N. M. KASLIWAL, J. - (1.) THIS special appeal under Section 18 of the Rajas-than High Court Ordinance is directed against the judgment of learned Single Judge dated 14th April, 1971, affirming the judgment and decree of learned District Judge, Bhilwara, dated 5th October, 1966.
(2.) BRIEF facts giving rise to this appeal are that the defendant-appellant Messrs. Mewar Textile Mills Ltd. , Bhilwara (hereinafter referred to as 'the Textile Mills') was allotted wagons of coal for its use by the Deputy Coal- Controller. Government of India. The Textile Mills used to send permits of coal to the plaintiff-respondent and the plaintiff then used to obtain priority sanction in the name of the Textile Mills. After obtaining such sanction the plaintiff then used to approach the collieries, paid the money for the coal, and get the coal loaded in Railway wagons. The railway receipts were got prepared by the collieries as consignors in the name of the Textile Mills as consignee. The case of the plaintiff was that between 15th October, to 6th Dec. 1959, 25 wagons of coal were despatched to the textile mills and a sum of Rs. 11,356/70 paise remained due to the plaintiff from the textile mills. The wagons reached its destination, but the textile mills did not take delivery of the goods by taking the railway receipts from the Bank after making the payments. As the textile mills did not take the delivery of the coal wagons the amount of wharfage and demurrage swelled to the extent of Rs. 46,800/ -. As this amount was not paid, the railway authorities appropriated the coal. The plaintiffs' case was that it had paid the price of the coal to the collieries on behalf of the textile mills and as such it was entitled to recover the amount from the textile mills. The plaintiff claimed Rs. 11. 936/70 as the principal amount plus interest @ 9 per cent per annum in all Rs. 18,200/ -. The case set up by the defendant textile mills interalia was that the plaintiff had acted in violation of the agreement in the course of the callings inasmuch as instead of sending the railway receipts direct to the defendant, it sent them through the bank knowing fully well that the defendant was short of funds with the result that the railway receipt could not be taken and the consignment remained undelivered and wharfage and demurrage raised upto the tune of Rs. 46 800/- It was further pleaded that after having come to know that the delivery of the coal wagons had not been taken to the defendant and the amount of demurrage and wharfage had risen to Rs. 46,800/-, the plaintiff took the responsibility of recovering the prices of the coal from the railway and also requs-ted the railway to fore-go the amount of demurrage and wharfage as a special case. The plaintiff had also given a notice to the railway for the recovery of the price of the coal and to institute a suit against the railway. On a request made by the plaintiff the power of attorney was also given by the textile mills to the plaintiff, but the plaintiff did not file any suit against railway and returned the railway receipt to the textile mills after the limitation had expired against the railway. Under these circumstances the textile mills was not liable to pay any amount to the plaintiff. Some other objections were also taken in the written statement. On the aforesaid pleadings of the parties the trial Court framed the following issues: 1. Is the plaintiff's firm duly registered? 2. (a)-Whether there was an agreement and practice between the parties that the plaintiff would send the railway receipt in respect of the coal direct to the defendant and not through bank and the plaintiff went against that agreement in sending the railway receipts through the bank? (b)-If so, what is its effect upon the suit? 3. Is the plaintiff suit time barred? 4. Is the defendant not liable to pay any amount to the plaintiff for reasons mentioned in para 11 to 14 of the written statement? 5. Is the plaintiff firm entitled to a sum of Rs. 11,936. 70 p. as cost of the coal and Rs. 6263. 30 p. as interest upon it? 6. Does the plaint not disclose any cause of action and therefore, is liable to be rejected ? 7. Is the defendant entitled to special costs? 8. What relief? Apart from the documentary evidence filed by both the parties the plaintiff examined Basanti Lal PW 1 and Guman Mal Doshi in support of its case. The Textile Mills examined Bhanwar Lal DW 1 and Damodar Lal DW 2 in support of its case. The learned District Judge after thorough perusal of the oral and documentary evidence held that the plaintiff had not violated any agreement between the parties in sending the railway receipt through the bank and not directly to the textile mills. The suit was within limitation. The plaintiff was a registered firm. The plaintiff having paid the price of coal to the collieries on behalf of the defendant, was entitled to recover it back along with interest @ 9 per cent per annum. The learned District Judge as such decree the suit for Rs. 18,200/- in favour of the plaintiff and against the defendant. The plaintiff was also allowed pendent lite and future interest upon Rs. 11,936. 