Patna High Court
Union Of India (Uoi) vs Dwarkadas Radhakrishna on 29 January, 1958
Equivalent citations: AIR1959PAT39, 1958(6)BLJR504, AIR 1959 PATNA 39, ILR 37 PAT 468
JUDGMENT N.L. Untwalia, J.
1. This is an appeal by the defendant against the judgment and decree, dated 17-1-1950, passed by the Additional Subordinate Judge of Dumka at Camp Sahebganj in Money Suit No. 11/30 of 1947/48, brought by the plaintiff-respondent, a registered partnership firm having its principal place of business at Sahebganj in the district of Santhal Parganas.
2. The defendant in the action, the Dominion of India (now the Union of India) was the owner of the East Indian Railway, whose Divisional Superintendent, Dinapore, required 12,000 maunds of mustard oil. The Government of Bihar allotted the said quantity to be supplied to the defendant from the mill of the plaintiff at Sahebganj. It appears that by a subsequent arrangement between the parties the said quantity was agreed to be supplied on a monthly quota basis of 1000 maunds. The plaintiff's case in the plaint was that the main terms of agreement on which the plaintiff had to supply mustard oil to the defendant was: (a) the sale of mustard oil would be at the rate of Rs. 46/8/- per maund, the then controlled rate, (b) the cost of tin containers would be at the rate of Rs. 2/- each (made of black sheet with a capacity of 17 1/2 see(s) and (c) the Divisional Superintendent, Dinapore, would take the supply of mustard oil on the basis of monthly quota of 1000 maunds.
3. It appears that the allotment was made in August. 1944. and the terms were agreed upon between the plaintiff on the one hand and the defendant acting through the Divisional Superintendent, Dinapore, on the other, in September, 1944. The payment was to be made through the Regional Grain Supply Officer, Region No. 4, Monghyr. The monthly quotas for September and October were supplied and paid for at the agreed rate. But, before the 2000 maunds of November and December quota were actually taken delivery of by the defendant, the Government of Bihar by a notification No. 28319-Oil-51/44 PC in Bihar Gazette extraordinary bearing the date 11-12-1944, fixed the price of mustard oil at Rs. 40 per maund and that of tin container at Re. 1/- each.
The plaintiff submitted his bill for the 2000 maunds at the old controlled rate of Rs. 46/8/- per maund for the oil and Rs. 2/- each for the tin container, but, in view of the said notification of the Bihar Government, the Regional Grain Supply Officer refused to counter-sign the bill for payment and the plaintiff was obliged to accept payment at the new controlled rate. According to the case of the plaintiff the 2000 maunds of mustard oil had been appropriated to the contract of sale of the defendant before the coming into force of the said Government Notification and the properties in the goods stood transferred to the buyer, namely the defendant, before the new controlled rate became effective.
The plaintiff accordingly made a claim for Rs. 13,000, the balance of price of 2000 maunds of mustard oil at the rate ot Rs. 6/8/- per maund being the difference between the old controlled rate and the new controlled rate as also a sum of Rs. 4574 being the balance of price of 4574 tin containers at the rate of Re. 1/- each being the difference in price of the old and the new rates fixed by the Government of Bihar. The plaintiff also claimed interest at the rate of Re. 1 per cent per month on the said amount of Rs. 17,574 from January, 1945 to the 5-7-1947, on the basis of the claim made in the notice under Section 80, Civil Procedure Code. The amount of interest claimed in the plaint was Rs. 5301/7/9. Thus, the total claim of the plaintiff in the suit under the three heads amounted to Rs. 22,875/7/9.
4. The defence set up by the Dominion of India was that the suit was not maintainable for want of legal and valid notice as required under Section 80 of the Civil Procedure Code. The contract for the supply of 12000 maunds of mustard oil was admitted, but, as regards the terms of agreement, reference was made to letter Nos. OP/116, dated 16-9-1944, It was stated that the supply was to be made at the controlled rate which might be fixed from time to time according to Bihar Government notification, admitting that in September, 1944, the controlled rate of mustard oil was Rs. 46/8/- per maund and the rate of tin containers was Rs. 2/-each, but the defendant stated that it remained so till 8-12-1944, only.
The soldering and other incidental charges were fixed at -/12/- per maund F. O. R. Sahebganj. The supply of 2000 maunds of September and October quota was admitted and it was stated that price at the rate of Rs. 46/8/- per maund for oil, Rs. 2/-for each tin container and -/12/- per maund for soldering and other incidental charges were paid to the plaintiff by the defendant in full satisfaction of the plaintiff's bill. But, as regards the supply of November and December quota, the stand taken by the defendant was that the supply was actually made between 21-12-1944 to 31-12-1944 as per permits issued by the Regional Grain Supply Officer and, therefore, the notification dated 9-12-1944, having been issued before that date, the plaintiff was paid the price of the 2000 maunds of oil and the containers at the new controlled rate and the plaintiff was paid in part, last being on or about 30-1-1945, a sum of Rs. 1074 as full payment of the 2000 maunds supply.
