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TMI Blog1971 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... e copy of which is annexure 'A'. Annexure 'B' is the order issued by the District Magistrate, Koraput, on 6th August, 1965, to the petitioner appointing him as a retailer for sale of Government rice. A similar order was issued for sale of wheat. The petitioner's stand is that he was an agent of the Government in the matter of distribution and supply of the controlled commodities, wheat and rice, which were in short supply. He takes the alternative plea that even assuming that he was not an agent and the title to the goods passed to him, yet the transfer of the goods by him to the consumers did not constitute a sale as there was no agreement between him and the consumers for sale of goods. 2.. To appreciate the contentions raised in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Lift the quota every week regularly so that the consumers may not face any difficulty with regard to non-supply of rice in the retail centre. If such a contingency arises, the deposit of the retailer will be forfeited in addition to other actions liable for. (vi) Sell rice to the consumers at the rates per quintal and Kg. as mentioned therein. A consumer should not be issued more than 4 Kgs. of rice in a single calendar day for the consumption of his family. (vii) Deposit the cost of rice and lift the stock when the stock of rice comes to not less than 5 quintals of balance. (viii) Open the shop at reasonable times, that is from 7 A.M. to 12 noon and from 3 P.M. to 7 P.M. In case he wants to close his shop for unavoidable circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, transport to retail centres, wherever necessary, and make safe storage therein of the delivered stock. After depositing the value of the stocks into the treasury he, on production of the treasury challan, shall receive issue order from the Collector and take delivery of the stocks from the depot. Clause 4 provides for inspection by the Collector or the Controller of Supplies, of the delivered stock. Clause 5 fixes the remuneration for all services rendered by the retailer under the agreement. He shall be allowed commission at the rates as per Schedule I to the agreement which he will appropriate from out of the sale proceeds of stock sold by him. By clause 6 he is to furnish a security deposit of Rs. 100 in cash or in Government s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the order of his appointment as a retailer. Thus in the transaction between the Government and the petitioner, the latter became the owner of the controlled goods. After purchase, if the goods were destroyed, the petitioner would bear the loss. 5.. The second question for consideration is whether there was relationship of seller and buyer between the petitioner and the consumers who purchased the controlled articles from him. Mr. Rath places strong reliance on M/s. New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar[1963] 14 S.T.C. 316 (S.C.); A.I.R. 1963 S.C. 1207. and M/s. Chittar Mal Narain Das v. Commissioner of Sales Tax[1970] 26 S.T.C. 344 (S.C.); A.I.R. 1970 S.C. 2000, in support of the contention that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the goods transferred from the seller to the buyer; and (iv) a price in money paid or promised. The aforesaid Supreme Court decisions conclude this question. 8. In this case, there is no dispute that the 1st, 3rd and 4th elements are satisfied. The petitioner and the consumers who are parties to the transaction are competent to contract. The property in the controlled goods passed to the consumers and they acquired title to the goods on payment of price in cash. The controversy thus centres round the second element as to whether there was mutuality or mutual assent between the petitioner and the consumers while effecting the transaction. 9.. In this matter no hard and fast rule can be laid down. The ultimate conclusion would dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. State of Andhra Pradesh[1968] 21 S.T.C. 212 (S.C.); A.I.R. 1968 S.C. 599. and State of Rajasthan v. Karam Chand Thappar and Brothers (Coal Sales) Ltd., Jaipur[1969] 23 S.T.C. 210 (S.C.); A.I.R. 1969 S.C. 343., that the transactions constituted sales. The present case is analogous to Andhra Sugars Ltd. v. State of Andhra Pradesh(4) and State of Rajasthan v. Karam Chand Thappar and Brothers (Coal Sales) Ltd., Jaipur[1969] 23 S.T.C. 210 (S.C.); A.I.R. 1969 S.C. 343. 10.. We would proceed now to examine the various features in this case evidencing the scope for exercise of volition between the contracting parties in the transactions. Those features are: (i) The consumers were not compellable to buy the controlled commodities from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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