292 CWP No 1911of2010 etce 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION 4AOll J1CWP No1911 of2010 Mls Parkash Rice Mill eeePetitioner Versus n StateofHaryanaand others r 0 0 P Noe3554of2010 I Mls Hanuman Rice MilI 8LAnother C5 eeePetitioners Versus Z The State of Haryanaand others C WPN05281 of2010 C Mls Inder SinghAjit Singh Z eeePetitioner 00 Versus m7 StateofHaryanaand others Z tl 1WP N05282 of2010 IVIJsGanpatiRice Overseas 4eemm eeePetitioner Versus State of Haryanaand others f 1 Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 293 4 CWP Noe 1911of2010etc 1 2 Mls AnnapurnaOverseas eeePetitioner Versus StateofHaryanaand others tCWP N05279 of 2010 Mls Jhandu Mal Tara Chand eeePetitioner Versus m 0 StateofHaryana and others 0 0 7CWP N05247 of2010 C J Mls HaryanaRice Lande OeePetitioner Z Versus Stateof Haryanaand others r C WP N05287 of2010 Z Mls Shivo Shiva Trading Company Ct1 OeePetitioner 2 Versus Z StateofHaryanaand others Qm 9CWP N052840f2010 Mls Siri Ganesh Rice and General Mill 4e eeePetitioner Versus StateofHaryana and others Noe268of2010 Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 294 C17 CWP Noe 1911of2010 etce 3 Mls Jai DurgaRice and General Mill eeePetitioner Versus The State ofHaryanaand others NoS2830f2010 MJs Hindustan Rice Mills eeePetitioner Versus Q The State ofHaryanaand others 0 Ca3 CWP N04917 of2010 C5 Mls Krishna Rice Si General Mills I eeePetitioner Z Versus 2 State ofHaryanaand others C eRespondents Z NIls Raj Shree Rice MilIs r11 eeePetitioner 2 Versus Z State ofHarvana and others tl 1114CWP No286 of2010 Mls Mahavir Rice General Mills C ePetitioner Versus State ofHaryana and others eCWP Noe5285of2010 Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 295 14 4 r CWP No 1911of2010 etce Mls Hanuman Rice Mills eeePetitioner Versus StateofHaryanaand others 6CWP NoA9370f2010 Mls A One Rice Unit 9eePetitioner Versus m 0 StateofHaryanaand others 0 0 C5 CORAM I Z HONBLE MRJUSTICE PERMOD KOHLI Q PRESENT MrTS Dhindsa Advocate MrOP GoyalSrAdvocate with MsimplejeetKaur Advocate C MIeR0harma DAG Hyana Z MHari Pal Venna Advocate 1 MrGirish AgnihotriSrAdvocate with OO Mrrvind Seth Advocate MrKS Dadwal Advocate V Z Permod Kohli J With similarityof facts and common issues havingbeen involved ln thesewrit petitionsthe same are beingdisposedofby this common order The petitioners in all these petitions are Millers engagedin custom 6 millingof the paddypursuantto entered into with the HaryanaState CooperativeSupplyand MarketingFederation Limited hereinafter referred to as the HAFED Even thoughthere are separate impugned notices ln all these petitions however the contents being Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 296 1 1Ae 5 CWP No 1911of2010 etce common facts are beingnoticedfrom CWP No191 l of2010 as State of Haryanaissued rice levy order called Rice Procurement Levy Order 1985 lereinafterreferredto as 1985 order This order has been issued under Section 30f the Essential Act 1955 with the objective of maintaining the supplyof rice and for securingits distributionand availabilityat fair prices Clause 10 of the aforesaid 1985 order empowersthe Governmentor the Director Food and Supplies to direct any rice miller to conven any stock or m paddylnto rlce held by the govemment or lts agency or the Food 0 0 of Indiaon suchterms andconditionsas may be by I theGovemment or the Director In terms ofthe aforesaid Clause ofthe 1985 C0 Orderthe State of Haryanadecided to engage variousrice mills in the State Z of Haryanafor Custom Millingof Rice commonlyknown as CMR A detailed were formulatedin this regardon 1992008 r issuedby the Director Food and SuppliesHaryanaUnder the 1985 Order I and the the miller is requiredto deliver the rice after Z custom milling to the FCI Allotment to the millers is to be made bythe 1 District Level Committee headedbythe DeputyDirectorand comprising of A7 Z DistrictManagerof procurementagenciesincludingthe Food Corporation llm ofIndia It also provides not to make any allotment to a defaulter rice miller Clause 5 6fl of the lolicy 64nnexurePw41providesfor execution of whereas Clause 09deals with the paymentof millingcharges C Forthe paddy season 20082009 the petitionernamelyMls Parkash Rice Shivpuri Road Karnal was entrustedwith 1439 MT tonns paddyfor millingA formal agreementenvisagedunder Clause 5 0 ofthe policyalso came to be executed on 269008 Condition 15 0 of the agreelnent t 1 Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 297 Ic 2 CWP No 1911of2010 etce 6 for deliveryof the rice after millingas per quality laid down bythe HAFED directlyto the FCI Condition 17 of theagreementdeals with the mode and manner of deliveryThe said conditionis reproduced as underl 17The of rice shall be deemedto have been bytheMillerlSecond Partyafter the stocksare loadedinto wagons or