9911796707
TMI Blog1961 (2) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... d in it by the statute, eliminating all subsisting private rights. There can, in such a case, be no estoppel against the Government of India qua the holders of the pucca delivery orders, for the Government of India is not stepping into the shoes of the mills but is acquiring title which is paramount in nature. In consequence rule 75A(3) would apply and the property in the goods passed to the Government of India on September 30, 1946. The appeal of the Union of India therefore is allowed and a declaration is granted that the goods were validly requisitioned and acquired and that the orders of requisition and notices of acquisition were valid and binding on the respective defendants, and the goods specified therein vested in the Government of India on September 30, 1946. - 314-316 AND 778 OF 1957 - - - Dated:- 17-2-1961 - P.B. GAJENDRAGADKAR K.N. WANCHOO AND K.C. DAS GUPTA, JJ. S. Chowdhury, B. Das, P.K. Ray Chaudhury, S.M. Bose, B. Sen, B.N. Ghosh, P.K. Choudhury, M.C. Setalvad, R. Ganapathy Iyer and D. Gupta for the Appellant. S.N. Mukherjee, N.C. Chatterjee, P.K. Chatterjee for the Respondent. JUDGMENT Wanchoo, J . These four appeals on certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Central Government at the beginning of the day on which the notice was served upon them free from any mortgage, pledge, lien or other similar encumbrance. The notices of acquisition were accompanied by Schedules similar to the Schedules accompanying the requisition orders. This notice of acquisition was also served on the same day on all the managing agents. Further, on the same day the Deputy Director of Supplies, Government of India, wrote to the Secretary, Indian Jute Mills Association, that shipping instructions would be issued in due course by the Director of Supplies, Calcutta, with respect to hessian requisitioned and acquired under the orders and notices already referred to. The Government then tried to take possession of the hessian requisitioned and acquired but the mills and the holders of delivery orders resisted the Government's attempt on the ground that the orders of requisition and acquisition were invalid. The Government of India then filed the suit out of which the present appeals have arisen on December 11, 1946, for enforcing the orders of requisition and acquisition and also applied for a receiver to be appointed. This application was resisted and it bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation would have, to be arrived at in accordance with the market price of hessian prevailing on the date on which the suit was filed, i.e. , December 11, 1946. The main questions which arose for determination in the trial court, were four namely-(1).Were the alleged orders of requisition dated 1 September, 30, 19461, mentioned in the plaint, properly and/or validly and/or, duly, served? (2) Did such alleged orders effect any, valid requisition of the goods, mentioned in the Schedules to such orders? (3) Were the orders and notices of acquisition mentioned in the plaint properly made or given and/or duty served? (4) .Is there, any custom of trade, practice or usage that upon delivery orders being made, over to the buyers against payment the property in the goods represented by such delivery orders passed to such buyers ? Sarkar J., who tried the suit on the original side of the High Court, held that the orders of requisition were properly and validly made. He further held that there was no service of the orders on the mills which were in possession of the hessian and which had to be served in order to effect a valid requisition. He therefore held that as there was no proper or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B) of the Rules did not apply to the case, there was no service of notices of acquisition on the owners as required by rule 75A(2) of the Rules ; therefore it held that the acquisition was not valid. In the result the appeal was partly allowed as to the effect of the requisition orders but the view of Sarkar J. was upheld as to the effect of notices of acquisition. This has been followed by four appeals on certificates granted by the High Court. Appeals Nos. 314 to 316 are by the defendants in the suit challenging the view of the appeal court that the orders of requisition were valid and binding. The appellants in these appeals will hereinafter be referred to as the defendants. Appeal No. 778 is by the Union of India challenging the view of the appeal court that the notices of acquisition were not properly served and, therefore, there was no acquisition of property on September 30, 1946, as provided by rule 75A (3). We shall first deal with the three appeals by the defendants relating to the requisition orders. It is necessary to set out rules 75A and 119 of the rules in this connection, for the validity of the requisition orders depends upon whether the two rules have been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affecting an individual person (not being a corporation or firm) serve or cause the order to, be served on that person ( i ) personally, by delivering or tendering to him the order, or ( ii ) by post, or ( iii ) where the person cannot be found, by leaving an authentic copy of