- (1.) These 17 appeals have been filed against the similar judgments of the learned Additional District Judge No. 2, Sri Ganganagar dt/- Nov. 29, 1985 by which he has dismissed the appeals of the plaintiff-appellant and confirmed the judgments and decrees of the trial Court (Civil Judge, Sri Ganganagar in Appeals Nos. 63/86, 80/86 and 65/86 and Munsif, Sri Ganganagar in remaining appeals) dismissing the suits for damages. The facts of these cases are almost similar and law involved is same. As such these appeals are being disposed of by this common judgment.
(2.) On Sept. 6, 1979, the Ganganagar Sugar Mills Ltd. (plaintiff-appellant) circulated notice Ex. 1 that auction sale of the sugar would take place on Sept. 10, 1979 at 4 p.m. in the Mill, licenced traders dealing in sugar could only take part in it, immediately after the acceptance of the bids earnest money @ Rs. 30.00 per bag would have to be deposited, and sugar purchased would have to be lifted within the specified period. This auction notice was circulated to the licenced traders dealing in sugar and their signatures were taken on its back. The auction sale took place on Sept. 10, 1979. The defendants took part in it. They gave bids for the purchase of sugar @ Rs. 281.75 besides payment of Rs. 40.67 as excise duty, per quintal and deposited required earnest money. The number of bags purchased by the defendants in appeals Nos. 63/86, 77/86, 80/86, 81/86 and 65/86 were 400, 200, 250, 200 and 250 respectively and the defendants of the remaining appeals purchased 100 bags each. At the time of the auction sale, they were told to lift the sugar bags purchased by them during the period from Sept. 16 to 22, 1979. This period was extended by the Collector, Sri Ganganagar till Sept. 29, 1979. Earnest money was duly deposited at the rate of Rs. 30.00 per bag. On Sept. 12, 1979, the Government of India in the Ministry of Agriculture and Irrigation, Department of Food, New Delhi issued Sugar (Price Control), Order, 1979 (hereinafter referred to as Price Control Order) under S. 3, Essential Commodities Act, 1955, fixing the wholesale price of sugar @ Rs.268.00 per quintal, including basic excise duty, additional excise duty in lieu of sale-tax and other charges for Rajasthan with immediate effect. The defendants insisted upon the plaintiff to deliver the sugar @ Rs. 268.00 per quintal as fixed under the Price Control Order. The plaintiff repeatedly requested and also served notice Ex. 3 upon them for lifting the sugar after paying the price at the agreed rate of Rs. 281.75 + Rs. 40.67 as excise duty, per quintal and adjusting therefrom the amount of earnest money. They did not lift their sugar. The plaintiff filed suits against them for damages @ Rs. 54.42 (Rs. 281.75 + Rs. 40.67 - Rs. 268/-) per quintal after adjusting the amount of earnest money deposited by them. The case of all the defendants is that the terms and conditions of the auction sale were not explained to them, after the issuance of the Price Control Order the plaintiff was not entitled to charge price at the rate exceeding Rs.268.00 including all charges per quintal and the contract for the purchase of sugar at the rate of Rs. 322.42 stood frustrated and cancelled, amount was not paid as earnest money but it was part payment towards the price, the plaintiff had not suffered any loss and it had sold sugar at the rate of Rs. 292.00 per quintal. After framing necessary issues and recording the evidence of the parties, the trial Court dismissed the suits holding that the plaintiff is entitled to recover damages at the rate of Rs.13.75 only (281.75 - 268) per quintal and to deduct it from the amount of earnest money deposited @ Rs. 30.00 per quintal. The plaintiff filed appeals and they were dismissed by the learned Additional District Judge No. 2, Sri Ganganagar by his similar judgments dt/- Nov. 29, 1985, holding that the provisions of S. 20, Sales of Goods Act, 1930 (hereinafter to be called 'the Act') were not applicable in these cases as the sugar bags were not in a deliverable state at the time of auction sale, the property in goods did not pass to the defendants, on the issuance of Price Control Order, the contracts which took place in between the parties on Sept. 10, 1979 were frustrated, the defendants were not bound to lift the sugar purchased by them in the said auction sale and the plaintiff has failed to prove that it had suffered loss on account of the non-lifting of the sugar by the defendants. The plaintiff-appellant has filed these second appeals challenging the judgments of both the learned lower Courts.
(3.) On Feb. 2, 1987, Hon'ble Mr. Justice N. C. Sharma framed the following nine substantial questions of law in second appeals Nos. 66/86, 78/86 and 82/86 :- "(i) Whether the learned appellate judge has committed serious illegality and acted without jurisdiction in applying S. 20 of the Sale of Goods Act and not S. 64 of the Act in the facts of the present case and which provision of law is applicable? (ii) Whether the property in the goods passes to the buyer-respondent on 10-9-79 when the auction sale was finally announced in his favour or not in view of S. 20 of the Act and whether doctrine of frustration will apply in this case or not? (iii) Whether the Sugar (Price Control) Order 1979 was applicable to all sales made prior to 12-9-79 if the delivery of the same has not been taken by the buyer i.e. respondent then whether retrospective effect could be given on auction sales already completed on 10-9-79 but the property not delivered before 12-9-79 in view of the Sugar (Price Control) Order, 1979? (iv) Whether the appellant was bound to supply the sugar bags to the respondents @ Rs. 268.00 per bag (quintal) in view of the provisions of Sugar (Price Control) Order, 1979 and the appellant could charge old auction price at which the auction sale was announced on 10-9-79? (v) Whether there is a contravention of Cl. 3 of the Sugar (Price Control) Order, 1979 if the appellant charges the price at which the auction sale was completed on 10-9-79, but delivery not made at the spot and delivery period was fixed from 16-9-79 to 22-9-79? (vi) Whether such contravention of Cl. 3 of the Order read with S.7 of the Essential Commodities Act is punishable and therefore the respondent has not taken the delivery in the agreed period i.e. 16-9-79 to 22-9-79? (vii) Whether the provisions of S. 56 of the Contract Act are applicable in the present circumstances of the case and therefore on coming into force the Sugar (Price Control) Order, 1979 the respondent was lawfully in not taking the delivery of the old agreed rate S. 56 of the Contract Act says that an agreement to do an act impossible in itself is void? (viii) Whether the lower Courts were bound to decree the suit in view of the provisions of Ss. 55 and 56 of the Indian Contract Act? (ix) Whether the contract was not frustrated even after coming into force of the Sugar (Price Control) Order, 1979?;