The plaintiff having accepted the payment without any objection had no right to make and claim on the basis of the old rate. The defendant denied the allegation of the plaintiff of the property in the goods having passed to the defendant before the new notification of the Government of Bihar, The claim of the plaintiff for interest was also refuted by the defendant in their written statement.
5. The learned Subordinate Judge framed several issues and came to the following decision; (1) that the defendant had not attacked the suit on the ground of maintainability and that it was maintainable, (2) that the notice under Section 80 of the Civil Procedure Code was proper and valid, (3) that the supply of mustard oil in the sense of its sale was not dependent upon the issue of permits by the Regional Grain Supply Officer, (4) the property in the goods and in the tin containers stood transferred to the defendant before the Government notification of 9-12-1944; (5) that the notification dated 9-12-1944, did not have any force whatsoever till it was re-published in the Bihar Gazette in June, 1945, and that the plaintiff received the last slab of Rs. 1074 under a mistake which cannot act as a bar of estoppel to the plaintiffs action. The suit of the plaintiff was decreed in full including the amount of interest also.
6. Mr. P. K. Bose, learned Advocate appearing for the appellant has argued the following points in support of the appeal -- (1) that the notification dated 9-12-1944, was published in the Bihar Gazette, extraordinary, of 11-12-1944, and, therefore, the new controlled rate was effective on and from the latter date and not from June, 1945, as held by the learned Subordinate Judge, (2) the plaintiff having accepted the money in full payment at the new controlled rate was estopped from claiming at the old controlled rate, (3) that the goods were not appropriated to the contract before the new notification came into force and the property in the goods was not transferred to the defendant before 11-12-1944. According to the appellant the property in the goods passed when the goods were actually delivered between 21st December to 31st December 1944, (4) that the plaintiff was not entitled to any interest, (5) that notice under Section 80, Civil Procedure Code, was bad and not according to law and (6) that in view of Section 175(3) of the Government of India Act, 1935, the suit was not maintainable against the defendant.
7. Mr. Lal Narayan Sinha, the learned Advocate appearing for the plaintiff-respondent, has not seriously controverted the first point of the appellant, namely, that the notification dated 9-12-1944, was effective on and from 11-12-1944, He submitted that the goods were appropriated to the contract and the property in the goods was transferred to the defendant before 11-12-1944, and, therefore, even if the new controlled rate came into force from that date, the plaintiff was entitled to a decree as awarded by the learned Subordinate Judge. Ho further submitted that the plaintiff had accepted the payment at the new controlled rate either under protest or under a mistake and was not estopped from claiming the balance of price. He also tried to support the claim of the plaintiff on account of interest on one ground or the other to be discussed hereafter. He also argued that the question that the suit was not maintainable against the defendant on the ground of Section 175(3) of the Government of India Act could not be allowed to be urged in appeal as there was no such defence in the case.
8. I shall first dispose of the first point very briefly as, in my judgment, it is not necessary to discuss this point in detail in this case. It seems that under Rule 119 of the Defence of India Rules, as it stood amended before December, 1944, publishing the notification in the Bihar Gazette, was sufficient compliance of the" said rule vide Mahadeo Prasad Jayaswal v. Emperor, AIR 1946 Pat 1 (FB) (A). I need not discuss the other cases on the point in detail as, the parties have argued this case on the assumption, that the new controlled rate of Rs. 40/- per maund of mustard oil and Re. 1/- each for the tin container came into force on and from 11-12-1944.
9. I shall now take up the most important point involved in this case, namely, whether the 2000 maunds of mustard oil for November and December quota were appropriated to the contract before 11-12-1944, and whether the property in them stood transferred to the defendants before this: elate. In order to decide this point it will be necessary to make reference to the relevant documents exhibited in the case as also to some portions of the oral evidence.
10. The agreement of sale of mustard oil giving rise to the dispute in question seems to have originated by an order of allotment of export and consumption of oil within the Province (Ext. B/8) where by 12000 maunds of mustard oil were allotted to be supplied to the East Indian Railway, Dinapore Division, from the plaintiff's mill at Sahebganj. The said allotment and revised distribution programme of mustard oil seems to have been forwarded by the Additional Under Secretary, Government of Bihar, with his letter dated 25-8-1944, to the various persons concerned. The said letter is Ext. B on the record. When and how out of the 12000 maunds, 1000 maunds were fixed to be supplied per month is not very clear but the parties are agreed that a monthly quota of this quantity was fixed to be supplied. The important terms of agreement, on which the plaintiff agreed to sell and the defendant agreed to buy the quantity in question would appear from the letter dated 16-9-1944 (Ext. B/1) written by the plaintiff to the Divisional Superintendent, Dinapore, in reply to the latter's letter (Ext.4/S) making enquiry about the terms. It would appear that Ext. 4/S (letter dated 15-9-1944) was taken to the plaintiff by an employee of the Railway and the important terms of settlement were noted in the letter, Ext. B/1. It will be of use to quote practically the whole of the letter, which reads as follows:
"Reference above kindly note that the sale of mustard oil from our Oil Mill is subject to the following terms and conditions.
(1) Oil will be supplied at controlled rate. The present controlled rate of mustard oil is Rs. 46/8/-(Rs. Forty six and annas eight) per maund, Ex. Mill. (2) New containers made of black sheet (capacity 17 1/2 seers) at Rs. 2/- (Rs. two) per container. (3) Soldering, cartage, loading and. other incidental charges at -/12/- (annas twelve) per maund Extra for delivery F. O. R. Sahibganj.
Our responsibility will cease as soon as we deliver the goods on weighment to your representative. The payment should always be made through the Regional Grain Supply Officer, Region No. 4, Monghvr, on receipt of the delivery permit from him, the delivery of oil would be arranged."
11. It would appear from the letter dated the 24th September, 1944 (Ext. B-9) written by the Regional Grain Supply Officer to the Divisional Superintendent, Dinapore, in reply to the latter's letter No. FSO/7/44' dated the 19th September, 1944, that the mill should store the oil in tanks to enable the Divisional Superintendent to make a proper analysis of that oil and that the oil should be delivered at the Railway Station in sound containers to avoid leakage or wastage during cartage from the mill. A copy of Ext. B/9 was also handed over to the plaintiff.
The plaintiff wrote a letter, dated the 25th September, 1944, to the Divisional Superintendent, which is Ext. B/2 on the record. The plaintiff stat-
ed therein that it was agreeable to despatch the mustard oil of the defendant's quota in sound containers of black sheet F.O.R. Sahebganj provided the latter was agreeable to give the handling charges for the same. The responsibility of weighment up to the Railway Station was undertaken by the plaintiff according to this letter.
It was further stated in this letter that the railway receipt would be sent to the Divisional Superintendent through the Imperial Bank of India, it so desired, otherwise the payment would be made before despatch of oil. The parties are agreed that on a subsequent date the requirement of making a proper analysis before despatch or delivery was given a go-by for practical difficulties. The plaintiff called from the defendant the letter dated the 19th September, 1944, written by the Divisional Superintendent to the Regional Grain Supply Officer, in reply to which Ext. B/9 was written.
The defendant replied that the original of the said letter was or might be in possession of the Regional Grain Supply Officer, but the defendant did not take care or choose to file the office copy maintained in the office of the Divisional Superintendent at Dinapore. The office copy of the said letter was desired to be produced even here in this court by the plaintiff respondent and the appellant's learned Advocate was directed by the Court to produce the same, but he could not do so, though the hearing of the case lasted for more than two days.
12. After about a week of writing the letter dated the 25th September. 1944 (Ext. B/2), the plaintiff is said to have written a long letter dated the 3rd October, 1944, to the Divisional Superintendent, Dinapore. In the absence of the original, the office copy of the said letter maintained in the office of the plaintiff has been marked as Ext. 4/B in the case. This letter has been attacked by the learned Advocate for the appellant firstly as not genuine and secondly that it contains many more terms which were not to be found in the previous letters --Exts. B/1 and B/2.
Some of the terms mentioned in Ext. 4/B are at variance with the original terms as evidenced by the previous two letters and some of the terms are in addition to them. It is neither in the pleadings nor in evidence as to whether the defendant ever agreed to these terms either by way of modification of the original terms or in addition to them and, therefore, the stand of the appellant was that even if this letter was genuine, it was not binding on the defendant.
The length and the language of the letter (Ext.
4/B) created some doubt in my mind as to whether such a letter could have been written by the plaintiff on the 3rd October, 1944, the date on which it purports to have been written. There does not seem to be on record materials and facts to justify the writing of such a long letter stating, reiterating and clarifying the various alleged terms of agreement between the parties.
Mr. Lal Narayan Sinha submitted that complaints were made against the plaintiff to the Regional Grain Supply Officer through the Divisional Superintendent, Dinapore, and this necessitated the writing of the long letter and the stand taken in the same. According to him, the letter dated the 19th September, 1944, if produced, would have shown the various disputes and the justification for the writing of the letter (Ext. 4/B). Speaking for myself, I did not feel quite satisfied about the genuineness of the letter dated the 3rd October, 1944.
But, due to the various facts and circumstances disclosed in the conduct of this case in the court below as also the materials on record, it is very difficult to hold that this letter (Ext. 4/B) was not written by the plaintiff to the Divisional Superintendent on the 3rd October, 1944, as it purports to have been written. Briefly speaking the facts and circumstances are as hereinafter mentioned.
13. The plaintiff filed a petition on 13-7-49 in the court below calling for the originals of the eight letters mentioned in the petition, copies of which were filed by the plaintiff, Item No. 1 was a letter dated the 3rd October, 1944. Item No. 2 was a letter dated the 4th December, 1944, and Item No. 5 was a letter dated the 30th January, 1945. Items Nos. 3 and 4 were letters dated the 25th December, and 29th December, 1944, and items Nos. 6, 7 and 8 were letters, copies of which are Exts. 4/1, 4/C and 4/D on record and about which there is no dispute between the parties as will appear from Exts. 4/N and B/14. In reply to this petition, a petition was filed on behalf of the defendant on the 7th September, 1949, the last paragraph of which is as follows :
"That out of eight (8) letters called for, the defendants beg to file items Nos. 3 and 4 bearing No. OP 77 of 23-12-44 and OP 79 dated 29-12-44. The rest of the letters could not be traced and so the defendants are unable to file them in court".
14. It will thus be seen that out of eight items of letters only items Nos. 3 and 4 were filed and about the rest, without any distinction as to whether some of them had been received or not by the office of the Divisional Superintendent, it was stated that they were not traceable, though, as stated above, items Nos. 6, 7 and 8 were admittedly received in the office of the Divisional Superintendent. Of course, the learned Advocate for the appellant has similarly attacked the other two letters, items Nos. 2 and 5 respectively, dated the 4th December, 1944, and 30th January, 1945, as being not genuine.
I shall deal with them hereafter but suffice it at the moment to say that the defendant in his petition in reply did not deny the receipt of these letters. In that view of the matter the plaintiff was not called upon to prove the despatch or delivery of the three letters in question to the Divisional Superintendent, Dinapore, Kamta Prasad (D.W. 1), Chief Food Inspector of the East Indian Railway, did not say a word about the non-receipt of these letters in his examination in Chief. In cross examination, however, he stated as follows :
"The plaintiff had not written us on 4-12-44 that the Nov. and Dec. quota was ready. I do not remember of the different letters received and issued by my office. As a Food Inspector, I have to deal with hundreds of letters every clay. It is not a fact that we have purposely withheld certain letters ......We never received Ext. 4/B. It is not a fact that for ulterior reasons I deny it."
It is difficult to believe the evidence of this witness in view of his admission in the latter part of his cross examination that a receipt and despatch register was maintained in the office of the Divisional Superintendent, though he tried to modify the statement that only important letters are entered in that register. Be that as it may, the letters in question were surely important letters and must have found place in the receipt register, if received. Therefore, adverse inference must be drawn against the defendant for non-production of the said register in the circumstances of this case.
15. Another circumstance which is worthy of note is that a copy of this letter is said to have been sent to the Regional Grain Supply Officer. The said copy as also the receipt register showing the receipt of the said copy was called for from the office of the Regional Grain Supply Officer and the same were produced and believed by the court be-
low. In that view of the matter also it is, difficult to hold that the letter dated the 3rd October, 1944, (Ext. 4/B) was not written to and received by the Divisional Superintendent, Dinapore.
But, it is important to note that this letter, Ext. 4/B, is not referred to in the plaint nor is there any pleading or evidence to the effect that the Divisional Superintendent, Dinapore, ever agreed to the various terms contained in that letter either by way of modification of the original terms or in addition to them. Therefore, even if that letter was written to and was received by the Divisional Superintendent, yet all the terms and statements contained in that letter cannot be of much use in deciding the point at issue. I would, therefore, proceed to discuss the question posed above, without reference to this letter, Ext. 4/B.
16. It would appear from the letter dated the 18th November, 1944 (Ext. B/3) written by the Divisional Superintendent to the plaintiff that his Market Supervisor Mr. Raghubar Prasad (D.W. 2) was directed to take delivery of 1000 maunds of mustard oil from the plaintiff's mill for October quota. The plaintiff was further asked to fill 1000 maunds of mustard oil in its containers for November quota and to inform the Divisional Superintendent when the stock was teady to enable him to check the quality to arrange for taking delivery of the same.
The evidence of D.W. 2 would show that he took delivery of 500 maunds of the October quota between 28-11-44 and 30-11-44 and the remaining 500 maunds of that quota were taken delivery of on the 5th and 6th December, 1944. His evidence is that he went to Sahebgani on 4-12-44 for taking delivery of the balance of the October quota.
17. The plaintiff set apart 2000 maunds of November and December quota and filled them in tin containers from the tank on the 4th December, 1944, and accordingly informed the Divisional Superintendent by its letter of that date which is exhibit 4/L in the case. This is one of the letters which are attacked as not genuine and not having been received in the office of the Divisional Superintendent, as mentioned above. For the reasons stated above as also for the additional reasons to be stated hereafter I hold that this letter was written and sent by the plaintiff to the Divisional Superintendent on the 4th December, 1944, and must be presumed to have been received by him unless the contrary is shown. The letter dated the 4th December (exhibit 4/L) reads as follows:
"Formerly containers also are arranged for you. And as told to your man your Nov. and also Dec.
quota of oil are ready and this time they have already been filled in tins from the tanks. Please take delivery soon."
18. The letter (exhibit 4/L) seems to have crossed the letter dated the 6th December, 1944, (exhibit B/6) written by the Divisional Superintendent to the Regional Grain Supply Officer, a copy of which Was forwarded to the plaintiff with the following note:
"Copy to Messrs. Dwarka Dass Radha Krishna. Sahibganj for information. They will please fill 2000 mds. of mustard oil in their containers being November and December/44 quota and advise this office when the stock is ready to enable the undersigned to arrange to take delivery of the same early. The delivery will be taken in new tins supplied by them."