the order with some adult male member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain. (I-A) Where any of these Rules empowers an authority, officer or person to take action by notified order, the provisions of sub-rule (1) shall not apply in relation to such order, (I-B) If in the course of any judicial proceeding, a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with sub-rule (1), or, in a case to which sub-rule (I-A) applies, the notification of the order, shall be conclusive proof that he was so informed; but a failure to comply with sub-rule (1)- ( i ) shall not preclude proof by other means that he had information of the order; and ( ii ) shall not affect the validity of the order." The scheme of rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. This is also clear from the definition of the word "requisition " in rule 2(11) of the Rules, for "requisition" means in relation to any property, to take possession of the property or to require the property to be placed at the disposal of the requisitioning authority. Therefore, a requisition of property can be effected either by taking possession of the property or by requiring the property to be placed at the disposal of the requisitioning authority. In the present case we are concerned with the second mode of requisition. In such a case it is necessary that the party which is required to place the goods in question at the disposal of the requisitioning authority should be informed of the order of requisition, so that it may place the property at the disposal of the requisitioning authority as required by the order. Three questions therefore, immediately arise in this connection, namely, ( i ) who were the proper persons on whom orders of requisition should have been served, ( ii ) what is the manner in which the orders should have been served, and ( iii ) whether proper persons have been served in the proper manner in this case. So far as an order of requisition is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one reads the schedule attached to each order sent to the managing agents, it becomes immediately clear that the order was intended for the mills mentioned in the schedule and was being served on the managing agents of the mills. As an instance, we may refer to one requisition order addressed to Messrs. Thomas Duff and Co. Ltd. In the schedule it was clearly stated that the order was with respect to jute bales held by the jute mills under the managing agency of the addressee and the names of the jute mills with respect to which the order was passed and was being communicated to the managing agents were also mentioned, that is, Titaghur, Victoria, Samnaggur (South) and Samnaggur (North) Jute Mills. Anyone receiving this order should be therefore able immediately to understand that the order was served on Messrs. Thomas Duff and Co. Ltd. as the managing agents of the four jute mills mentioned above. The defect therefore in the form of address was in our opinion of no consequence. The order read as a whole along with the schedule leaves no doubt that the order was meant for the jute mills mentioned in the schedule and was addressed to Messrs. Thomas Duff and Co. Ltd. as the managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uman being and that Order XXIX, rule 2, does not contemplate service on one corporation for the purpose of securing service on another corporation. In this connection reliance is placed on rules 1 and 3 of Order XXIX, where it is urged that the same words occur and it is clear that these rules contemplate that the other principal officer mentioned therein must be a human being. This contention was urged before the appeal court and was rejected by it-and in our opinion, rightly. It is true that under rules 1 and 3 the principal officer envisaged must be a human being, but that conclusion follows from the setting in which these words appear in these two rules. Rule 1 relates to the signature and verification of a pleading by the secretary, director or other principal officer of the corporation while rule 3 provides that a court may require the personal appearance of the secretary or of any director or other principal officer of the corporation. It is obvious, therefore, from the setting in which the words " other principal officer" appear in these two rules that he must be a human being, for signature and verification in one case and personal appearance in another can only be by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1946) notice of the decision to acquire the requisitioned goods was served on the same managing agents. Here again in the heading of the notice only the name of the managing agent was mentioned without specifying in so many words that the communication was being addressed to the managing agency corporation concerned as managing agents of such and such mills. But it is not in dispute that as in the case of orders of requisition so in the case of notices of acquisition there was a schedule attached and that schedule mentioned that acquisition was of goods held by the jute mills under the managing agency of the corporation to which the notice was addressed and the names of the mills whose managing agents the addressed corporation was, were also mentioned in the schedule. It is