70 @ 6 percent per annum from the date of the suit i. e. 4th February, 1965 till realisation. The Textile Mills aggrieved against the judgment and decree of the learned District Judge filed an appeal which came up for consideration before the learned Single Judge. Before the learned Single Judge two contentions were raised on behalf of the textile mills; (1) that the jural relationship between the parties in regard to the transaction in dispute was that of a seller and purchaser; and (2) since the plaintiff had purchased the coa1 from the collieries in its own name and bills for the same had also been issued in its name, it. is not entitled to recover the price from the textile mills because the property in the case vested in the plaintiff and did not pass to the Company until the price for the goods was paid. The learned Single Judge referred to certain provisions of the Colliery Control Order, 1945, and held that under the provisions of sections 124, 126 and section 6 of the Colliery Control Order, the coal was allotted to the textile mills by the Deputy Coal Controller (Distributioc)Calcutta, and it was to be purchased through the plaintiff, a middle-man, who was to act as dolcredre agent and was entitled to receive commission over the price fixed at the rate mentioned in clause 6 (2) of the Order. The plaintiff in its own right could not purchase the coal from the collieries nor was the textile mills entitled to use, divert or transfer any coal allotted to it except under the written authority from the Central Government. The learned Single Judge, therefore, held that the relationship between the parties could not be of a vendor and a vendee. The plaintiff only worked as a middleman to purchase coal on behalf of the textile mills. It did not buy and indeed it could not buy coal for itself. In regards the second contention the learned Single Judge held that the question as to when property in the goods passes, depends upon the intention of the parties having regard to the terms of the contract, their conduct, and the circumstances of the case. Simply for the fact that the agent had paid the price of goods on behalf of its principal, it cannot be held that the property in the goods vest in it until the price is paid by the Principal. The learned Single Judge held that the plaintiff occupied a dual capacity: (1) as agent for purchasing coal on behalf of the defendant; and (2) as a lender of money to the defendant for the purchase of coal, As agent the plaintiff had lien over the goods for the money during the course of transit or before the actual delivery of the goods, but it had no property in the goods. The property in the goods was never intended to vest in the plaintiff. The learned Single Judge thus finally held that the property in the goods never vested in the plaintiff and it was entitled as agent to recover the pace of the goods along with the amount of its commission from the defendant. In the result the appeal was dismissed with costs. Aggrieved against the judgment and decree of the learned Single Judge the defendant textile mills has filed this special appeal.
(3.) MR. Deedwania, learned counsel for the textile mills did not seriously challenge the finding of the courts below on issue No. 2 (a ). In our opinion, issue No. 2 (a) raised a dispute over a question of fact whether there was an agreement and practice between the parties that the plaintiff would send the railway receipts in respect of the coal direct to the defendant and not through the bank and the plaintiff went against that agreement in sending the railway receipts through the bank. The learned trial Court after thorough discussion of the oral and documentary evidence found that the defendant had been accepting the delivery of the railway receipts through Bank since last part of the year 1957, whole of the year 1958 and upto September, 1959. The defendant had also admitted that all the railway receipts in the year 1959 were sent by the plaintiff through the bank and not directly to the defendant. The defendant had not produced a single intimation pertaining to year 1958 which might prove that any railway receipt was sent directly to the defendant and not through the bank. The learned trial Court in this regard took into consideration Ex. 7, 11, 12, and 16 which also sent in favour of the plaintiff in deciding issue No. 2 (a ). Thus, the finding of fact decided under issue No. 2 (a) suffers from an error and is binding in second appeal. Mr. Deedwania, however, contended that in the facts and circumstances of the case, there was only an agreement to sale on behalf of the plaintiff and it was not a completed sale. It is contended that unless the payment was made by the defendant to the bank and got the delivery of the railway receipt, it was not a completed sale and the plaintiff in these circumstances had no right to bring a suit for the recovery of the