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TMI Blog1969 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Mr. Sinha for the defendant does not contest either the content or the amounts and figures plead ed in the plaint. 4. The only question for decision now in this suit is to determine the point whether electricity is within the meaning of goods used in Clause 4(iv) of the First Schedule of the City Civil Court Act, 1953. In other words, the main contention is that it is the City Civil Court only which has jurisdiction to try this suit and not the Original Side of this High Court. Clause 4 (iv) of the First Schedule of the City Civil Court Act, inter alia, reads as follows:-- Subject to entry 1 and entry 2, suits and proceedings exceeding five thousand rupees in value.- ***arising out of transactions of merchants and traders relating to the buying or the selling of goods or relating to the construction of mercantile documents. 5. It may be recorded here that by a written agreement dated 30-7-57 the plaintiff agreed to supply and the defendant agreed to take electrical energy to be used by the defendant in the defendant's colliery at Kajoragram in the district of Burdwan. The overriding consideration in this agreement is that it is a purely commercial transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on provides expressly that unless the context otherwise requires ''goods includes all materials, com- modities and articles. The definition appears to be wide enough. Electricity, it is contended, comes within materials or commodities or articles. Even if it did not, the separate mention in items 53 and 54 of List 2 cannot by itself justify a conclusion that the Constitution of India intended to draw any distinction between electricity and goods. Even if it did, that was for allocating taxes and not for drawing a distinction between electricity and goods . 10. But Mr. Sinha is on a stronger wicket when he relies on Pollock and Mulia's Commentary on the Indian Sale of Goods Act, 3rd Edition, page 13 where the following pasage occurs:-- It is doubtful whether the Act is applicable to such things as gas, water and electricity. In other words, the learned commentators on the Sale of Goods Act were expressing doubts how far gas, electricity and water could be called goods under that Act. In support of this view Mr. Sinha relies on the observations of the Division Bench of this Court in Rash Behari Shaw v. Emperor where the Court observed: In our opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sale of Goods Act do. Both of them, as shown, are wide enough to include electricity within the meaning of the expression goods . The Transfer of Property Act does not define goods or the movable property. But section 3(36) of the General Clauses Act defines movable property to mean property of every description except im-moveable property. That again is a kind of residuary definition within which electricity can certainly come as movable property. 13. The Supreme Court in State of Madras v. M/s. Gannon Dunkerley and Co. (Madras) Ltd.. AIR 1958 SC 580 , discussed at page 567 the question of sale and exchange of property for a price. It was not concerned in that decision with the point of meaning to be given to the word goods . 14. The other decision of the Supreme Court is K. L. Johar Co. v. Deputy Commercial Tax Officer, . At p. 1089 , the learned Judge observed as follows:-- The matter came up again before this Court in Gannon Dunkerley's case and it was held that the expression 'sale of goods' was at the time when the Govt. of India Act was enacted, a term of well-recognised import in the general law relating to the sale of goods and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial decisions in India which say that electricity is goods. The first decision to notice is Naini Tal Hotel v. Naini Tal Municipality. . The Division Bench of the Allahabad High Court at p. 505 observed as follows in that case:-- The remaining objection that electric energy is not 'goods' within the meaning of Article 52 requires more consideration. It may be noted first of all that in the Allahabad case, cited in AIR 1938 Lah 338, no such objection appears to have been taken and it was assumed that the article applied to electric energy as much as to any other commodity. The word 'goods' is not defined in the Limitation Act, but according to the definition in the Indian Sale of Goods Act, the word means every kind of movable property other than actionable claims and money. Electric energy is bought and sold like any other commodity and there can therefore be no doubt that it is 'property'. Is it movable? There does not appear to have been authoritative pronouncement on this point, though doubt has been expressed as to the extent to which gas and electricity are goods for the purpose of the English Sale of Goods Act. It was distinctly held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall continue to have jurisdiction and the limit was that it must be over ₹ 5,000 and not below and if below then it would go to City Civil Court. This interpretation is more consistent with the language of the Act and the intention expressed there. For any other view would lead to this absurd result which I can foresee that a commercial suit for sale of batteries claiming, say, a sum of ₹ 6,000 could be filed in the High Court, but the same suit for the same amount of money for supply of electrical current which would be producec by joining the terminals of these batter ies, would not lie here in the Original Side of this Court. That would be the plain result of accepting Mr. Sinha's submission. Mr. Goho criticised this by saying, and I shall quote his words, that battery is goods but when you join the terminal producing electricity, it is no longer goods? 22. When jurisdiction of a Court relates to such general expressions transactions of merchants and traders , buying and selling of goods , as in Clause 4(iv) of the First Schedule of the City Civil Court Act, It is essential that no artificially technical and narrow interpretation should be adopted to cut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity at the business of Colliery of the defendant. All these questions which Mr. Sinha has raised on this agreement involve the construction, interpretation and meaning of words and clauses of the mercantile documents. Therefore this suit also comes within the jurisdiction of this High Court under the meaning of the expression, construction of mercantile documents used in clause 4(iv) of the First Schedule of the City Civil Court Act. 24. In conclusion I will refer to two English authorities. In the Thirteenth Edition of Chalmers' Sale of Goods, 1893 at page 183 there is an observation on which Mr. Sinha has naturally relied and that observation is in these terms:-- Gas, water, electricity may be the subjects of larceny, but it is doubtful to what extent they are 'goods' for the purposes of this Act. Now this comment does not advance Mr. Sinha's case any further. We have already noticed this view before. Except expressing doubt it does not go beyond to determine the point. We have noticed the English decisions also on this point. But what is necessary to notice is that the scheme of the definition of 'goods' in the English Sale of Goods Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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