clear, therefore, that the notice of the decision to acquire was given to the various managing agents of the various mills in their capacity as managing agents of the mills specified in the schedule and the question is whether the notice was in accordance with rule 75A (2). Rule 75A(2) provides that after the property has been requisitioned the Government may acquire it by serving on the owner thereof a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-India Jute Mills Co.'s case [1910] ILR 38 Cal. 127 , these pucca delivery orders are passed from hand to hand by endorsement and are sold and dealt with in the market as absolutely representing the goods to which they relate. The question therefore that arises is whether the property in the goods represented by the pucca delivery orders can be said to have passed to the holders thereof, when they receive them. The contention on behalf of the Union of India is that property in the goods cannot pass in law to the holders of the pucca delivery orders till the goods are actually appropriated to the particular order ; therefore, as in this case, it is not in dispute that no goods were actually appropriated towards the pucca delivery orders concerned, the property in the goods did not pass to the holders thereof but was still in the mills. Reliance in this connection is placed on section 18 of the Indian Sale of Goods Act, No. III of 1930. That section lays down that "where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained ". In the present case, as we have already said it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the delivery order. That case was not dealing with the question of title at all as was made, clear by Jenkins C.J. but was merely concerned with estoppel. In the present case the question whether the Government of India will be estopped is a matter which we shall consider later; but so far as the question of title is concerned, there can be no doubt in view of section 18 of the Sale of Goods Act that title in these cases had not passed to the holders of the pucca delivery orders on September 30 1946, for the goods were not ascertained till then, whatever may be the position of the holders of the pucca delivery orders in a suit between them and the mills to enforce them. The next question then is whether the Government of India is also estopped from challenging that the title passed to the holders of the pucca delivery orders as soon as they got the delivery orders. Sarkar J. seems to have taken the view that as the Government of India was claiming under the mills and had stepped into the place of the mills by acquisition and was claiming ownership through the mills it would also be estopped from denying the title of the holders of pucca delivery orders in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of India. Further as in law the property had not passed to the holders of the pucca delivery orders in the circumstances of this case, it was not necessary to serve them with notices under rule 75A (2) , for in law the owners were the mills and it was sufficient if notices were served on them. We may incidentally make it clear that the decision in the case of Anglo-India Jute Mills Co. s case ( supra ) would still be good law in an appropriate case where the question of estoppel can rightly arise. In view of the foregoing discussion, the conclusion at which we arrive is that on September 30, 1946, the mills were in law the owners of the property which had been requisitioned and with respect to which notices of acquisition were given on the same day. Therefore, the notice required under rule 75A (2) had to be given only to the mills. The question then which arises is whether due notice was given to the mills under rule 75A(2). The appeal court held that strict compliance with the provisions of the rule by which such transfer of ownership can be effected was necessary. It further held that as notices were not addressed in so many words to the managing agents as managin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess, where the suit is against a corporation, the summons may be served... " It will be seen that rule 2 of Order XXIX of the Code of Civil Procedure is subject to any statutory provision regulating service of process and where there is any specific statutory provision rule 2 would not be applicable. The only other statutory provision is in section 148 ibid. But that provision, as the words themselves show, is merely an enabling provision and it nowhere lays down that the method mentioned in section 148 is the only method of serving all documents on a company. The section lays down that a document may be served on a company by leaving it or sending it by post at the registered office of the company. But the language shows that that is not the only provision, nor is it imperative that service can be effected in the way mentioned in that section, and in no other way. If that were the intention this section of the Companies Act would have been very differently worded. We, therefore, find that there is one enabling provision in section 148 of the Companies Act as to the manner in which documents may be served on a company or a corporation. Order XXIX, rule 2, lays down another m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
