai stated that he did  not remember whether  the appellants accepted the offer or  not. It is, however, clear that the evidence of Chinubhai is  not at all inconsistent with the statements made by Ratilal  and Keshavlal.  It is common ground that the prices of the goods were  rising at the material time and so it is  more  likely that the appellants were willing to extend time because they would  naturally be keen on obtaining delivery of the  goods under  the contract.  In both the courts below  an  argument appears  to have been urged by reference to the sauda  books kept by the respondent.  Shri Dharamasi Harilal had  brought the sauda books in the court but neither party got the books exhibited  in  the case.  The learned trial judge  took  the

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view  that,  since  the sauda books were  not  produced  and proved  by the respondent, it led to the inference that,  if the  books  had  been produced, they  would  have  shown  an endorsement  made  against  the  suit  contracts  that   the extension  of time had been agreed upon by  the  appellants. On the other hand, the learned Judges of the High Court were inclined  to draw the inference that, since  the  appellants did not want the said sauda books to be exhibited, it  would appear  that the said books did not contain any  note  about the extension.  In our opinion, it would be      219 unsafe to draw either of these two inferences in the present case.  Therefore, the decision of the question would  depend upon  the  appreciation of oral evidence considered  in  the light  of probabilities and other relevant circumstances  in the  case.  On the whole, we are disposed to take  the  view that the evidence given by Ratilal and Keshavlal is true. Besides, the conduct of the parties also points to the’ same conclusion.  If the period for the delivery of the goods had not been extended by mutual consent, we would normally  have expected the appellants to make a demand for delivery of the goods  on due dates as fixed under the  original  contracts. It  is conceded that no such demand was made.  On the  other hand,  it is only after the mills reopened that Ratilal  and Keshavlal  saw Jasubhai and discussed with him the  question about  the delivery of the goods.  This is admitted  by  the respondent  in its letter dated December 6, 1942,  (Ex.   P. 62).   The appellants were, however, told by the  respondent that  the  saudas  of their firm were  not  binding  on  the respondent  and  that the same were void.   It  is  somewhat remarkable  that though this document disputes the  validity of  the sauda, even alternatively it does not  suggest  that the  period  of  extension had not been  agreed  to  by  the appellants.   It may be that, since Jasubhai then wanted  to challenge  the validity of the contracts themselves, he  did not care to make any alternative plea.  But however that may be,  the  conduct  of the appellants  is,  in  our  opinion, consistent  with  their  case that they had  agreed  to  the extension of time. The  true legal position in regard to the extension of  time for the performance of a contract is quite clear under s. 63 of  the Indian Contract Act.  Every promise, as the  section provides,  may  extend  time  for  the  performance  of  the contract.   The question as to how extension of time may  be agreed  upon by the parties has been the  subject-matter  of some  argument at the Bar in the present appeal.  There  can be  no doubt, we think, that both the buyer and  the  seller must  agree  to extend time for the delivery of  goods.   It would  not be open to the promise by his unilateral  act  to extend 220 the  time  for  performance of his own accord  for  his  own benefit.  It is true that the agreement to extend time  need not necessarily be reduced to writing.  It may be proved  by oral  evidence.  In some cases it may be proved by  evidence of conduct.  Forbearance on, the part of the buyer to make a demand for the delivery of goods on the due date as fixed in the  original  contract may conceivably be relevant  on  the question  of  the  intention of the’  buyer  to  accept  the seller’s proposal to extend time.  It would be difficult  to lay  down any hard and fast rule about the  requirements  of proof  of  such  an  agreement.  It  would  naturally  be  a question of fact in each case to be determined in the  light of  evidence adduced by the parties.  Having regard  to  the probabilities  in  this  case, and to  the  conduct  of  the

