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1 - 9 of 9 (0.42 seconds)Section 28 in The Sale Of Goods Act, 1930 [Entire Act]
The Sale Of Goods Act, 1930
The Commissioner Of Income-Tax, Madras vs Mysore Chromite Limited on 1 November, 1954
"It is submitted that being the position, the
property in the goods passed and the sales
were concluded outside British India, for the
weighment, sampling, assay and the final
fixation of the price could only take place
under all these contracts outside British
India. It is not necessary for us to express
any opinion on this extreme contention.
Suffice it to say, for the purposes of this
case, that in any event upon the terms of the
contracts in question and the course of
dealings between the parties the property in
the goods could not have passed to the buyer
earlier than the date when the bill of
exchange was accepted by the buyers bank in
London and the documents were delivered by the
assesse~ company's agent, the Eastern Bank
Ltd., London, to the buyers' bank. This
admittedly and as found by the Appellate
Tribunal, always took place in London. It
dust therefore follow that at the earliest the
property in the goods passed in London where
the bill of lading was handed over to the
buyers' bank against the acceptance of the
relative bill of exchange.'
It will be observed that the terms of the contract and the
course (-if dealings between the parties is not the same as
in this case because in that case the seller clearly
retained the property in the goods by having a bill of
lading issued in his own name and would only part with the
property after the bill of exchange was accepted by the
buyer's bank in London when the documents would be delivered
by him to the company's agent in London and that the
fixation of price was dependent on weighment and assay. In
the case before us the High Court relied on cls. (7) and
9(3) of the contract for its conclusions. In our view
nothing in those clauses justifies that conclusion. Under
cl. (7) where there is a total failure on the part of the
buyer to perform the contract, the
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seller has a right to cancel the contract or treat it as
cancelled and resort to the remedies thereunder. But that
is a condition where the buyer fails or refuses to perform
the contract altogether by not accepting the documents or in
not paying against the documents. Even under cl. (9) the
condition as to the quality and of excessive moisture is not
a condition of the transfer of property. The right of the
buyer thereunder is not a right to cancel the contract in
toto but only to adjust claims in respect of the quality or-
moisture for which a remedy has been provided thereunder.
There is nothing in the agreement which envisages the
property in the goods being in the seller even after the
value of the invoice had been paid by the bank under the
letter of credit in Pakistan. It may be further noticed
that the bills of lading railway receipts have to be, made
out to order and endorsed in blank. In all transactions of
sale of goods the time and place of appropriation are
important elements for determining when the property in the
goods passes. It is well settled that an appropriation
takes place where the goods are situate at the time of
appropriation and not where the contract of sale is made.
There may be an authority, given by one party to the other
to appropriate and that appropriation is presumed to be
finally made where by the terms of the contract the party so
authorised has determined his election by doing such act or
thing which cannot be done until the goods are appropriated.
Generally, subject to the limitations already discussed a
seller appropriates the goods by the delivery of the bill of
lading-the document giving control of the goods-in exchange
for payment of the price by which he that he does not intend
to retain the right of disposal of the property in the
goods.
Section 66 in Income Tax Rules, 1962 [Entire Act]
Section 18 in The Sale Of Goods Act, 1930 [Entire Act]
Section 32 in The Sale Of Goods Act, 1930 [Entire Act]
Section 39 in The Sale Of Goods Act, 1930 [Entire Act]
Keshavlal Brothers And Co. vs Divanchand And Co. on 27 February, 1923
The appropriation, of the goods to the contract by itself
would not be such as to pass the property in the goods if it
appears or can be inferred that there was no actual
intention to pass the property. But if however the seller's
dealing with the bill of lading is only to secure the
contract price not with the intention of withdrawing the
goods from the contract, and he does nothing inconsistent
with an intention to pass the property the property may
paseither forthwith subject to the seller's lien or
conditional on performance by the buyer of his part of the
contract. Kennedy L. J. in Biddell Brothers v. E. Clemens
Horst Company(1) dissenting with the majority stated the
principles for ascertaining in c.i.f. contract when the
property in the goods passes which was later confirmed in an
appeal against that judgment in E. Clemens Horst Company v.
Biddell Brothers (2 ) , the Lord Chancellor describing it as
"the remarkable judgment illuminating as it does, the. whole
field of controversy." In that case the seller was to ship a
cargo of hops was to contract for freight, had to effect
insurance and was, to receive 90 s. per 112 lbs. of hops.
The buyer had to pay cash. The contract did not say when
the price was to be paid. The buyer said that he is to pay
cash against physical delivery and acceptance of the goods
when they come to England. Under s. 28 of the Sale of Goods
Act the payment was to be against delivery. But when was
delivery of the goods which are on board ship said to take
place. The Earl Loreburn L. C. said:
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