# Duni Chand Rat aria v. Bhuwalka Brothers Ltd

- **Citation:** [1955] 1 S.C.R. 1071
- **Court:** Supreme Court of India
- **Decided:** 1954-12-03
- **Case number:** Civil Appeal No. 61 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/duni-chand-rat-aria-v-bhuwalka-brothers-ltd-299
- **Pages:** 13

## Headnote

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. '
:s.c.R.
SUPREME COURT REPORTS
1071
to establish a proper system of
conservancy,
sanitation and watch and ward at the fair, (3) that
when
issuing a permit the
District
Magistrate
can impose
such terms and conditions as he may
deem fit.
The
net effect of these rules is merely to establish a system
·of ad hoc control by the District Magistrate through
the issue of a permit and by the vesting of other powers
in him under the rules.
These
cannot
be said to be
rules which in themselves constitute a system of con-
.servancy,
sanitation and watch and ward.
Thus
the
result that is brought about is not within the intendment of the section which authorises the making of
the rules. A system of ad hoc control of responsible
·officers may, possibly be one method
of regulating
the sanitary and
other
arrangements
at
such large
.gatherings.
But if it
is intended to
constitute
a
system of ad hoc control
with
reasonable safeguards,
the power to make rules in that behalf must be granted
to the rule-making authority by the legislative organ
in appropriate language.
The impugned order of the District Magistrate
being bad on both the above grounds, this is enough to
dispose of the appeal and it is not necessary to express any opinion as to whether the impugned order
infringes
also
the
appellant's
fundamental
rights
under article 19.
The appeal must accordingly be
:allowed.
Appeal allowed.
DUNI CHAND RAT ARIA
v.
BHUW ALKA BROTHERS LTD.
[MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
West Bengal Jute Goods Future Ordinance, 1949, s. 2(1) ( b) (i)
-Actual delivery of possession-Whether includes symbolical as well
as constructive delivery of pos.<ession-lndian Sale of Goods Act, 1930
(111 of 1930), s. 2(2)-Delivery-Meaning of.
Delivery has been defined in s. 2(2) of Indian Sale of Goods
Act, 1930, as meaning voluntary transfer of possession from one per1954
Captain G{lflpati
Singhji
v.
The State of Ajmer
and Another
Jagannadhwfas J.
1954
December 3
1954
Duni Chand
Rat aria
v.
Bhuwalka
Brothers Ltd.
1072
_SUPREME COURT REPORTS
[1955]
son to another and it includes not only actual delivery but also,
symbolical or constructive delivery within the meaning of the term.
The expression "actual delivery of possession" in s. 2( I) (b) (i}
of the West Bengal Jute Goods Future Ordinance, 1949 means actualdelivery as contrasted with inere dealings in differences within the·
intendment of the Ordinance and such actual delivery of possession
included within its scope symbolical as well as constructive delivery
of possession.
'fhe word "involving" in the expression "involving the actuaL
delivery of possession thereof" in s. 2(1) (b)(i) of the
Ordinance·
means in the context resulting in and this condition would be satisfied if the chain contracts in the present case, as entered into in themarket resulted in actual delivery of possession of goods in the uJti.
mate analysis.
The Ordinance came within Head 27 ot List 2 of the Seventh
Schedule of the Governμient of India Act, 1935:-"Trade aqd com·
merce within the Province; inarkets and fair; money lending
and·
money lenders" and the
Provincial Legislature was competent tolegislate on that topic.
Nippon Yusen Kaisha v. Ramjiban ([1938] L.R. 65 I.A. 263).
referred to.
CIVIL
APPELLATE
JuRISDICTION : Civil
Appeal No.
61 of 1953.
Appeal from the Judgment and Decree dated the
16th day of May, 1952 of the
High
Court of
Judicature at Calcutta in Appeal from
Original
Decree
No. 124 of 1951 arising out of the decree dated
the
25th day of May, 1951 of the High
Court of Calcutta·
in its Ordinary Original Civil Jurisdiction in Suit
No ..
3614 of 1950.
M.
C.
Setalvad,
Attorney-General for India, (P.
Manda/ and S. P. Varma, with him), for the appellant.
N. C. Chatterjee
(A. N. Sinha and
P. C. Dutta,.
with him), for the respondent.
1954.
December 3. The Judgment of
the
Court
was delivered by
BHAGWATI J.-This
appeal
with
certificate
from
the High Court of Judicature at
Calcutta arises
out
of the suit fi

## Text

-
. '
:s.c.R.
SUPREME COURT REPORTS
1071
to establish a proper system of
conservancy,
sanitation and watch and ward at the fair, (3) that
when
issuing a permit the
District
Magistrate
can impose
such terms and conditions as he may
deem fit.
The
net effect of these rules is merely to establish a system
·of ad hoc control by the District Magistrate through
the issue of a permit and by the vesting of other powers
in him under the rules.
These
cannot
be said to be
rules which in themselves constitute a system of con-
.servancy,
sanitation and watch and ward.
Thus
the
result that is brought about is not within the intendment of the section which authorises the making of
the rules. A system of ad hoc control of responsible
·officers may, possibly be one method
of regulating
the sanitary and
other
arrangements
at
such large
.gatherings.
But if it
is intended to
constitute
a
system of ad hoc control
with
reasonable safeguards,
the power to make rules in that behalf must be granted
to the rule-making authority by the legislative organ
in appropriate language.
The impugned order of the District Magistrate
being bad on both the above grounds, this is enough to
dispose of the appeal and it is not necessary to express any opinion as to whether the impugned order
infringes
also
the
appellant's
fundamental
rights
under article 19.
The appeal must accordingly be
:allowed.
Appeal allowed.
DUNI CHAND RAT ARIA
v.
BHUW ALKA BROTHERS LTD.
[MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
West Bengal Jute Goods Future Ordinance, 1949, s. 2(1) ( b) (i)
-Actual delivery of possession-Whether includes symbolical as well
as constructive delivery of pos.<ession-lndian Sale of Goods Act, 1930
(111 of 1930), s. 2(2)-Delivery-Meaning of.
Delivery has been defined in s. 2(2) of Indian Sale of Goods
Act, 1930, as meaning voluntary transfer of possession from one per1954
Captain G{lflpati
Singhji
v.
The State of Ajmer
and Another
Jagannadhwfas J.
1954
December 3
1954
Duni Chand
Rat aria
v.
Bhuwalka
Brothers Ltd.
1072
_SUPREME COURT REPORTS
[1955]
son to another and it includes not only actual delivery but also,
symbolical or constructive delivery within the meaning of the term.
The expression "actual delivery of possession" in s. 2( I) (b) (i}
of the West Bengal Jute Goods Future Ordinance, 1949 means actualdelivery as contrasted with inere dealings in differences within the·
intendment of the Ordinance and such actual delivery of possession
included within its scope symbolical as well as constructive delivery
of possession.
'fhe word "involving" in the expression "involving the actuaL
delivery of possession thereof" in s. 2(1) (b)(i) of the
Ordinance·
means in the context resulting in and this condition would be satisfied if the chain contracts in the present case, as entered into in themarket resulted in actual delivery of possession of goods in the uJti.
mate analysis.
The Ordinance came within Head 27 ot List 2 of the Seventh
Schedule of the Governμient of India Act, 1935:-"Trade aqd com·
merce within the Province; inarkets and fair; money lending
and·
money lenders" and the
Provincial Legislature was competent tolegislate on that topic.
Nippon Yusen Kaisha v. Ramjiban ([1938] L.R. 65 I.A. 263).
referred to.
CIVIL
APPELLATE
JuRISDICTION : Civil
Appeal No.
61 of 1953.
Appeal from the Judgment and Decree dated the
16th day of May, 1952 of the
High
Court of
Judicature at Calcutta in Appeal from
Original
Decree
No. 124 of 1951 arising out of the decree dated
the
25th day of May, 1951 of the High
Court of Calcutta·
in its Ordinary Original Civil Jurisdiction in Suit
No ..
3614 of 1950.
M.
C.
Setalvad,
Attorney-General for India, (P.
Manda/ and S. P. Varma, with him), for the appellant.
N. C. Chatterjee
(A. N. Sinha and
P. C. Dutta,.
with him), for the respondent.
1954.
December 3. The Judgment of
the
Court
was delivered by
BHAGWATI J.-This
appeal
with
certificate
from
the High Court of Judicature at
Calcutta arises
out
of the suit filed on the original side
of the High Court
by the appellant against the respondent to recover a
sum of Rs. 1,25,962-2-0 with interest and costs.
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S.C,R.
SUPREME COURT REPORTS
1073
The appellant entered
into
three
contracts, two
dated the 8th August 1949 and the
third
dated
the
17th August 1949 with
the respondent
agreeing
to
purchase 1,80,000 bags of 'B' twills
at
the
price
of
Rs. 134/4/- per 100 bags, 1,80,000 bags at the rate of
Rs. 135/4/- per 100 bags and 90,000 bags
at
the
rate
of Rs. 138/-
per 100 bags respectively
for
October,
November and
December
1949
deliveries
in
equal
monthly instalments on
terms
and conditions
con··
tained in the relative contract forms of the Indian
Jute
Mills
Association.
In September 1949
the respondent
expressed its inability to deliver
the goods
under the
. said contracts and requested the
appellant
to settle
the same by selling back the goods under the said contracts to the
respondent
at the price
of
Rs. 161-8-0
per 100 bags.
Three settlement contracts were accordingly entered into between the
parties
on the
28th
September 1949 whereby the appellant
agreed to sell
the goods under the original contracts to the respondent at
the rate of Rs. 161-8-0 per 100 bags on the
terms and conditions contained in the
relative
contract forms of the
Indian Jute Mills Association.
The
appellant duly submitted to the respondent his
bills
for the amounts due at the foot of the said
contracts
aggregating
to
Rs. 1,15,650
which
the
respondent
accepted
but failed
and neglected to pay in spite of
repeated demands of
the appellant.
The appellant
therefore filed the suit for recovery
of the said sum
with interest and
costs.
The
respondent
filed
its
written statement contesting the
appellant's claim on
the main ground that the three settlement
contracts
above-mentioned
were illegal and prohibited
by
the
West Bengal Jute Goods Future Ordinance, 1949.
The
respondent contended
that it never dealt in the sale
and/or purchase of jute
goods involving actual
delivery of possession thereof, nor did it possess or
have
control over any ,godown and other
means or equipments necessary for the storage
and supply
of jute
goods and that therefore the said settlement contracts
were void and not binding upon it and that the appellant
was not entitled
to any relief as prayed.
The
Trial Court negatived the contention
of the
responDuni Chanel
Rat aria
v.
Bhuwalka
Brothers Ltd.
Bhagwati ].
1954
.·Duni Chand
Rat aria
v.
Bhuwalka
Brothers Ltd.
Bhagwati J.
1074
SUPREME COURT REPORTS
[1955]
dent and decreed
the appellant's claim.
The learned
Judges of the Appeal Court however came to the conclusion that the said settlement
contracts
were
con-
, tracts relating to the purchase of jute
goods
made on
a forward basis by the respondent
not being a person
who habitually dealt in the sale or purchase
of jute
goods involving
the actual
delivery
of
possession
thereof and were therefore
void
and
unenforceable.
The only right which the appellant had
against
the
respondent was to have the
said
original
contracts
settled on the basis of the last closing rate
in a notified market which was Rs. 146/14/- per 100 bags.