19. The plaintiff, on receipt of the copy of the letter dated the 6th December, 1944 (exhibit B/6) wrote a letter dated the 11th December, 1944 (Ext. 4/E) to the Divisional Superintendent and it will be of use to quote that letter also, which runs as follows:
"This is for your land information that we have "already" kept in stock mustard oil against your quota. Please arrange to take delivery at once. This may be treated as most urgent for a huge quantity, with huge capital, is involved."
The genuineness and the receipt of this letter is not challenged by the appellant. I have underlined (in ' ') the word ' already' in the quotation above in order to show that the statement contained in this letter supports the statements contained in the previous letter dated the 4th December (exhibit 4/L) quoted above. The statement in the letter dated the 4th December, 1944, is further supported by the evidence of D. W. 2 to the effect that he was present at Sahebganj on this date in connection with taking delivery of the balance of 500 maunds of the October quota. In view of this as also in view of the evidence of P. W. 5, Gauri Shankar Choudhary, the Assistant Manager of the plaintiffs firm, I would hold that the plaintiff had set apart and earmarked on the 4th December, 1944, the 2000 maunds of mustard oil of November and December quota for delivery to the defendant.
It will be further noticed that the plaintiff unconditionally appropriated the goods to the contract of the defendant and for delivery to the Divisional Superintendent with his assent. The assent of the Divisional Superintendent would be gathered from the letter dated the 18th November, 1944 (Ext. B/3) so far the November quota is concerned. It was argued on behalf of the appellant that the plaintiff was asked to fill 1000 maunds in containers in order to enable the Divisional Superintendent to check the quality and, therefore, that was not unconditional previous assent to the appropriation of the goods to the contract. I have stated above that for practical reasons, the parties are agreed, that they had given up the question of checking the quality.
This fact would further find support from the quotation given above from the letter dated the 6th December, 1944 (Ext. B/6) wherein the question of checking is not to be found. The assent will also be presumed in view of the fact of the admitted information given to the defendant by the letter dated the 11th December, 1944 (exhibit 4/E) in reply to the letter dated the 6th December, 1944 (exhibit B/6). The statements made in the letter dated the 11th December, 1944, or the facts stated therein were never refuted by the Divisional Superintendent. I would, therefore, hold that the appropriation of the goods in question to the contract by the plaintiff on the 4th December, 1944, was with the assent of the Divisional Superintendent.
20. Mr. Bose argued on the basis of exhibits B/1 and B/2 that the plaintiff was to deliver the goods F. O. R. Sahebganj on weighment at the Sahebganj Railway Station; till then the responsibility was of the plaintiff. Therefore, in view of the provisions of Section 22 of the Indian Sale of Goods Act, 1930, he argued that the property in the goods did not pass to the defendant unless the goods were brought to the Railway Station and were weighed there. Section 22 of "the Sale of Goods Act reads as follows:
"Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof."
It will be noticed that Section 22 has no application to the facts of this case. In this case it is the admitted position and rightly that there was no contract for the sale of specific goods in a deliverable state. Here, the contract was of unascertained or future goods by description. Section 22 covers a case where the contract for the sale is of specific goods, as for example, the whole quantity in bulk or in heap and the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price. In such a case the property does not pass until such act or thing is done and the buyer has notice thereof.
This section corresponds to Section 18, Rule 3 of the English Sale of Goods Act. The English cases having a bearing on the point under the said section and the said rule of the English Act are referred to and discussed at pages 307 to 312 of Benjamin on Sale, 8th Edition. In my opinion, therefore, Section 22 is not applicable to this case. The section applicable to this case is the next one, i. e., Section 23 of the Indian Sale of Goods Act, which corresponds to Section 18, Rule 5 of the English Act. Section 23 of the Indian Sale of Goods Act reads 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."
It will be seen that what is required under Section 23, Sub-section (1) to pass the property in the goods to the buyer is an - unconditional appropriation of the goods to the contract either by the seller with the assent of the buyer or by the buyer with the assent of the seller; such assent may be express or implied or may be given either before or after the appropriation is made. Where the buyer is to select out of bulk belonging to the seller, there is little scope for any controversy as to the point at which the property in the goods passed to the buyer. Little difficulty is experienced in finding oat the point of passing of the property to the buyer when the assent of the seller is express and is given after the appropriation is made.
Cases where the assent of the seller is express or implied but is given before the appropriation is made, create difficulties in the decision of the point at which the property passes to the buyer. But, in this particular case, as stated above, the assent of the buyer, namely, the defendant's officer, the Divisional Superintendent, has been found to have been given by necessary implication after the appropriation. In that view of the matter I would hold that the property in the goods passed on to the buyer on the 4th December, 1944, or, in any event, before the 11th December, 1944, when the new notification was published in the Binar Gazette.
