9911796707
TMI Blog1985 (9) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles was made between the plaintiff and the defendants and as a result of the sale the title to the goods passed to the plaintiff as the contract was for the sale of specific goods in a deliverable state. According to the agreement between the parties, the payment of the price of the goods and the delivery thereof were postponed and it was also agreed that payment would be made in six instalments within 90 working days from the date of the receipt of the release order and the period of delay in lifting the materials due to reasons beyond the control of the plaintiff would be excluded. The plaintiff removed the entire quantity of 150 Metric Tonnes of M. S. Rounds of 37 dia from Jhalong Store Yard and he had also removed 200 Metric Tonnes out of 450 Metric Tonnes of M. S. Rounds of 28 dia from the Chapramari Store Yard. The plaintiff in spite of his best efforts could not remove the balance quantity of 250 M. T. of M. S. Rounds of 28 dia from Chapramari Store Yard due to circumstances beyond his control because of heavy breaches on the road due to rain, landslide and other causes. It was not possible for the plaintiff to obtain the necessary transport communication for the carriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The property in the goods as well as the possession of the same remained with the defendants till full value of the materials was deposited with the defendants. The plaintiff lifted 200 M. T. of M. S. Rounds of 28 dia and 150 M. T. of M. S. Rounds of 37 dia but the plaintiff did not take delivery of the remaining M. S. Rounds of 28 dia by paying the price. The plaintiff failed to fulfil his obligations in spite of extension of time. At the request of the plaintiff the original stipulated time was extended from time to time till March 31, 1971 but still the plaintiff could not fulfil his obligations. The contract was legally cancelled as he failed to lift the articles within March 31, 1971. The plaintiff was not entitled to declaration and permanent injunction prayed for. 4. The learned Subordinate Judge came to the conclusion that the goods in question were specific goods in a deliverable state and as such the property in the goods passed to the plaintiff when the contract was made. The learned Subordinate Judge further held that the contract was concluded and as the property passed to the plaintiff, he became the owner thereof. The learned Subordinate Judge has further h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 20 of the Sale of Goods Act would apply if there was a sale of specific goods in a deliverable state. It has been contended that the plaintiff has taken part delivery of the articles and the vendor has no right to repudiate the contract. Mr. Dutt submits that the learned Additional District Judge did not consider all the relevant materials in this respect in overruling the findings of the learned Subordinate Judge. The articles sold were identified and agreed upon at the time of the sale and the articles were also in a deliverable state. The vendor had nothing to do before delivery was taken by the vendee. The learned Additional District Judge came to an erroneous conclusion against the principles of law and as such the decision of the teamed Judge should be set aside and that of the learned Subordinate Judge shall be restored. 7. The learned Advocate for the respondent has contended that there was no contract for sale. There was only an agreement to sell on fulfilment of certain conditions. In the instant case, there was no sale of specific goods in a deliverable state and the learned appellate court was correct in holding that the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional District Judge has however disagreed with the decision of the learned Subordinate Judge that the provisions of Section 20 of the Sale of Goods Act. 1930 (hereinafter referred to as the Act) would apply in the present case. The learned Additional District Judge has held that the instant case is governed by Section 22 of the Act and the contract was an agreement to sell and the property in the goods did not pass to the plaintiff. 9. According to Section 2(3) of the Act, goods are said to be in a deliverable state when they are in such state that the buyer would under the contract be bound to take delivery of them. In Section 2(14) of the Act specific goods has been defined to be goods identified and agreed upon at the time a contract of sale is made. Section 4 of the Act deals with sale and agreement to sell. A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. A contract of sale may be absolute or conditional. Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. 10. The main controversy between the parties is whether the instant case comes under Section 20 of the Act as held by the learned Subordinate Judge or under Section 22 of the Act as held by the learned court of appeal below. The learned Advocate for the appellant has contended that the case will come under Section 20 of the Act as there was, sale of specific goods in a deliverable state and the seller had nothing to do before delivery was taken by the buyer. The learned Advocate for the respondent on the other hand has argued that the goods in question were sold subject to certain conditions the fulfilment of which must take place before the property in the goods would pass to the buyer and as such there was an agreement to sell. 11. According to Section 20 of the Act, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made. It is immaterial whether the time of payment of the price or the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch express provisions the intention has to be gathered from the conduct of the parties and the circumstances of the case. Another decision referred to by Mr. Dutt is reported in (1906) 3 Cal LJ 249 (Rash Behari Shaw v. Naritya Gopal Nundy). In this case there was a contract to deliver goods in two instalments and the plaintiff failed to tender for or take delivery of the first instalment although the market was in his favour but as regards the second instalment, the plaintiff made a lender which the defendant refused to recognise because of such failure. It was held by their Lordships that under the circumstances the conduct of the plaintiff had not amounted to a renunciation, to an absolute refusal to perform the contract, as such would amount to a rescission and thus the defendant could riot accept it as a reason for not performing his part. Mr. Dutt has also referred to the case of Simson v. Virayya, (1886) ILR 9 Mad 359. In this case, the defendant, who was the respondent, on 6th March 1903 promised to sell 5000 bags of gingelly seeds at ₹ 7-11 as a bag to the appellants. Two-thirds of the price was paid in advance. The respondents agreed to deliver the 5000 bags at the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. For any delay beyond three months a penalty of ₹ 100/- per week or part thereof would be imposed oh any quantity left over unlifted. The plaintiff's tender was accepted by Ext, 3 dt. May 4, 1970. The rate was fixed. The plaintiff was requested to complete the removal of the entire materials after depositing the value of each of these instalments by August 15, 1970. The plaintiff removed 150 Metric Tonnes from Jhalong Store Yard and he also removed 200 Metric Tonnes from Chapramari Store Yard. The plaintiff could not complete the removal within the stipulated time and he prayed for extension of time and the plaintiff was granted time till March 31, 1971 for the removal of the balance of the M. S. Rounds and he was told that no further extension would be entertained. By the letter (Ext. 1) dt. April 20, 1971 the defendant cancelled the sale order. It will appear from the evidence on record and the circumstances of the case that there was contract for sale of specific goods in a deliverable state. The defendant had nothing to do before delivery was taken by the plaintiff The measurement in accordance with the sectional weight chart of IISCO and TISCO contained in the no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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