deIiveredinto the godowns as per directions of the ofOcial of the 1 First Partv aler necessary and 0 Ca approvalof the quantity111 accordance with the C5 procedure of the First Partyat the cost of the MillerlSecondParty It will be the responsibility of the Z MillerlSecondPartyto supply A note weightcheck memoand all other relevant documents to the concerned L agency after the deliveryofrice for claiming 10 payment from Food Corporation of India failingwhich Z he shaIl be liable to pay CCL rate of interest for the QO delayedperiod All the includinglabour 7 Z Ioading unloading and any other 0m etc incurred in connection with the delivery of ice within 8 Kms shall be borne by the MillerlSecond Party In case nce 1S delivered beyond8 Kms the incurred by the MillerlSecond 4e Patty on this account shall be regulatedas per instructions ofGovernment ofIndia 99 Even FCI has issued guidelinesdated 1792008 regardinginspection Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 298 1 CWP No 1911of2010 etce 7 sampleanalysislIl of the procurementof paddy and ofrice stock duringKharifMarketing Seasons200809 Perusalof this document reveals that proper procedure has been prescribed for ensuringthe qualityof the rice its supplyand storageetc The quality hasto be maintainedas perthe guidelines prescribed bythe Government of Indiaetc It is admittedcase of the partiesthat the petitioner delivered the milled rice to FCI upto the months 2009 It is alleged that at thetime of deliveryFCI Kamal carried out detailed analysis to 0 test the quality of the rice delivered by the 0 C40 The petitioner has placedon recordvarious 0 reports ln respectof the suppliesmade by the petitionerThese are I collectively marked as Annexure P7 with the writ petitionThe acceptance Z reportsindicate that the milled rice suppliedconforms to the prescribed as regards the qualityofthe rice supplied 0 I In the next paddyseason 200920 10 againthe partiesentered into same kind of arrangement as 111 the previousSeason 200809 The Z petitioner was entrusted with 4390 MT of paddyfor millingfor the seasOll 0 2009e10 After millingthe rice was to be delivered to FCI not later than V7 Z 3132010 for which followingschedule of deliverywas prescribed under 0 the agreementexecuted between the partiesfor this season as well Octoberand November 20091 20Ioofthe allotted paddy December 2009 25Io md0e eeae January2010 25Io do February2010 15Io March 2010 15Io 10 99 The milled rice was to be delivered to the FCI directlyin accordance Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 299 4 CWP No 1911f2010etCe 8 1 withthe contractualstipulation ln terms of the agreement dated 1 102009 Thepetitioner claims to have milled 184 MT of paddyfor the monthsof 2009 andwhen delivery was soughtto be made to FCI it retllsed to take the It is statedthat when the petitionermade the reason for refusal ofthe FCI to take deliver it enqUlrles received letter dated 101 12009 64nnexure91issued by the Pawan GuptaDepot Manager FCI Kamal wherebythe petitionerwas 1m that the rice stockedby it at DBllT Bajidahad been declared as Below RejectionLimit hereinafter referredto as BRL9 It 0 C WaS lrther counicated that as a pre condition the petitioner is required C5 to replacethe nce at its own costsas per directions of the higherauthority I for acceptingthe paddyfor the year 2009 10 A similar letter dated Z 27 112009 was received from the District ManagerHAFED Kamal Annexure P109askingthe petitioner to replacethe BRL stock of rice within the specificationsas per directions of the FCI The petitioner I C3 received yet another letter dated 4 122009 from the Assistant Food and Z Supplies Officer Karnal on the same lines advisingthe petitioner to replace 10 the BRL declared rice for the year 200809 to facilitate the deliveryof the 7 Z nce pertainingto the paddyseason 2009 10 The petitionermade a CL dated 21 122009 objectingto the demand of the FCI HAFED and Food and SuppliesDepartment with the pleathat the delivery of rice for the previousyear 2008 was as perthe agreementand quality mWe speciflcationsand norms Petitioner insisted for takingdeliveryof the nce for the season 200910 The petitioner has been served with the impugned notice dated 812010 Annexure II issuedby the Area Manageraskingit to replacethe substandardstocks with stock of applicable for Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 300 14 V CWP No 1911of2010 etce 9 season 2008m09within seven daysfailingwhich the Corporation reserves the rightto disposeof substandardrice stock delivered bythe petitioner at its risk and costs without further notice and without prejudice to the legal includingbanningthe business dealingand to the State Government for blackalistingThis letter Annexure Il was followed by another notice dated 1512010 issued by the HAFED Annexure P advisingthe petitioner to replaceBRL rice 64nnexureP Both these letters are subjectmatter of C in the presentpetitionThe petitioner submitteda detailed reply 0 C dated252010 64nnexure P131 to theFCI and HAFED 0 Challenge to these ordersis primarily on followinggroundsl i9The are not entitled to raise disputelll respectof the Z for the season 2008e09 at the time of deliveryof rice for the 4e season 200910 as both the transactionsare distinct and arise out different C agreements iilDelivery made duringthe season 200809 was duly acceptedas Z conforming to the prescribed and standards without any CO objection and thus no disputeregarding its qualityand speciflcations could Z be raised in the next season iiiITestsconducted allegedlyin respectof deliveryfor the year 200809 were at theback ofthe petitioner and without even informing the petitioner 0vIFreshinspection has been carried out after a periodof inore than six rnonths of the deliverywhen the rice supplied to the FCI was stacked and left out to the vagariesof weather 6v There has been violation of principlesof naturaljustice There are three sets of repliesflled by the The replies Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 301 4 V CWP No 1911of2010 etce 10 filed by the FCI and the HAFED do not disputethe facts stated by the Ravinder Malik District Food and SuppliesController Kamal hasstatedthat the miller was to deliver 67Io rice of the paddyduringthe 1eee crop year200809 after millingto the FCI within the stipulated period upto3132009 This deliverywas madeas per the termsand conditions of the agreementand milling of the petitionerhad been refunded by District ManagerHAFED However no has m the rice delivered bythe petitioneraftereightmonthsand refusedto 1 accept the furtherrice ofcropyear 200C10 vide letter dated 10 l l 009 0 0 In the replyfiled by noA and 56FCI9 their action is 9 soughtto be justifiedon the groundthat nce suppliedby the petitioner duringthe season 200809 was found to be substandard ie Below Z RejectionLimit againstthe Iaid down specification for the relevant year lt 1S further mentionedthat a super inspection was carried out by Shri Janak Raj AGM QC9 FCI Zonal Office North Noida and the analysisrepons I dated 23102009 to 2810009 lnnexures R511A Re511B e511Cl Z showsthat the stocks deliveredbythe petitioner were below the laid down 00 norms BRL and the petitioner was required to replacethe samefor am Z which sufficient opportunity was grantedto the petitionerIt is further Qm allegedthat merelybecause stocks were acceptedby the FCI petitioner cannot be absolved of its liability It lS stated that in fact petitioner succeeded in deliveringthe Below RejectionLimit stocks in connivance C with the officials ofthe CorporationIt is lrther mentioned that officials of CorporationnamelyShri KCGarg Area ManagerSR Dubey AGM QC SllTGaba Managerand RajeshChaudharyTechnical Assistant were placed under and chargeleetedSome ofthem have even been Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 302 e CWP Noe 1911of2010 etce ll relievedfrom service ofthe FCI According to no4 and 5 216 MT rice delivered bythe petitionerduring the periodfrom 1222009 to 53 009 was found to be Below RejectionLimit causingloss to the to the tune of RsA6A8 lacs It is mentioned that the petitioner was afforded an opportunityto replacethe substandard rice The were not onlyagainstthe petitionerbut also againstnumber of othermillers It is further mentioned that the offer of the Corporation was 1 acceptedby about 31 millers who replacedthe substandard nce supplied r duringthe season 200809 but the petitioner failed to do SO 0 C5 have also pleadedthat there 1S an arbitration clause beingClauseNo23 lll I 9 the agreemententered between the petitioner and respondent no6 which I lnter alia providesfor settlement of all disputesby referring to the sole Z arbitration of the Director Food and Supplies Director 2 of the Agencyor any person appointedby them in this behalf The r I have thus challenged the ofthe writ petition C The petitionerhas filed replicationreiterating its stand in the writ Z petitionThe additional fact stated in the replicationis that even as per C inspectionreporttheinfractionin the speci6cation is inequitableIt is vm Z further pleadedthat the allegedsuper inspectionwas carried out after a tl periodof more than SlX months and without any notice to the petitioneror associating it with such inspection I have heard learned counsel for the partiesat lengthand carefully ee gonethroughthe record During the pendencyof this petition some interim orders were passedaskingthe FCI to accept the stocks of rice for the season 20092010 and pay 50Io ofthe billingchargesDetailed interim order in this regardwas Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 303 9 e 7 12 CWP No 1911of2010 etce on April 9 2010 This order passedin CWP