21. Mr. Bosc referred to the case of Hoekim Seing v. Maung Ba Chit, AIR 1935 P. C. 182 (B). In this case it was held:
"It is, therefore, clear that the intention of the parties is the decisive factor in determining the issue; and, if that intention is expressed in the contract itself, no difficulty arises. But where the contract contains no such express provision, the intention has to be gathered from the conduct of the parties and the circumstances of the case."
Referring to Section 22 of the Indian Sale of Goods Act, the High Court of Rangoon had taken the view that the paddy in question, which was in bulk having not been measured before the attachment, the property did not pass to the buyer. Reversing the decision of the High Court their Lordships of the Judicial Committee of the Privy Council held:
"The measurement, if any was to be made by the buyer in order to satisfy himself that he had got' the quantity he had bargained for, and that the price paid by him was really due to each of the sellers. Such measurement did not affect the transfer of the property in the goods...... The passing; of the property did not depend upon the measurement; and neither the attachments nor the order of adjudication would adversely affect the title which had vested in him."
It would, therefore, appear from his decision that even if Section 22 applied to the facts of the case, which, as stated above, is not the section applicable in the. present case, weighment to be made by the seller at the Railway Station was only for the purpose of the satisfaction of the buyer and not with an intention to transfer the property in the goods from the seller to the buyer.
22. The other case relied upon by the learned Counsel was the case of Sadasook Kothari v. Chait-ram Rambilas, AIR 1926 Cal 218 (C). In that case, upon a construction of the contract in question, it was held that the property in the goods did not pass until actually delivered at the destination. But, in the present case, the course of conduct between the parties shows that the defendant had not stuck to the condition of taking delivery at the Railway station, even if such a. condition was there. Therefore, in the facts and circumstances of the instant case it must be held that the property passed to the buyer when the goods were separated from the bulk by the plaintiff and were earmarked for the defendant with the assent of the Divisional Superintendent.
23. Reference was made to the case of Han-son v. Meyer. 102 E. rULE 1425 CD). This is just the case which supports the view which I have taken above of Section 22 of the Indian Sale of Goods Act and, therefore, is of no help to the appellant.
24. Mr. Lal Narayan Sinha referred to two cases, namely, M. Siddique and Co. v. Rangiah Chettiar, AIR 1948 Mad 122 (E) and Emperor v. Kunverji Kavasji, AIR 1941 Bom 106 (F). In the former case the seller by their letter of 6-7-1943 informed the buyer that the bales sold to him were ready and asked him to take delivery. The argument on behalf of the seller was that it amounted to appropriation of specific goods to the contract and this argument was accepted. It was further held that on the buyer's sending the reply on 7-7-1943 informing the seller that arrangement could be made to take delivery of the bales by the end of the month or early next month, amounted to acceptance of the appropriation made by the seller Therefore, it was held that the property in the goods passed to the buyer and there was a concluded sale. The point which fell for decision in that case more or less, was in the similar circumstances as in the present case and the view taken in that case supports the view I have expressed in this case. In the Bombay case it was held:
"I find the greatest difficulty in holding that a contract to sell some liquor out of a big cask containing much larger quantity, the required quantity not being separated or bottled would be a contract of sale of specific goods within the meaning of Section 21.
The expression 'specific goods' necessarily means goods capable of being ascertained with certainty -- certum est quod certum reddi potest. A sale of some specified quantity of liquor out of a storehouse or cask would not be capable of ascertainment until it was removed or separated, The words 'specific goods' would according to their natural interpretation mean, goods whose' delivery can be demanded in specie. Consequently, in my opinion Section 21 would be inapplicable. The appropriate section applicable to the facts alleged in this case would be Section 23, Sale of Goods Act."
Later on, on the interpretation of Section 23, Sub-section (1) of the Sale of Goods Act it was held in that case that the property in the goods had passed on to the buyer on appropriation of the goods by the seller with the assent of the buyer which can be express or implied. Of course, that was a criminal case and the point fell to be decided in order to determine whether the sale was complete within the place of the licence of the accused, yet the principle decided in that case is, no doubt, helpful in the present case also.
25. I, therefore, hold that the property in the goods passed on to the defendant before 11-12-1944, and sale was complete. In that view of the matter prima facie the plaintiff-seller was entitled to claim and get the price at the old controlled rate of Rs. 46/8/- per maund for the mustard oil and Rs. 2 each for the tin containers.
26. Mr. Bose wanted to raise a new point when he was called upon to reply to the argument advanced on behalf of the respondent that since in this case the railway receipts were sent through the Bank and price was realised by that method, it should he held that the property in the goods did not pass to the defendant unless payment was made to the Bank, which, of course, was later than 11-12-1944. Be that as it may, the Court did not allow him to raise this new point in reply firstly on the ground that no such plea was taken in the written statement and secondly, on the ground that the appellant in his opening address did not take up this point. I may, however, observe that in a case of this nature also it is not the invariable rule that the property in the goods passes to the buyer only when the price is paid by the buyer to the Bank.