No
such claim
was however
made by the appellant.
A
further contention
which was raised
by the
respondent, viz. that the Ordinance was ultra vzres was negatived by the Court.
But in view of its finding on the
mam issue the Appeal Court dismissed the appellant's
suit with costs.
The relevant provisions of the West Bengal Jute
Good Future Ordinance, 1949 were as under :-
Section 2.
In this Ordinance, unless there rs
anything repugnant in the subject or context :-
( 1) 'Contract
relating to
jute
goods
futures'
means a contract relating
to the sale or purchase
of
jute goods made on a forward basis-
(a) providing for the payment
or
receipt, as
the case may be, of margm m such manner and on
such dates as may be specified in the contract, or
(b) by or with any person not being a person
who,
( i) habitually deals m the sale or purchase
of
jute goods involving the actual delivery
of possession
thereof, or
(ii) possesses,
or has control
over, a godown
and other means
and equipments
necessary
for the
storage and supply of jute goods : ....................... .
3. (1) The
Provincial
Government
may,
from
time to time, if it so thinks fit, by notification in the
Official Gazette prohibit the making of contracts,
relating to jute goods futures and may, by like notification,
withdraw
such prohibition ..................... .
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S.C.R.
SUPREME COURT REPORTS
1075
(2) When the
making of
contracts relating
to
jute
goods
futures 1s
prohibited
by a notification
under sub-section (1) .~
(a) no person shall make any such contract or
pay or receive any margin except,
111 the case of any
such contract made pnor to the date of the notification, to the extent to which the payment or receipt,
as the case may be, of margin is allowable on the basis
of the last closing rate in a notified market : ........... .
( c) notwithstanding
anything
contained
111 any
other law for the time being in force,-
(i) every such contract made, and every claim
in respect of margin, in
contravention of the
provisions of clause (a), shall be void and unenforceable, and
(ii) every such contract made prior to the date
of publication of the notification shall
be varied
and
settled on the basis of the last
closing rate in a notified market.
Explanation-In this sub-section,-
( a) "last
closing rate" means the rate fixed by
the Directors of a notified
market to be the
closing
rate of such market immediately preceding the date
of
publication of the notification
under
sub-section
(1)
prohibiting the
making of contracts relating to
jute
goods futures: and
(b) "notified
market"
means
a
jute
goods
futures market recognised
by the
Provincial
Government by notification in the Official Gazette.
The Ordinance came into force on the 22nd September 1949.
In pursuance of the power conferred under
section 3 ( 1) of the Ordinance the Government of West
Bengal issued a notification,
being notification No.
4665 Com. dated the 23rd
September 1949 prohibiting
the making of contracts relating to jute goods
futures
on and
from the date of
publication
of the notification in the
Official
Gazette and by another
notification No. 4666 Com. of the same date recognised' certain
jute goods
futures markets for the purpose of Para.
(b) of the
Explanation
to section 3(2) as
notified
markets. These notifications
were published
m
the
1954
Duni Chand'
Rat aria
v.
Bhuwa/ka
Brothers Ltd.
Bhagwati J.
1954
Duni Chand
Rataria
v.
Bhuwalka
'Brotlurj Ltd.
fJhagwati J.
1076
SUPREME COURT REPORTS
(1955]
Calcutta Gazette on the same day, the 23rd September 1949.
The relevant terms and conditions of the standard
form of the Indian Jute Mills Association contracts
may be conveniently set out here :-
(1) Buyers to give 7 Clear . Working day's notice
to
place
goods
alongside ........................... .
(3) P;iyment to be made in cash in exchange for
Delivery Orders on
Sellers, or for Railway
Receipts,
or for Dock's Receipts or for Mate's
Receipts
(which
Dock's
Receipt or Mate's
Receipts are to be handed
by a Ship's or Dock's officers to the
Sellers'
representatives).
( 4) The
Buyers
hereby
acknowledge,
that
so
long as such Railway
Receipts or Mate's
or
Dock's
Receipts
(whether m Sellers' or Buyers' names) are
in the possession of the Sellers, the lien of the sellers,
as unpaid
vendors,
subsists both on
such
Railway
Receipts Dock's or. Mate's
Receipts
and
the
goods
they represent until payment is made in full.
There were other terms and conditions
appertaining to the delivery of goods under the
contracts mcluding inspection by the
buyers,
msurance.
tender,
etc. The settlement contracts
were also practically
in
the same form except that in the body
of
the
contracts it was mentioned
that the
particular
contract
represented settlement
of an
original contract which
had been
already
entered into between
the
parties
and that the buyers m the settlement contract would
pay to the sellers the difference at the particular rate
on due date.
In respect of the goods deliverable under the contracts the mills would, in the case of goods sent by
them alongside
the vessel in
accordance
with
the
shippers'
instructions
m
that
behalf,
obtain
the
mate's receipts in respect of the same and such mate's
receipts
would
be delivered
by
the
mills to their
immediate buyers who in their turn would pass them
on to their respective buyers m the chain of contracts resting with the ultimate shipper.
If the mills
held the goods m their godown they would issue
.,,.,.
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:S.C.R.
SUPREME COURT REPORTS
1077
.delivery orders on the due date,
which delivery orders
would be dealt with in the same manner as the mate's
receipts aforesaid.
Both
these
sets
of
documents
would represent
the goods
and would
be passed
on
from seller to buyer against payment
of cash.
As a
matter of fact
on the evidence
the
learned
Trial
Judge held that in the
Calcutta jute trade mills' delivery orders are ordinarily
issued by the mills against
·Cash payment and pass from hand to hand by endorsement and are used in the ordinary course
of business
authorising the endorsee to receive
the goods which
they represent and that they are dealt with in the
market as representing the goods .
The Appeal Court accepted this position and further
found that in the instant case "the mills who held the
goods sold them to A, A to B, B to the defendant,
<lefendant to the plaintiff, plaintiff to C and C to
the
·shipper.
This is what is · known as a chain
contract.
It is admitted by the plaintiff, that
the mills give
the
delivery order to A.
A endorses it to B, B to
the
defendant, defendant to the plaintiff and so on".
The question that falls to be determined on
these
facts
and circumstances is whether
the
settlement
<ontracts mentioned above
could
be called
contracts
between the appellant
and the respondent
involving
the actual delivery of
possession
of
the goods.
It
was common ground that the contracts did not provide for the
payment or receipt
of margin.
It was
also common ground that the respondent
did not possess or have control over a godown
and ·other means
and equipments necessary for the . storage and supply
of jute goods.
The only point at issue was
whether
the respondent was a person
who habitually dealt in
the sale or purchase of jute goods involving the actual
delivery
of
possession
thereof
and
the
contention
which was vehemently urged on behalf of the respondent in the
Courts below
was that the
transactions
were purely speculative,
that
mere
delivery
orders
passed between the parties, which
delivery
orders
did not represent the goods and the
transfer
thereof
did not involve as between the intermediate parties
actual
delivery
of
possession
of
the goods
but
I954
Duni Chand
Rataria
v.
Bhuwalka
Brothers Ltd.
Bhagwati ] •
1954
Duni Chand
Rataria
v.
Bhuwalka
Brothers lld.
Bhagwati ].
1078
SUPREME COURT REPORTS
[1955]
differences in rates were only paid or received by the
parties.
The appellant on the other hand contended that the·
delivery orders represented
the goods, that each
successive buyer paid to his immediate seller the full
price of the goods
represented
by the delivery
order
in cash before the relative delivery order was
endorsed
m his favour and thus obtained not only
the title
to tlle goods but
actual delivery of possession
thereof and that in any event when the goods were delivered
alongside
tile
vessel or actual delivery was
taken by the ultimate buyer there was the giving and
taking of actual delivery of possession
of
the
goods
all along the chain at the same moment.
The Trial Court accepted
the
contention
of the
appellant that the delivery orders are dealt with in the
market as representing the
goods and that they pass
from hand to hand by endorsement
being ·received by
the successive buyers against
cash
payment
and
are·
used m tile ordinary
course
of business
authorising
the endorsee to receive
the goods which they represent.
The learned Trial Judge furtller observed :-
"Now visualize tile long chain
of
contracts
m
which the defendant's contract
IS one of the connect-
'v
ing links.
The defendant
buys from
its
immediate
seller and sells to its immediate buyer.
As
seller
it
is liable to give and as buyer it 1s entitled
to
take
delivery.
As seller it receives
and as buyer it
gives.
shipping
instructions.
Similar
shipping
instruction
1s given by each link until it reaches
the mills.
The:
mills deliver tile goods alongside the steamer.
Such
delivery is in implement of
the contract between the
mills and their immediate buyer.
But eo instanti it
is also m implement of each of the
chain
contracts.
including the contract between
the defendant and its.
immediate buyer and the contract between the defendant and its immediate seller.
Not only does" the
mill.
give and its immediate buyer take actual delivery
but
eo instanti each middleman gives
and
takes
actual
delivery.
Simultaneously
the defendant
takes
actual
delivery of possession
of the jute goods from its immediate seller and gives actual delivery
of
possess1011
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S.C.R.
SUPREME COURT REPORTS
1079
of jute goods to its immediate buyer. Prima facie
at
the moment
of the
delivery
alongside
the steamer
there is appropriation and the passing
of the property
in the goods and the giving and taking of actual delivery of possession
thereof all along
the chain at the
same moment".
The learned Trial Judge then referred to the following observations of
Lord
Wright , in Nippon Yusen
Kaisha v. Ramjiban(1) in regard to the standard form
of the Indian Jute Mills Association contract:-
"This is a form under
which the
entire
export
business in gunnies in Calcutta
is
conducted, ..... In
the present case the sale being free alongside,
the property prim a f acie passes
when the
goods
are
appropriated by delivery alongside
m
implement
of
the
contracts,"
and added:-
"The sale and purchases of the defendant where
there is actual shipment and delivery
of possession
of
the goods alongside the vessel
involves actual delivery
of possessipn of the jute goods.
The delivery
of
the
· goods alongside the vessel
is physical
delivery of the
goods and necessarily changes
the actual custody of
the goods.
It is said that there
is no actual physical
delivery of the goods by the defendant himself.
The
Legislature, however,
does
not say that
the
dealer
must himself give actual
delivery
of
the
goods.
I
cannot read in the statute words
which are not there
and say that the dealer must himself give delivery of
the goods in order to come
within
the definition in
sub-section 2(1) (b) (i) of the Ordinance. The Legislature simply insists that the sales and purchases
of the
dealer involve actual delivery of possession of the jute
goods.
I do
not see why the sales and purchases
do
not involve actual delivery
if
such actual
delivery
is given not by the dealer but by a third
party
in
performance of and in relation to the sales
and
purchases of the dealer.
Even the buyer and the seller
of jute goods over the counter rarely takes
and gives
manual delivery of the goods.
Very often such manual
delivery is given and taken not by the buyer
and
(1) f1938] L. R. 65 J. A. 263.
13-89 S. C. Jndia/59
1954
Duni Chana
Rat aria
v.
Bhuwalka
· Brothers Ua.
Bhagwati J.
1954
Duni Chand
Rataria
v.
Bhur,valka
Brothers Ltd.
.:Bhagwati J.
1080
SUPREME COURT REPORTS
[1955]
seller but by their respective servants and agents.
I
do not see why instead of the buyers' and sellers' employees and servants giving and
taking
delivery
of
the goods somebody else on their
behalf
gives
and
takes delivery; such delivery is not actual delivery
of
possession of the goods".
The learned Judges of the
Appeal
Court however
.did not accept this view and
misdirected
themselves
both in regard to the facts and the position in law.
They took it that
none · of the parties in the chain
contracts paid the
actual price of the goods except the
shipper who took delivery of the goods from the mills
against payment.
They wrongly assumed that
A endorsed
the
delivery order
over to
B and took the
difference, B in
his turn endorsed
the delivery
order
to the defendant and took the difference
and so
on
and concluded that nobody was concerned to
pay the
actual price or take delivery of the goods except the
shipper who took the goods and paid the price
to the
mills.
This assumption was
absolutely unwarranted,
the evidence on record being that each
of the successive buyers paid to his immediate seller the full
price
of the goods represented
by the delivery order in cash
against th.e endorsement of the relative delivery
order
in his favour by the seller.
The learned Judges of the Appeal Court also laid
unwarranted
emphasis on
the words "actual delivery
of possession" and
contrasted
actual
delivery
with
symbolical
or constructive
delivery
and
held
that
only actual
delivery of
possession meaning / thereby
physical or manual delivery was within the
intendment of the Ordinance.
Delivery has
been defined in
section 2(2) of the Indian Sale of Goods Act as meaning voluntary transfer of possession
from one person
to another
and if nothing more was
said
delivery
would not only include actual delivery
but
also symbolic or constructive
delivery within the
meaning of
the term. The use of the word "actual" in section
2(1) (h) (i) of the Ordinance was considered by the Appeal Court as indicative of
the intention of the - Government to include within the scope of the exemption
<lnly
cases
of
actual
delivery
of
possession
as
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/
y
-
,./
..
-
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-
S.C.R.
SUPREME COURT REPORTS
· 1081
contrasted with symbolical
or
constructive
delivery.
This construction m our opinion ts too narrow.
Even
if regard be had to the mischief
which was sought to
be averted by the promulgation of the
Ordinance, the
Government intended to prevent
persons
who dealt in
differences only and never
intended to take
delivery
under
any circumstances,
from entering
into
the
market.
Provided a person habitually
dealt
m
the
sale or purchase of jute goods
involving
delivery
of
the goods, he was not to be included in the ban. This
could be the only intendment of the Ordinance, because otherwise having regard to the
ordinary course
of business, business in jute goods would become
absolutely impossible.
The manufacturer
of
jute
goods
does not come normally into direct contact with the
shipper.
It ts only through a chain
of contracting
parties that the shipper obtains
the
goods
from the
manufacturer and if only actual
delivery of possess10n
as contrasted with symbolical or constructive
delivery
were contemplated it would be impossible to carry on
the business.
If the narrow construction
which was
put by the
Appeal
Court on the
expression "actual
delivery of possession" was accepted it
would involve
each one of the intermediate
parties
actually
taking
physical or manual delivery of the goods
from
their
sellers
and agam m their turn givmg
physical
or
manual delivery
of the goods which they had thus
obtained to
their immediate buyers.
Such
an eventuality could never have been contemplated
by the
Government
and
the only reasonable
interpretation
of the expression "actual delivery
of
possession"
can
be that actual delivery as contrasted with
mere dealings in differences
was within the intendment of the
Ordinance and such actual delivery
of
possession
mcluded
within its scope symbolical
as well
as
constructive delivery of possession.
Once this conclusion ts reached it ts easy to visualise the course of events.
The mate's
receipts or the
delivery
orders
as the case may be, represented
the
goods. The sellers handed over these
documents
to
the buyers
against cash
payment,
and
the buyers
obtained these
documents
m token of
delivery of
1954
Duni Chand
Rataria
v.
Bhuwalka
Brothers Ltd.
Bhagwati ].
1954
Duni Chand
Rataria
v.
