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 section section Shukla for the appellants
H N Sanyal Additional Solicitor General of India and I N Shroff for the respondent
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 152334 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 MS 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 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 152334 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 exhibit 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 20000 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
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 exhibit 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 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 exhibit 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 section 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 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 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
vs 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  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 section 63 of the Indian Contract Act
The fact that the 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
vs 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 1 225 uncertain and as such void under section 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 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 section 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


Summary:
Appellant No 1 Laxmi Raj Shetty was convicted and sentenced to death under section 302 Indian Penal Code by the First Additional Sessions Judge Madras
for committing the murder of deceased PN Gnanasambandam Acting Manager of the Karnataka Bank Madras
He was further convicted under section 392 for having committed robbery from the strong room of the Bank and also under section 449 for having committed house trespass with intent to commit the said robbery and murder and was sentenced to undergo rigorous imprisonment for seven years on each of these courts the sentences being directed to merge in the sentence of death
Appellant No 2 Shivram Shetty father of the appellant No 1 was convicted by the Additional Sessions Judge under section 212 and section 411 IPC and sentenced to rigorous imprisonment for three years on both counts
The Sessions Judge had relied upon the testimony of PW 18 Smt
Kanaka and other prosecution witnesses and had come to the conclusion that the circumstances from which the conclusion of guilt was to be drawn had been fully established against both the accused and all the facts so established were consistent only with the hypothesis of their guilt and excluded every reasonable possibility of their innocence
According to the prosecution the accused Laxmi Raj Shetty a trainee clerk in the Bank and the deceased Gnanasambandam used to work in the bank after the normal working hours and leave the bank premises together at night around 9 or 930 pm
On the fateful 707 night the deceased was working in the Bank after the normal banking hours
At about 730 pm the appellant No 1 accused came to the bank premises as he used to work late in the evenings and help the deceased
Some time after 730 pm the deceased went to the toilet where he was struck on the head by the assailant with a stitcher as a result whereof he slumped
Thereafter he was strangulated with a towel and also stabbed to death by a pair of stitchers
At about 9 pm the accused was seen coming out of the building by PW 18 Smt
Kanaka
The accused closed the outer door of the Bank and was seen by PW 18 going
He returned with a suitcase re entered the Bank premises and came out with a bag suitcase and a brief case and after placing the suitcase on the steps went inside again and came out with a large coffee coloured skybag
He then got an autorickshaw from the Burma Bazar and disappeared into the night in the auto rikshaw
On a reference by the Additional Sessions Judge the High Court confirmed the convictions and sentences of both the appellants
The appellants then appealed to this Court for relief by this appeal
Dismissing the appeal with a modification directing that the sentence of death passed on appellant No 1 be converted into one of life imprisonment the Court  HELD The prosecution case against the appellants rested purely on circumstantial evidence
The law relating to the proof of a case based purely on circumstantial evidence has been settled by several authorities of this Court as well as the High Courts
724F G In cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused
Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved
There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must 708 be such as to show that within all human probability the act must have been done by the accused
725D E The Court did not discover any infirmity in the reasoning or the conclusion arrived at by the Additional Sessions Judge or the High Court
725F The Court enumerated and went through the circumstances arising from the evidence adduced by the prosecution broadly under the heads 1 The accused had occasion to learn the method of operating the safety vault 2 The fact that the accused was last seen leaving the Bank premises 3 Purchase by the accused of a suitcase and a skybag from Burma Bazar 4 Stay of the accused at Hotel Chola Sheraton under the assumed name of Maharaj 5 Stay of the accused at Hotel Moti Mahal at Mangalore 6 Recovery of coffeecolour skybag from the residence of late Kumari Usha Rani sister of the accused and 7 Recovery of the stolen money of the Bank from the accused and thought that the cumulative effect of all these circumstances was sufficient and conclusive to raise an inference of guilt
726D727F G731C732H733F734CE The accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th May and the regional newspapers of the 30th May regarding both the appellants being taken into custody at Mangalore and the recovery of the entire stolen amount from the residence of appellant No 2 at Mangalore along with his statement under section 313 of the Code of Criminal Procedure but the appellants did not examine the Editors and news reporters of the newspapers
Judicial notice cannot be taken of the facts stated in a news item being in the nature of hearsay secondary evidence unless proved by evidence aliunde
A report in a newspaper is only hearsay evidence
A newspaper is not one of the documents referred to in section 782 of the Evidence Act by which an allegation of fact can be proved
The presumption of genuineness attached under section 81 of the Evidence Act to a newspaper report cannot be treated as proof of facts reported therein
It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported
The accused should have therefore pro 709 duced the persons in whose presence the seizure of the stolen money from the house of appellant No 2 at Mangalore had been effected or examined the press correspondents in proof of the truth of the contents of the news items appearing in the newspapers
There was nothing on record to substantiate the facts reported in the newspapers showing recovery of the stolen amount from the residence of the appellant No 2 at Mangalore
There was therefore no reason to discard the testimony of PW 50 Deviarigamani Inspector of Police Crimes and the seizure witnesses which established that the amount in question had been actually recovered at Madras on the 29th and the 30th as alleged
735D H 736D E The evidence did not clearly indicate the exact manner in which the murder had been committed
The appellant No 1 had not taken any weapon for assaulting the deceased but had used two stitchers lying in the Bank premises indicating that the murder was not pre planned
Looking to the nature of the weapon used it seemed that the accused acted under a momentary impulse
In the circumstances the Court directed that the sentence of death passed on appellant No 1 be converted into one of life imprisonment
Subject to this modification the appeal failed and was dismissed and the judgment and sentences passed by the Additional Sessions Judge affirmed by the High Court in appeal were upheld being appropriate
737C E Earabhadrappa vs State of Karnataka   Reg vs Hodge  referred to