price, the but remedy was to file aeuit for specific performance of the contract or to claim damages. It was also argued that the plaintiff is bound by the pleadings of his own case and it is well settled as laid down in Messrs. Trojan & Co. , vs. KM N. N. Nagappa Chettier (1) that no case can be made out beyond the pleadings. In this regard it is pointed out that in the plaint the plaintiff had come forward with a clear case that the plaintiff had paid the price of 25 wagons of coal and the same was consigned to the defendant and as such the plaintiff was entitled to the price of the coal. It is argued that the plaintiff had some forward with a clear case of purchasing the coal by paying the money to the collieries and thereafter selling it to the defendant and now the plaintiff is| not entitled to make out a case of agent. We find no force in the contention. When the plaint is read as a whole is it clear that the plaintiff had come forward with a case that the defendant textile mills was allotted for its own use wagons of coal by Deputy Coal Controller. The defendant had appointed the plaintiff as a supplier for sending the coal to the defendant. The plaintiff then sent 25 wagons of coal on different dates in the year 1959 and sent the railway receipts through Bank, but the defendant did not take the delivery of the coal in time on account of which it incurred heavy demurrage The defendant wrote to the railway authorities to reduce the demurrage but the railway authorities did not agree and the charges of demurrage itself become higher than the price of the coal itself. The defendant did not take the delivery of the coal land the railway thus appropriated the coal towards the demurrage charges. Thus when we see the entire allegations it leaves no manner of doubt that the plaintiff had come forward with a case of agency in the plaint. Mr. Deedwania, next contended that even if the plaintiff was acting in the capacity of an agent, still he could be considered as a seller under the Sale of Goods Act, Reliance was placed on the provisions of sections 4, 19, 23, 25, 45 and 46 of the Sale of Goods Act, 1930. It was contended that under subsection (3) of Section a wherein a contract of sale, the property of the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called as an agreement to sale. Under Section 19 for the purpose of ascertaining the intention of the parties shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case Under sub-section (2) of Section 23, where in pursuance of the contract,the seller delivers the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer, and does not reserve the rights of disposal he is deemed to have unconditionally appropriated the goods to the contract. Section 25 deals with reservation of right of disposal by the seller. It is provided that the seller may by the terms of the contract or appropriation reserved the right of disposal of the goods until certain conditions are fulfilled. In such a case notwithstanding the delivery of the goods to a buyer or to a carrier or other bailee for the purpose of transmission to the buyer,the property in the case does not pass to the buyer until the conditions imposed by the seller are fulfilled. Sub-section (2)of Section25 lays down that where goods are shipped or delivered to a Railway Administration for carriage by railway and by the bill of lodging or railway receipt, as the case may be, the goode are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. S. 45 defines 'unpaid Seller'. Under sub-section (2) of Section 45 it is mentioned that the term 'seller' includes any person who is in the position of a seller as for instance, an agent of the seller to whom the bill of lodging is endorsed or a consigner or agent who has himself paid, or is directly responsible for, the price. Section 46 then provides the unpaid seller's right. On the basis of the aforesaid provisions it was strenuously contended by Mr. Deedwinia that the plaintiff, even if, was an agent of the defendant textile mills, yet having paid the price of the coal himself, came within the term of seller' under the Sale of Goods Act and was entitled to exercise the right of unpaid seller's lien and when the railway receipt could not be released, as the amount was not paid by the defendant, it was a clear case where the property in the coal remained vested in the plaintiff and did not pass to the defendant. Reliance in this regard is placed on Bhagubai Tukaram Jogdunde v. Appaji Sitaram Charathe (2), Sabana Sakela vs. Hembanna Rayappa Hembaanavar (3 ). L. Jagram Das v. Banarsi Das (4), and A. Ramaswami v. K. Vankamma (5 ). On the proposition that in case of agreement to sale the only remedy of the plaintiff was to bring a suit for damages on account of breach of contract, reliance is placed on the following authorities: The Ford Automobiles (India) Ltd vs. The Delhi Motor and Engineering Co (6), Gulab Bai Sagar Mal v. Nirble Ram Nagar Mal (7) and Ram Niwas Satyanarayan vs. Commissioner of Taxes, Assam (8 ). ;