No91 1 of 2010 was extendedto all thewrit petitions Issuesinvolved in this petitionare two folds i supplyof rice for the season 200809 iilSupplyof custom millingof nce for the season 20092010 both the transactionswere under distinct and separate executed between the partiesgoverning the custom millingof m paddyfor conversion to rice in accordancewith the contractual stipulations r andthe Scheme formulatedunder the 1985 Order It is common case ofthe 0 C0 that all supplies were accepted bythe FCI from the petitioner for the I 0 season 200809without any objection in respectof qualityspecification quantitymode and manner of deliveryetc as prescribedunder the Z Not onlythat the rice was acceptedeven payments were made to the petitionerand their securitydepositreleased by the HAFED 0 obviousiywith the concurrence ofFCI Even FCI in its detailed counter did I not disputethe deliveryof rice and the release of paymentsand security Z without any objectionThe case projectedby the FCI lS that super m lnspectlOIlwas carried out by the officials of the FCI wherein the rice tm Z suppliedby the petitioner was found substandard ie Below Rejection tl Limit BRLI This inspection was carried out by the of6cials of the FCI after six months of the final supplyby the petitionerIt is pertinent to note that the supplyofthe rice was to be made in five phases between October to 4we MarchAt no stageduringthe periodof supplyspreading over six monthS any objectionwas raised regarding the qualityspecificationsof the rice suppliedIt was onlywhen the entire supplywas made and after release of payments and secuntyand after six months the super inspection was said to Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 304 1 13 CWP No 1911of2010 etcn be carried out No has been renderedby the FCI for not carryingout any lnspectionor duringthe six months of supply periodor immediately on of supply To the contrary the have placedon record the analysisreportin respectofthe quality ofthe deliveryofrice madebythem These analysis were also carriedout bythe FCI Apartfrom above the test said to be conductedby the FCI duringsuper inspection was carriedout at the back of the m It would have been more prudentto assoclate the petitioner Ct when duringsuper inspectionany deflciencywas noticed in the rice 0 0 bythe petitionerbut the FCI chose not to associate the petitioner I 49 the suppliers or even informthem It has also come on record that the I custom milledrice was lyingin the depotof the FCI The condition under Z which storage was made has not beenbrought on record Admiuedlyrice 1S a perishable item It needs to be keptunder prescribed condition for Ionger Q storage life If it is left to vagaries of weather it is open to perishNo such C material has been brought on record or even pleadedin the replyregarding Z the storageconditions of the rice suppliedby the petitionerduringthe OO season 200809 In any case the petitioners were notputto any notlce or V2 Z provided an opportunity of beingheard regarding the qualityspeciScation m before carrying out the test or even at the time the test was conducted This has resulted into serious violation ofthe principlesofnatural justiceNotice to the petitioner was givenonlywith regardto of the alleged 4eW substandardrice However at the time of determination whether the rice lS substandard or not no notice was ever issued to the petitionerThus action of the respondents in refusingdeliveryof rice for the season 200920 10 is not justifiableunder any ClrcumstanceS have referred to Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 305 1 14 CWPNo 1911of2010etce of the Honble SupremeCourt passedin the case of Tapan Kumar Sadhukhan VSeFood of lndia and others 199616 Court Cases 101 In this judgmentHonble Supreme Coun has the need for improvingpublich2alth While dealingwith the proviSlOIlSof Food Corporation of India Act 1964 it has been observed thatit is the obligationof the State or its agency to raise nutritionallevel and improvepublic health It has also been held that the State should not m ailow food grainsto reach market for human consumptlOn Q without the same so as to make it fit for human consumptlon 0 C While referringto this judgmenttt has been pleadedon behalf of C5 that substandardrice cannot be utilized bythe State for supply under the public distribution systemas it is injurious to publichealth I fail Z to how this judgment is relevant in so far as the interse dispute between the and is concerned State and its agencvs 0 obligation to providefood grainsOt for human to the needy persons who are dependent upon the State sponsoredpublicdistribution Z system cannot be disputedHowever the questionin the presentpetition lS C breach of mutual contractual obligationsbetween the partiesand a Z thereof This judgment does not helpthe in any manner exceptto obligatethem to supplyonlysuch food grainsas are Ot for humanconsumptionby upgradingthesubstandardfood grains have also pleadedagainstthe of the Wrlt 4 petition on two counts firstly that the Wrlt petition involves disputed questionsof fact and thus discretionaryremedyunder Article 226 of the Constitution of India is not available to the petitionersSecondly there 1S an arbitrationClause Nol3 in the contract agreement between the panies Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 306 J v CWP No 1911of2010 etc andthe onlyremedyavailableto the petitioner 1Sto invokethe remedyby Wayof arbitratiOlle It is true that the HighCourt while exercisingwrit jurisdiction under Article226 of the Constitution should be reluctant to entenaln a wrlt petitioninvoIving senous questions of fact However this is not a rule of law buta rule of discretion where the HighCourt exercises a self restriction to avoid to adjudicate upon disputedquestions of fact inexercise ofwritjurisdictionIn thepresentcase there does not seem to be Cl any senous questions of fact so as to decline the pleaof the 0 0 in the writ petitionWhat is soughtto be projectedas disputed I C of fact is the supplymade by the petitionerduringthe season 20082009 have pleadedthat the rice suppliedwas Z substandardwhereas the petitionershave pleadedthe same to be to the prescribed quality The supplyof rice its I quantltyetc 1S aIl admitted positionamongstthe partiesThe petitioners haveplacedon record analysis conducted bythe Food Corporation of India Z certi61ing the qualityspecifications prescribed under the agreementand the C10 norms laid down by the Govemment of India This fact 1Snot disputedIt vm Z has however been pleadedbythe that when a super inspection Clm was conducted after six months of the supply rice supplywas found to be substandard Such tests were not conducted in the presence ofthe petitioner or with their association Under these circumstances it cannot be said that e there are serious disputedquestionsof fact The petitionersare disputing the analysisthe test conducted by therespondents at their back whereas the are disputingearlier analysisconducted by their own officials certi64ng the qualityspeciflcations So what is beingdisputed is the actiOn Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 307 7 CWP Noe 1911of2010 etce 16 oftheirown bythe This Court is not calledupon to decide aboutthe question whether the rice suppliedbythe petitionerduring theseason 200809 is substandardor not Court is onlyconcerned with the breachof contractUal and the violation of the conditions Iaid downin theyear 1985 order which is statutoryin nature Thus the pleaof the not to interferein exerciseof writ jurisdiction deserves m The petitioners have relied upon a judgment of the Honble r Court passedin ABL Internation Ltde And another vse Export 0 0 GreditGuarantet Corporationof India Ltds Aiid ufhcrs 10d 3 SCG 0 553 whereinHonble Supreme Court has held that even where thereare questions of fact and there is no absolute bar for entertaining thc Z writpetitionjurisdiction under Article 226 of the Constitutionof Indiacan r beexercised Honble Supreme Court has even gone to the extent of saying I that if facts requireoral evidence can also be taken in exerciseaofwrit Where any break of contractual obligations arises out of Z violation of principlesof naturaljusticeor arbitran7action of Staterequires OO judicialscrutinv wnt jurisdiction can be exercised Relevant observations w2 Z are contained in paragraph8 of the aforesaid judgmentwhich are ll reproduced here underl As could be seen from thearguments addressedin this appealand asalso from the divergent viewsofthe two courts below one ofthe questions thatfalls for our considerationis whethera writ petition under Article 226 of the Constitutionof India is maintainableto enforce a contractualobligationof the State or its 4eee by an aggrievedpany In our opinionthis questionis no more res integraand is settled bv a largenumberofjudicialpronouncementsofthis Coun In KN Guruswamy Vs The Stateof Mysoreand others 1 1955 I SCR 3051this Court he1d1 The next question is whether the appellantcan complainof this by way of a writ In our opinionhe could have done so in an ordinary case The appellantis interested in these contracts and has a right under the laws of the State to receive the same Rawat Seema 2014.05.03 13: 49 Scanned True Copy of Original PHHC, Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 308 1 CWP No 1911of2010 etce 17 treatmentand be giventhe same chanceas anybody else We would therefore in the ordinary course have giventhe the writ he seeks But owingto the time which this matter has taken to reach us 6a consequence for which the appelant1S ln no wayto blame for he has done all he could to havean earlyhearing9thereis barelya fonnightof the contract left