27. The next point which was taken on behalf of the appellant was that the plaintiff realised Rs. 30,000 through a demand draft (exhibit D) date:l 23-12-1944, Rs. 15,000 through a demand draft (exhibit D/1) dated 28-12-1944, and Rs. 40,000 through a demand draft (exhibit D/2) dated the 2nd January, 1945. The balance of Rs. 1074 was realised by the plaintiff through a demand draft dated 31-1-1945 (exhibit D/3). Exhibit D/3 reads as follows :
"On demand pay to the Imperial Bank of India, Patna, or order the sum of Rupees One Thousand Seventy-four only for value received against R/R on 'full payment' for 2000 maunds of M. oil."
I have underlined the words "full payment" in the above quotation (here in ' ') in order to appreciate the point argued by Mr. Bose. His argument was that the plaintiff having accepted the last slab of Rs. 1074 in full payment of the price of the 2000 maunds of mustard oil including the price of the tin containers and the handling charges, it was not open to claim any further sum on account of the same. The argument was sought to be met on behalf of the respondent by referring to the letter dated 30-1-1945 (exhibit 4/J) which reads as follows :
"We beg to inform you that we are now forwarding to you a Demand Draft for RS. 1074 regarding supply of November and December quota at Rs. 40 for oil and Re. 1 for tins. Please note that this amount is drawn for the present according to Government order and this is only in part payment towards the cost at Rs. 46/8 for oil and at Rs. 2 for tins to which we are entitled. We will approach the Government again to change the order but we also request you that you better pay us the actual amount according to the rate of Rs. 46/8 and Rs. 2 yourself or we will charge interest also from November at the market rate of Re. 1 per cent. p.m. as agreed."
28. While dealing with the questions of the genuineness of and whether some of the despatched letters were received by the Divisional Superintendent or not, I made reference to this letter also. Considering the reply of the defendant in the petition aforesaid, and the evidence on behalf of the defendant in court, it would have been difficult to hold that such a letter was not written by the plaintiff to the Divisional Superintendent and was not sent to or received by him. But, there are other materials on record which throw a considerable doubt on the genuineness of this letter. This letter is also not referred to in the plaint.
It was proved by the Assistant Manager of the plaintiff's firm (P. W. 5) on being recalled in the witness box after cross-examination had been finished on behalf of the defendant. Of course, he, on recall, not only proved this letter but also the other letters discussed above. His evidence, however, in his examination in chief was that in the demand draft dated 30-1-1945, the clerk had committed two mistakes, one of them being the statement of full payment and he discovered this mistake much later, when he was called in the Calcutta Office of the defendant's Law Officer. The clerk of the plaintiff, who is said to have committed this mistake was examined as P. W. 6 in the case. His evidence in his examination in chief in court was as follows :
"I retyped and took this Ext. D/3. I typed 'full payment' in it as I was consulting Ext. 5 K at the moment. I discovered this mistake in 1947 when Gouri Babu informed me after his return from Calcutta. They took me to task and chided me. I resigned my service thereupon."
His further evidence in cross-examination was :
"Prior to 1947 this mistake was not discovered to my knowledge."
It would, therefore, appear that if exhibit 4/J was written on 30-1-1945, as it purports to have been written, it is inconsistent with the evidence of mistake and its discovery some time in 1947. I am, therefore not prepared to believe that exhibit 4/J was written on 30-1-1945, as it purports to have been done. But the question still remains as to whether the plaintiff in view of the statement in exhibit D/3, is debarred from claiming the balance of the price which it was entitled to. In my opinion, the words "full payment" in the demand draft were made by the clerk of the plaintiff either under a bona fide mistake or under the impression that the plaintiff was entitled to charge at the new controlled rate.
Neither there is any evidence nor is there any other material to hold that the clerk had the necessary authority to give a valid discharge of the liability of the defendant for the balance of the price, if any. It may be that the clerk thought that the plaintiff was entitled to the new rate. That would not take away the legal right of the plaintiff to claim at the old controlled rate, if in fact and in law the plaintiff is found entitled to the same. I would refer in this connection to another letter dated 1-3-1947, written by the plaintiff's pleader to the Divisional Superintendent (exhibit 4/1). In this letter it was stated that the lesser amount had been accepted by the plaintiff firm under protest. The receipt of this letter was acknowledged by the Divisional Superintendent by his letter dated 10-3-1947 (exhibit 4/N). Neither in Exhibit 4/N nor in any subsequent letter the statement of the plaintiff having accepted the lesser amount under protest, was refuted. I would, therefore, hold that the plaintiff had not agreed to accept the lesser amount in full satisfaction of his claim of price of 2000 maunds of mustard oil and the price of 4574 tin containers. In that view of the matter I hold that there is no question of any estoppel in this case and the plaintiff's suit cannot be held to be not maintainable on that account.
29. As regards the plaintiff's claim of interest at the rate of 1 per cent, per month from January, 1945, to 5-7-1947. amounting to Rs. 5301/ 7/9, it was submitted on behalf of the appellant that there was no agreement to pay any interest and, therefore, the plaintiff was not entitled to any interest prior to the date of the suit. It was argued on behalf of the respondent that the plaintiff was entitled to claim interest as per condition No. 11 mentioned in Ext. 4/B, the letter dated 3-10-1944, or under the Interest Act as per claim made in the letter dated 30-1-1945 (Ext. 4/J) or at least from 1-3-1947, as claimed in the letter of that date (Ext. 4/1).
The interest claimed in the plaint was on the basis of the claim made in Section 80, Civil Procedure Code notice, which is dated 28-4-1947 (Ext. 15). The learned Subordinate Judge has allowed interest to the plaintiff because of condition No. 11, in Ext. 4/B as also upon the evidence of P. W. 6 I have already held above that the new condition of Ext. 4/B was not consented to on behalf of the defendant and, therefore, I hold that the plaintiff is not entitled to any interest on the alleged agreement between the parties. I hold that there was no such agreement.
The evidence of P.W. 6 was to the effect: "The prevailing market rate of interest over payment not made (in) cash is 1 p.c. p.m. "No such market usage was pleaded in the plaint nor is the evidence sufficient to hold that there was any such market usage to pay interest if payments were not made in cash. Then remains the only question whether the plaintiff is entitled to interest under the Interest Act on the basis of the claim made in the letter dated 30-1-1945, the letter dated 1-3-1947, and the notice under Section 80 of the Civil Procedure Code, dated 28-4-1947.
So far the letter dated 30-1-1945, is concerned, I have held above that this letter does not seem to have been written on the date on which it purports to have been Written. Secondly to grant interest on the basis of a claim made in writing in certain letters, under the Interest Act, is discretionary. Thirdly, in my opinion, the provisions of Interest Act, strictly speaking, are not attracted to the facts and circumstances of this case. I may refer in this connection to the case of Thawardas Pherumal v. Union of India, AIR 1955 SC 468 (G) wherein referring to the Interest Act it was held as follows :
"....the following among other conditions must be fulfilled before interest can be awarded under the Act :
(1) there must be a debt or a sum certain;
(2) it must be payable at a certain time or otherwise;
(3) these debts or sums must be payable by virtue of some written contract at a certain time; (4) there must have been a demand in writing stating that interest will be demanded from the date of the demand."
In the instant case all these conditions are not fulfilled. The plaintiff realised the amount at the new controlled rate through the bank and for the balance it cannot be said that conditions Nos. 2 and 3 were applicable. I am, therefore, of the opinion that the plaintiff is not entitled to claim any interest in this case before the date of institution of the suit.
30. As regards the point of the validity of the notice under Section 80, Civil Procedure Code, I would refer to Ext. 15. the notice and Ext. 6, the reply sent on behalf of the Government of India, Railway Department (Railway Board), dated 14-5-1947, under the signature of some one for Secretary of the Railway Board. The notice (Ext. 15) was addressed to the Governor-General of India in Council, New Delhi. The point is directly covered by the cases of Firm Mulchand Loknath v. The Union of India, 1954 BLJR 373 (H) and Buridehing Tea Co. Ltd. v. Dominion of India, (S) AIR 1955 Cal 360 (I). Both these cases were recently followed by a Bench of this Court in First Appeal No. 219 of 1939, D/- 3-12-1957 (J), I, therefore, hold that, the notice under Section 80, Civil Procedure Code, I was valid and was properly served.
31. Mr. Eose on the basis of a decision in the csse of Dominion of India v. Bhikraj Jaipuria, 1957 Pat LR 198 : ((S) AIR 1957 Pat 586) (K) wanted to raise a new point in this appeal that the contract having not been entered into in accordance with section 175 (3) of the Government of India Act. 1935, the plaintiffs suit against the Dominion or India was not maintainable. It may be noticed that in that case a defence had been taken in the written statement that the Divisional Superintendent, who had entered into the contract in question in that case, had no authority to enter into that contract I find that the point was not raised in any manner whatsoever in the written statement of this case nor was any argument advanced in the court below on this question.
The point has not been taken in the memorandum of appeal in this Court. In that view of the matter and in view of the decision of the Supreme Court in the case of Kalyanpur Lime Works v. State of Bihar, 1.954 SCR 958 : (AIR 1954 SC 165) (L), the Court did not permit Mr. Bose to raise this point for the first time in argument in this Court. The facts necessary for determination of this point were neither raised nor found. Therefore, the suit cannot be thrown out in this Court on the ground of the alleged non-observance of the provisions of section 175 (3) of the Government of India Act, 1935.
32. In the result, the appeal is allowed in part and the judgment and decree of the court below are modified to this extent that the plaintiff is held not entitled to the sum of Rs. 5301/7/9 or any amount by way of interest prior to the date of the suit. The judgment and decree of the court below in other respects are confirmed. In the circumstances of this case and in view of the result of the appeal, there will be no order as to costs of this Court in this appeal.
C.P. Sinha, J.
33. I agree.