Bhuwalka
Brothers I.Jd.
Bhagwati :J.
1082
SUPREME COURT REPORTS
[1955]
possession of
the goods.
They in turn
passed these
documents from hand to hand until they rested with
the ultimate buyer who took physical or manual delivery of possession of those goods.
The constructive
delivery of possession which was
obtained by the" intermediate parties was thus translated into a physical
or manual
deli,ery of possession
in
the
ultimate
analysis eliminating the
unnecessary
process of each
of the intermediate
parties
taking and in his
turn
giving actual
delivery of possession
of the
goods in
the narrow sense
of
physical
or
manual
delivery
thereof.
It is necessary to remember in this connection that
the words used in section 2(1) (b) (i) are "involving the
actual delivery
of
possession
thereof".
The
word
"involving" in the context
means
resulting
in
and
this condition would be
satisfied if the chain contracts
as entered into in the market resulted in actual delivery of possession of goods in the ultimate
analysis.
The Appeal Court was therefore clearly in error when
it put a narrow construction on the
expression
"actual
delivery of possession" and held that the
transactions
were purely speculative
and the parties in no event
contemplated
actual delivery
of
possession
of
the
goods.
The learned Trial Judge was in our opinion
correct in his appreciation of
the whole
position
on
facts as well as in law and in negativing
the contention of the respondent.
In view of this conclusion it is unnecessary to consider the argument
which was submitted
before ·us
based
upon the definition of "documents of title"
in
section 2(4) and the provisions of section 30, proviso
to section 36(3) and the proviso to section 53(1)
of
the Indian
Sale of Goods Act tl1at all the documents
of title enumerated in section 2 ( 4)
were
assimilated
to a bill of lading and a mere
transfer of the ·documents of title in favour
of a buyer
was
tantamount
to a transfer of possession
of the goods
represented
thereby.
The contention that the Ordinance was ultra vires
was not seriously pressed before us.
We may however
add that the
Appeal Court rightly held
that
the
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S.C.R.
SUPREME COURT REPORTS
1083
Ordinance came within Head 27 of List 2 of the Seventh
Schedule of the
Government of
India Act:-"Trade
and commerce within the
Province; markets and fair;
money
lending
ahd money lenders'',
and that
the
Provincial
Legislature was competent to legislate on
that topic.
The result therefore is that the appeal will be
allowed, the decision of the Appeal Court will be reversed and the decree passed by the Trial Court in
favour of the
Appellant
will be restored with costs
throughout.
Appeal allowed.
PANDURANG, TUKIA AND BHILLIA
ti.
THE ST ATE OF HYDERABAD.
[MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.)
Indian Penal Code
(Act XLV of 1860), s. 34-Prior concertCommon intention-Same or similar intention-Distinction between.
It is
well-settled that common intention in s.
34
of the
Indian Penal Code presupposes prior concert.
It requires a prearranged plan because before a man can be vicariously convicted for
the criminal act of another, the act must have been done in furtherance of the common intention of them all.
Accordingly there must
have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely
the intention to kill, and each can
individually inflict a
separate
fatal blow and yet none would have the common intention required
by the section because there was no prior meeting of minds to form
a pre-arranged plan.
In a case like that, each would be individually
liable for whatever injury he caused but none . could be vicariously
convicted for the act of any of the others; and if the prosecution
cannot prove that his separate blow was a fatal one he cannot be
convicted of the murder however clearly an intention to kill could be
proved in his case.
Care must be taken not to
confuse same or similar intention
with common intention; the partition which divides their bounds is
often very thin, nevertheless the distinction is real and substantial,
and if overlooked will result in miscarriage of justice.
The plan need not be elaborate, nor is a long interval of time
required. It could arise and be formed suddenly.
But there must
139
.
1954
Duni Chand
Rataria
.,.
I Bhuwalka
Brothers lJd,
Bhagwati J.
1954
Decembet 3.