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TMI Blog1946 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... site, delivery July 1943, payment cash against goods or railway receipt. There was trouble between the parties about the performance of this contract and on the 31st July, 1943, the parties met at Coimbatore and entered into a fresh agreement, Ex P-1 (a) the relevant portion of which provides that the defendant withdraws all complaints regarding quality and count which have been raised so far and agrees to accept and take immediate delivery of 150 bales of yarn of the same description as originally accepted without any objection as to quality and count or ticket. The bales are to be despatched from tomorrow from Pudukad (which is in Cochin State) to Cochin harbour or Wadibunder as the case may be; and it is mutually agreed that the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alers) Control Order, 1943, and secondly a contention that in any case the defendant is entitled to a rebate by reason of the subsequent fixing of the ceiling prices under the Cotton Cloth and Yarn (Control) Order, 1943, read along with the Cotton Cloth and Yarn (Contracts) Ordinance, 1944. It is common ground that although the plaintiff had a licence to deal in yarn issued by the Mysore Government and although the defendant had licences to deal in yarn issued by the Governments of Bombay and Calcutta, neither the plaintiff nor the defendant had a licence from the Government of Madras. The Madras Yarn (Dealers) Control Order 1943, in terms extends to the whole of the Province of Madras. It defines dealer as a person who sells or stores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter tube fulfilled, the contract is called an agreement to sell. The passage of the property in the goods is controlled by Section 23 of the Sale of Goods Act, which runs as follows: (1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit is based could not be made out. Clearly the burden lies upon the defendant to establish that the plaintiff's suit must fail because of the illegality of the transaction. 5. Having regard to the terms of Section 23(2) of the Act, it must, we think, be held that the sale would be completed by the delivery of the goods to the railway for the purpose of transmitting them to the buyer, provided that the seller did not reserve the right of disposal. Translating this into the terms of ordinary commerce, if the seller delivered the goods to the railway for conveyance to self at Calcutta, there would not be such an appropriation as would pass title to the purchaser. In order to complete the transaction it would be necessary to endors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le has taken place before the corning into force of the Cotton Cloth and Yarn (Control) Order, 1943, and delivery has taken place on or after the date of fixing the maximum price by an order under that provision. In such circumstances the buyer is entitled to the refund of any excess over the maximum price fixed under that order. Admittedly the fixing of the maximum price in the present case was after the date on which the sale is alleged to have been completed. This ordinance will therefore confer no benefit upon the defendant. 8. While therefore we do not agree with the grounds upon which the lower Court held the contract of sale not to be illegal and it seems to us clear that the mere fact that the plaintiff has a licence in Mysore co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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