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parties  at the relevant time, we think the  appellants  are entitled  to  urge  that  their  oral  evidence  about   the acceptance of the respondent’s proposal for the extension of time should be believed and the finding of the learned trial judge on this question should be confirmed. The  finding  in favour of the appellants on this  point  is not, however, decisive of the dispute between the parties in the  present  appeal.   It still remains  to  be  considered whether   the  agreement  between  the  parties  about   the extension of time suffers from the infirmity of  uncertainty and  vagueness.  The learned Judges of the High  Court  have come  to the conclusion that the letter of August 15,  1942, which  is  the basis of the agreement for the  extension  of time  is  so vague and uncertain that the  agreement  as  to extension  of  time itself becomes void  and  unenforceable. The  correctness of this conclusion must now be  considered. The  basis of the agreement is the letter and so it  is  the construction  of  this  letter  which  assumes  considerable importance.  This is how the letter reads: Dear Sirs, Your  good  selves are well aware of the  present  political situation on account of which entire working of our Mills is closed. At present, it is difficult to say as to how long this state of affairs will continue and as such we regret 221 we  cannot fulfil the orders placed by you with us in  time. Under the circumstances, please note that the delivery  time of all your pending contracts with us shall be automatically understood as extended for the period the working is stopped and till the normal state of affairs recurs." It  would  be  noticed that the letter begins  by  making  a reference  to the current political situation which  led  to the  closure  of  the mills and it adds  that  it  was  vary difficult  to anticipate how long the said state of  affairs would  continue.   It  is  common  knowledge  that,  at  the material time, the whole country in general and the city  of Ahmedabad  in particular was in the grip of a  very  serious political agitation and nobody could anticipate how long the strike  resulting from the said, agitation would  last.   It ’is  in that atmosphere of uncertainty that  the  respondent requested the appellants to note that the time for  delivery would be automatically extended " for the period the working is  stopped and till the normal state of affairs  recurs  ". The  first  condition does not present any  difficulty.   As soon  as  the strike came to an end and the closure  of  the mills   was  terminated,  the  first  condition   would   be satisfied.  It is the second condition that creates the real difficulty.  What exactly was meant by the  introduction  of the  second condition is really difficult to  determine.  So many  factors  would contribute to the  restoration  of  the normal state of affairs that the satisfaction of the  second condition   inevitably  introduces  an  element   of   grave uncertainty  and  vagueness in the said  proposal.   If  the normal state of affairs contemplated by the second condition refers  to  the  normal state of affairs  in  the  political situation  in  the  country that  would  be  absolutely  and patently uncertain.  Even if this normal state of affairs is construed  favourably  to the appellants and it  is  assumed that  it  has reference to the working of  the  mills,  that again  does not appreciably help to remove the  elements  of uncertainty  and vagueness.  When can normal working of  the mills  be  deemed to recur?  For the normal working  of  the mills several factors are essential.  The full complement of workmen should be

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222 present.  The requisite raw material should be available and coal in sufficient quantities must be in stock.  Some  other conditions also may be necessary to make the working of  the mills  fully  normal.   Now,  unless  all  the   constituent elements  of the normal working of the mills are  definitely specified  and agreed upon, the general expression  used  in the  letter  in that behalf cannot be construed  as  showing anything  definite  or  certain.   Therefore,  even  if  the appellants’ evidence about the acceptance is believed,  that only shows in a very general and loose way the acceptance of the proposal contained in the letter.  It does not assist us in  determining what was understood between the parties  and agreed  upon  by them as constituting the  normal  state  of affairs  mentioned  in the letter.  In this  connection,  it would  be relevant to refer to the material  allegations  in the plaint itself.  In para. 7, the plaint has averred  that the plaintiffs agreed to the said extension of time for  the delivery  of the said goods as suggested by  the  defendant, that is by a period during which the said mills would remain closed.  In other words, the whole of the plaint proceeds on the  assumption  that the extension of the  period  for  the delivery of goods had reference only to the stoppage of  the mills.  Indeed, it was sought to be argued at one stage that the  second condition in the letter should be treated  as  a meaningless surplusage and the extension of time agreed upon between the parties should be read in the light of the first condition  alone.  In support of this argument reliance  was placed on the decision in Nicolene Ld. v. Simmonds (1).   In that  case,  a  contract  for the  sale  of  a  quantity  of reinforcing  steel  bars was expressed as subject to  "  the usual conditions of acceptance ". The seller repudiated  the contract  whereupon the buyers claimed and were  awarded  by the  trial  judge damages for the breach  of  contract.   On appeal,  the  seller  contended that the  contract  was  not concluded there being no consensus ad item in regard to  the conditions of acceptance.  It was held that, there being  no "  usual  conditions  of acceptance  ",  the  condition  was meaningless and should be ignored, and that the (1)  [1953] 1 Q. B. 543, 552. 223 contract  was  complete and enforceable.  Dealing  with  the relevant clause, Denning L. J. observed, "that clause was so vague  and  uncertain  as to be  incapable  of  any  precise meaning.   It  is  clearly severable from the  rest  of  the contract.  It can be rejected without impairing the sense or reasonableness of the contract as a whole, and it should  be so reacted.  The contract should be held good and the clause ignored ". Then’ the learned Lord Justice pointed out that " the  parties themselves treated the contract as  subsisting. They  regarded  it as creating binding  obligations  between them and it would be most unfortunate if the law should  say otherwise  ". " You would find ", observed the learned  Lord Justice,  " defaulters all scanning their contracts to  find some  meaningless  clause on which to ride free  ".  In  our opinion,  this  decision  can be of  no  assistance  to  the appellants’  case  before us.  The second condition  in  the letter  in  question constitutes a clause which  had  to  be agreed  upon  by  the parties since it  formed  one  of  the conditions  of the respondent’s proposals for the  extension of  time.  The respondent’s proposal was to extend time  for the  performance of the contract subject to  two  conditions and unless both the conditions were agreed upon between  the parties there would be no valid or binding extension of time under  s. 63 of the Indian Contract Act.  The fact that  the

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second  condition introduced by the respondent is vague  and uncertain, does not necessarily show that the said condition was  intended  by  the respondent to be the  addition  of  a meaningless surplusage.  If that be the true position,  then the  material allegations in the plaint itself  demonstrably prove that there has been no acceptance by the appellants of the  second  condition mentioned by the  respondent  in  its proposal to extend time for the performance of the contract. Besides,  as  we  have  already  indicated,  it  is   really difficult  to  hold  that the respondent  had  a  clear  and precise notion as to the constituent elements of the  second condition  mentioned in its letter and that  the  appellants were  duly  apprised of the said  constituent  elements  and agreed with the said condition with that knowledge.  In this connection, we may usefully refer to the decision 224 of  the  House of Lords in Scammel (G.) And Nephew,  Ld.  v. (Ouston)  (H.   C.  And  J. 0.)  (1).   In  this  case,  the respondent  had agreed to purchase from the appellant a  new motor-van  but stipulated that this order was given  on  the understanding that the balance of purchase price can be  had on the hire-purchase terms over a. period of two years.  The House  of  Lords held that the clause  as  to  hire-purchase terms  was  so  vague  that  no  precise  meaning  could  be attributed  to it and consequently there was no  enforceable contract  between the parties.  In his speech,  Lord  Wright observed  that  " the object of the court is to  do  justice between  the  parties, and the court will do  its  best,  if satisfied  that there was an ascertainable  and  determinate intention  to  contract, to give effect to  that  intention, looking at substance and not at mere form...... But the test of  intention  is to be found in the words used.   If  these words, considered however broadly and untechnically and with due regard to all the just implications, fail to evince  any definite  meaning  on which the court can  safely  act,  the court has no choice but to say that there is no contract  ". Then the learned Law Lord added that his reason for thinking that  the clause was vague was not only based on the  actual vagueness  and unintelligibility of the words used  but  was confirmed  by  the startling diversity of  the  explanations tendered by those who think there was a bargain of what  the bargain was.  We would like to add that, when the appellants attempted  to  explain  the  true  meaning  of  the   second condition, it was discovered that the explanations given  by the  appellants’ counsel were diverse and inconsistent.   We must,  therefore, hold that the learned Judges of  the  High Court  were  right  in coming to  the  conclusion  that  the conditions mentioned by the respondent in its letter  asking for extension of time were so vague and uncertain that it is not  possible to ascertain definitely the period for  which- the  time  for the performance of the  contract  was  really intended to be extended.  In such a case, the agreement  for extension must be held to be vague and (1)  [1941] A.C. 251. 225 uncertain  and  as  such  void under s.  29  of  the  Indian Contract Act. There  is one more point which must be considered.   It  was strongly  urged  before us by the appellants  that,  in  the trial  court, no plea had been taken by the respondent  that the  agreement  for  the extension of  time  was  vague  and uncertain.  No such plea appears to have been taken even  in the  grounds  of appeal preferred by the respondent  in  the High Court at Bombay; but apparently the plea was allowed to be  raised  in  the High Court and the  appellants  took  no

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objection  to it at that stage.  It cannot be said  that  it was  not open to the High Court to allow such a plea  to  be raised  even for the first time in appeal.  After  all,  the plea  raised  is  a  plea  of  law  based  solely  upon  the construction  of the letter which is the basis of  the  case for  the  extension  of  time for  the  performance  of  the contract  and  so it was competent to the  appeal  court  to allow  such  a plea to be raised under 0. 41, r. 2,  of  the Code  of Civil Procedure.  If, on a fair  construction,  the condition  mentioned in the document is held to be vague  or uncertain,  no evidence can be admitted to remove  the  said vagueness  or uncertainty.  The provisions of s. 93  of  the Indian  Evidence  Act are clear on this point.   It  is  the language  of  the  document  alone  that  will  decide   the question.   It  would not be open to the parties or  to  the court  to  attempt  to remove the  defect  of  vagueness  or uncertainty by relying upon any extrinsic evidence.  Such an attempt  would  really  mean the making of  a  new  contract between  the parties.  That is why we do not think that  the appellants can now effectively raise the point that the plea of  vagueness should not have been entertained in  the  High Court. The  result is we confirm the finding of the High  Court  on the question of vagueness or uncertainty of the agreement to extend  time and that must inevitably lead to the  dismissal of the present appeal. We  are,  however, free to state that we have  reached  this conclusion  with  some reluctance because we  are  satisfied that there are no bona fides in the attitude 29 226 adopted  by the respondent in the present  litigation.   The main  pleas  raised by the respondent  against  the  binding character of the contracts themselves as well as against the authority  of Laxmidas to write the letter for extension  of time  have been rejected by both the courts below,  and  the only  ground on which the respondent succeeds before us  was made  on  behalf of the ,respondent for the  first  time  in appeal.   Under these circumstances we think the fair  order as  to  costs would be that parties should  bear  their  own costs  throughout.   The result is the appeal fails  and  is dismissed   but  there  would  be  no  order  as  to   costs throughout.                                      Appeal dismissed.