Shamji Bhanji And Co. vs North Western Rly. Co. on 21 December, 1945
5. The decision relied upon by the trial court in Shamji Bhanji and Co v. North Western Railway Co, A, I. R, 1947 Bom. 169 was rightly distinguished by the learned appellate Judge and I am of opinion that on the facts of the present Case that decision cannot apply. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Section 19 of the Act provides that, where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. The learned District Judge has pointed out that, treating this contract as being one in respect of unascertained goods, the goods have been sufficiently ascertained and (unconditionally appropriated to the contract by the very act of consignment and delivery to the carrier. Learned counsel for the appellants relied upon Section 39 Clause (2) of the Act. Section 39(1) reads as follows ; "Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer."