# The State v. Pandurang Baburao (supra)

- **Citation:** [1957] 1 S.C.R. 438
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Case number:** Criminal Appeal No. 3 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-v-pandurang-baburao-supra-1350
- **Pages:** 15

## Headnote

1957
Om Prakash Gup1a
...
State of U, P.
Gooinia Menon :J.
1957
January, 22.
438
SUPREME COURT REPORTS
[1957]
(a) The State v. Pandurang Baburao (supra),
(b) Bhup Narain Saxena v. State (supra),
and
(c) State v. Guiab Singh(').
We are in agreement with the view expressed
by
Hari Shankar and Randhir
~ingh JJ. that no sanction is necessary and the view expressed by Mul!a J.
to the contrary is not correct.
Criminal Appeal No. 3 of 1955 will accordingly be
dismissed.
Criminal Appeals -Nos. 42 of 1954 and 97
of 1955 will be heard on merits.
L. J. LEACH AND COMPANY LTD.
tJ.
JARDINE SKINNER AND CO.
(BHAGWATI,
VENKATARAMA
AYYAR,
B. P.
SINHA
and S. K. DAs JJ.)
Amendment of plaint-Addition of alternative ground for claim
-Necessary allegations present in plaint-Fresh suit on amended
clat'm barred by limitation-Whether amendment should he allowedAction in trover-W hen maintainable.
The appellants filed a suit for damages for conversion against
the respondents on the allegations that the respondents were the
agents of the appellants, that the appellants had placed orders for
certain goods with the respondents, and that the respondents had
actually
imported ...t:he
goods but refused to deliver them to the
appellants.
The
suit
was
dismissed
on the findings
that the
parties stood in the relationship of seller and purchaser, and not
agent and principal arid that the title in the goods could only pass
to the appellants when the respondents appropriated them to the
appellants'
contracts.
In appeal before the
Supreipe
Court, the
appellants applied for amendment of the plaint by raising, in the
alternative, a claim for damages for breach of contract for nonw
<lelivery of the goods.
All the allegations necessary for sustaining
a claim for damages for breach of contract were already present in
the plaint and the only allegation lacking was that the appellants
were, in the alternative, entitled to claim damages for breach of
contract by the non-delivery of the goods.
But a fresh
suit on
the amended claim was barred by limitation oh the date of the
application.
Held, that this was a fit case in which the amendment should
be allowed. The fact that a fresh suit on the amended claim was
(1) A.l.R. ['954] Raj. 2H.
S.C.R.
SUPREME COURT REPORTS
439
barred by limitation is a factor to be taken into consideration in
the exercise of the discretion as to whether the amendment· should
be ordered or not, and does not affect the power of the court to
order it, if that is required in the interests of justice.
Charan Das v. Amir Khan, L.R. 47 I.A. 225 and Kisan Das
v. Rachappa, (1909) I.L.R. 33 Bombay 644, followed.
To maintain an action in trover the plaintiffs must establish
that they had title to the goods in question and that further they
were entitled to possession thereof when they called upon the
defendants to deliver them.
If the parties stood in the relation
of sellers and purchasers with reference to the transactions, then
the plaintiffs
must show that the property in the goods, which
initially
was
with
the
defendants, had passed to them in
accordance with the provisions of the Sale of Goods Act.
If,
however, the defendants imported the goods as agents of the
plaintiffs, then the title to them would undoubtedly be with the
latter, and the only question then would be whether the former
were entitled to retain possession, as they would be if they had
paid the price on behalf of the principals, and had not been
reimbursed that amount.
CIVIL
APPELLATE
JuRISDICTION: Civil Appeal No.
219 of 1953.
Appeal from the judgment and decree dated June
26, 1952, of the Bombay High Court in Appeal No. 20
of 1952 arising out of the judgment and decree dated
December 17, 1951, of the said High Court in its
ordinary
Original Civil Jurisdiction in Suit No. 1623
of 1948.
C. K. Daphtary, Solicitor-General of India, M. N.
Gharekhan and M. S. K. Sastri, for the appellants.
H. D. Banaji, D. P. Madan, S.
N. Andley,
Rameshwar Nath
and /. B.
Dadachanji, for the
respondents.
1957. Jan

## Text

1957
Om Prakash Gup1a
...
State of U, P.
Gooinia Menon :J.
1957
January, 22.
438
SUPREME COURT REPORTS
[1957]
(a) The State v. Pandurang Baburao (supra),
(b) Bhup Narain Saxena v. State (supra),
and
(c) State v. Guiab Singh(').
We are in agreement with the view expressed
by
Hari Shankar and Randhir
~ingh JJ. that no sanction is necessary and the view expressed by Mul!a J.
to the contrary is not correct.
Criminal Appeal No. 3 of 1955 will accordingly be
dismissed.
Criminal Appeals -Nos. 42 of 1954 and 97
of 1955 will be heard on merits.
L. J. LEACH AND COMPANY LTD.
tJ.
JARDINE SKINNER AND CO.
(BHAGWATI,
VENKATARAMA
AYYAR,
B. P.
SINHA
and S. K. DAs JJ.)
Amendment of plaint-Addition of alternative ground for claim
-Necessary allegations present in plaint-Fresh suit on amended
clat'm barred by limitation-Whether amendment should he allowedAction in trover-W hen maintainable.
The appellants filed a suit for damages for conversion against
the respondents on the allegations that the respondents were the
agents of the appellants, that the appellants had placed orders for
certain goods with the respondents, and that the respondents had
actually
imported ...t:he
goods but refused to deliver them to the
appellants.
The
suit
was
dismissed
on the findings
that the
parties stood in the relationship of seller and purchaser, and not
agent and principal arid that the title in the goods could only pass
to the appellants when the respondents appropriated them to the
appellants'
contracts.
In appeal before the
Supreipe
Court, the
appellants applied for amendment of the plaint by raising, in the
alternative, a claim for damages for breach of contract for nonw
<lelivery of the goods.
All the allegations necessary for sustaining
a claim for damages for breach of contract were already present in
the plaint and the only allegation lacking was that the appellants
were, in the alternative, entitled to claim damages for breach of
contract by the non-delivery of the goods.
But a fresh
suit on
the amended claim was barred by limitation oh the date of the
application.
Held, that this was a fit case in which the amendment should
be allowed. The fact that a fresh suit on the amended claim was
(1) A.l.R. ['954] Raj. 2H.
S.C.R.
SUPREME COURT REPORTS
439
barred by limitation is a factor to be taken into consideration in
the exercise of the discretion as to whether the amendment· should
be ordered or not, and does not affect the power of the court to
order it, if that is required in the interests of justice.
Charan Das v. Amir Khan, L.R. 47 I.A. 225 and Kisan Das
v. Rachappa, (1909) I.L.R. 33 Bombay 644, followed.
To maintain an action in trover the plaintiffs must establish
that they had title to the goods in question and that further they
were entitled to possession thereof when they called upon the
defendants to deliver them.
If the parties stood in the relation
of sellers and purchasers with reference to the transactions, then
the plaintiffs
must show that the property in the goods, which
initially
was
with
the
defendants, had passed to them in
accordance with the provisions of the Sale of Goods Act.
If,
however, the defendants imported the goods as agents of the
plaintiffs, then the title to them would undoubtedly be with the
latter, and the only question then would be whether the former
were entitled to retain possession, as they would be if they had
paid the price on behalf of the principals, and had not been
reimbursed that amount.
CIVIL
APPELLATE
JuRISDICTION: Civil Appeal No.
219 of 1953.
Appeal from the judgment and decree dated June
26, 1952, of the Bombay High Court in Appeal No. 20
of 1952 arising out of the judgment and decree dated
December 17, 1951, of the said High Court in its
ordinary
Original Civil Jurisdiction in Suit No. 1623
of 1948.
C. K. Daphtary, Solicitor-General of India, M. N.
Gharekhan and M. S. K. Sastri, for the appellants.
H. D. Banaji, D. P. Madan, S.
N. Andley,
Rameshwar Nath
and /. B.
Dadachanji, for the
respondents.
1957. January 22. The Judgment of the Court was
delivered by
VENKATARAMA
AYYAR J.-This
appeal arises out
of a suit instituted by the appellants in the High Court
of
Bombay for damages for conversion estimated at
Rs. 4,71,670-15-0.
The suit was decreed by Shah J.
sitting on the Original Side, but his judgment was
reversed on
appeal
by
Chagla C.J.
and Gajendragadkar J. Against this judgment, the plaintiffs
have
1957
L. ]. utU:h and
Company Ltd.
v.
]ardim Skinmr
and ea.
195r
L. J. uach amt
Compan,.y Ltd.
v.
Jardine Skinner
and Cu.
Venkatarama
Ay.1ar J.
440
SUPREME COURT REPORTS
[1957]
preferred
the
present
appeal on a certificate under
Art. 133( 1) (a) of the Constitution.
Messrs. Maitland Craig Lubricants Ltd. is an American Company engaged in the manufacture and sale of
lubricants. It carried on business in India
with its
head office at Calcutta and a branch office at Bombay.
The second plaintiff, H. J. Leach, was employed during
the years 1933 to 1935 in the Bombay branch of the
said
Company.
Subsequent
thereto,
the
Company
closed its Bombay branch, and eventually wound up
its Calcutta ollice
as well, and thereafter its business
was taken over fintly by Ewing and Company and
then by the defendants. After he left the service of
Maitland Craig Lubricants Ltd., Mr.
Leach
started
business as seller of lubricants on his own account and
was importing them through the defendants.
On June
6, 1941, they entered into an agreement, Ex. A, under
which Mr. Leach was given an exclusive right to sell
lubricants of the make of Maitland Craig Lubricants
Ltd., within the limits of Bombay Presidency, Central
Provinces, Rajputana and such parts of Central India
and Hyderabad as might be determined by the defendants. The agreement was to continue for a period of
five years "unless sooner determined in the manner
hereunder
provided."
Clause
14
of
the
agreement
runs as follows :
"Notwithstanding anything hereinbefore contained
this agreement shall be terminable by either of the
parties hereto upon giving to the other three calendar
months previous notice in writing expiring at any time
but without prejudice to the rights and liabilities of
the parties respectively which shall have accrued prior
to such termination."
Clause 16 provides that the agreement was personal
to the selling agent, and that he was not to assign or
attempt to assign his rights thereunder without the
consent of the defendants in writing first obtained.
It
is common ground that the dealings between the parties
continued on the basis of this agreement during the
relevant period.
On March 18, 1944, the first plaintiff, which is a Joint
Stock Company, was incorporated under the provisions
S.C.R.
SUPREME COURT REPORTS
441
of the Indian Companies Act, and on March 30, 1944,
the second plaintiff assigned his business to it.
On
June 13, 1945, the defendants wrote to
the second
plaintiff that they were cancelling the agency constituted under the agreement dated June 6, 1941, as he had
assigned the same to the first plaintiff
without obtaining
their
consent
in writing
as
provided
therein.
Before that date, however, the defendants had placed
orders for import from America of certain goods which
the plaintiffs had required, but these goods were actually
received
by
them after the cancellation of the
contract.
The plaintiffs called upon them to deliver
those goods to them, but they refused to do so. Thereupon,
the plaintiffs
instituted the
present suit for
damages for conversion alleging that the goods
in
question were due to them under Government quotas
comprised in Nos. P. L. 1004 to
1007,
and that the
defendants who had ordered them on their behalf had
themselves no title to them. The plaintiffs also averred
that in importing those goods the defendants were
acting as their agents.
The defendants repudiated this
claim.
They contended that far from they being the
agents of the plaintiffs, it was the second plaintiff who
was their agent, and that the property in the goods
was with the
defendants
and that the
action for
damages for conversion was not maintainable.
The suit was tried by Shah J. who held that the
plaintiffs vvere not the agents of the defendants, that
the goods in question had been imported by the latter
on behalf of the former, and that in refusing to deliver
the same to them, the defendants were guilty of conyersion.
He accordingly passed a decree referring the
suit to the Commissioner for ascertaining the damages.
On appeal, Chagla C.J. and Gajendragadkar
J. held
that on the terms of the agreement dated June 6, 1941,
on which. the suit was based, the title to the goods
imported hy
the defendants vested in them, and that
it would pass to the plaintiffs only when the defendants
endorsed the shipping document in their favour, and
that as that had not been done, the claim for damages
on the basis of conversion was misconceived. They
accordingly allowed the appeal, and dismissed the
suit.
1957
L. J. Ltach a1Ul
Company Ltd
v.
Jardi~ Skinner
and Co.
Venkatarama
Ayyar J.
1957,
L.J. Lead and
Company Ltef.
v.
Jardine Ski,.,,,,
and Co.
VenkatMama
"'»"' J.
442
SUPREME COURT REPORTS
(1957]
Now, the contention of the appellants before us is that
on the facts proved, they were entitled to damages on
the basis of conversion.
There is no dispute as to the position in law.
Before
the plaintiffs can maintain an action in trover, they
must establish that they had title to the goods in question and that further they were entitled to possession
thereof when they called upon the defendants to deliver
them.
If the parties stood in the relation of sellers
and purchasers with reference to the transactions, then
the plaintiffs must show that the property in the goods,
which initially was with the defendants, passed to
them in accordance with the provisions of the Sale of
Goods Act.
If, however, the defendants imported the
goods as agents of the plaintiffs, then the title to them
would undoubtedly be with the latter, and the only
question then would be whether the former
were
entitled to retain possession, as they would be if they
had paid the price of the goods on behalf of the principal, and had not been reimbursed that amount. This
question, however, would not arise on the facts of this
case, as the defendants denied the title of the plaintiffs
to the goods, and there was no refusal by the latter to
pay the price.
The main
question
that arises
for
determination, therefore, is as to the relationship in
which the parties stood with reference to the suit
transactions.
It is conceded that to start with, it is the agreement,
Ex. A, that governs the rights of the parties. It is
therefore necessary to examine its terms to ascertain
the true relationship of the parties thereunder. It has
been
already mentioned
that under this agreement
Mr. Leach was constituted the selling agent of the
defendants in certain areas specified therein.
Under
Ex. A, the second plaintiff was not to sell the goods
below a certain price, and they were also to be sold
with the mark, Maitland Craig
Lubricants Ltd.
The
course of business was. that the second plaintiff used to
intimate to the defendants
his requirements.
They
would then import those goods in their own names from
America under c.i.f. contracts.
After importing
them,
they would fix their own price for
those goods and
S.C.R.
SUPREME COURT REPORTS
443
endorse the shipping documents in favour of the second
plaintiff, who would be entitled to clear them at the
harbour on payment of 80 per cent. of the price, the
balance of 20 per cent. being payable on the
delivery
of the goods by him to his purchasers. The sales to be
effected by the second plaintiff within the area to his
own customers were matters which concerned only him
and his purchasers.
The defendants had nothing to do
with them. Under cl. 6, the second plaintiff had to
"keep the value of his stocks at all times fully insured
against fire risk:"
Clause 13 is as follows :
"The relationship between parties hereto shall be
that of principal and principal only and the selling agent
shall have no authority whatsoever except such as may
be conferred upon him in writing by the firm to transact any business in the name of the firm or to bind the
firm by any contract, agreement or undertaking with or
to any third party."
In contrast with these terms, there is cl. 4, which
provides that the defendants would themselves supply
to the Indian Stores Department all their requirements
of
lubricants
within the territory allotted to the
second plaintiff, who was to act as their agent in clearing the goods and delivering them to the authorities.
And for this, the second plaintiff was to be paid a
commission.
It is clear that the agreement read as a whole is a
composite one consisting of two distinct matters. So far
as cl. 4 is concerned, the second
plaintiff was merely
an agent of the defendants.
As regards the other
clauses, the true relationship is, as stated in cl. 13, that
the second plaintiff was purchaser of the goods from
the defendants, and the conditions relating to the
minimum price at which they could be sold and the
marking of the goods with the name of Maitland Craig
Lubricants Ltd. were only intended to protect their
trade interests but that once the shipping documents
were endorsed by the defendants to the second plaintiff, he became the owner of those goods. The object
of the insurance clause was obviously to safeguard the
interests of the defendants with reference to the balance
price payable by the second plaintiff. In this case, we
1957
I
L. J. Leach and
Company Ltd.
v.
Jordi~ Skinneiand Co. -
V enkatarama
Ayyor ].
1957
L. J. Ua<h and
Company Ltd.
v.
.Jardine Skinner
and Co.
V enkataram a
A_vyar J.
444
SUPREME COURT REPORTS
[1957]
are not concerned with any goods consigned
by
the
defendants for supply to the Government under cl. 4
but with goods which were imported by them for meet·
ing the requirements of the plaintiffs. The relationship
of the
parties with reference to those goods, if it is
governed
by
this
agreement,
is
undoubtedly
that
neither party is agent of the other, and that the defend·
ants are the sellers and the plaintiffs are the pur·
chasers.
If so, the title to the goods would pass to the
plaintiffs only when the defendants appropriated them
to the contract, as for example, by endorsing the
shipping documents, and as that had not been done,
the claim for damages on the ground of conversion
would be misconceived.
The learned' Solicitor-General who appeared for the
appellants, did not dispute that this was the pos1t10n
under Ex. A.
But he contended that the relationship
of
seller and
purchaser created
by
the agreement
became modified when the Gcvernment introduced the
licence
system.
That
was
introduced
in
AugustSeptember, 1941, while the war was on, with a view to
regulate
and
control imports.
The system adopted
was that every importer was required to give a statement as to the extent of his import business during the
preceding years, and on the basis of that statement. a
licence was given to him to import up to a limit. On
September 26, 1941, the second plaintiff applied to the
Controller for a licence to import lubricants stating
that he had been doing that business for seven years
and giving particulars as to the yo]urnc of his business.
Sometime in November, a licence was gr8nted to him
by the Government.
The defendants also applied for
a licence to import lubricants based on the volume of
their business and obtained it.
That licence did not
include the quantity which they sold to the second
plaintiff, and
thus
the
two licences were mutually
exclusive.
Mr. Leach would have been himself entitled
under
the
licence to
import goods directly from
America, but he chose to import them through the
defendants as before, because under the terms of the
agreement, Ex. A, he would have to pay only 80 per
cent. of the price when clearing the goods; There was,
S.C.R.
SUPREME COURT REPORTS
445
however, this change in the character of the transaction, that whereas before the licence system the defendants were the purchasers from American Companies
under c.i.f. contracts and they then sold the goods to
the second plaintiff on a price-'fixed by them, under the
licence system the price payable to them was only
what they themselves had to pay to the American sellers
with an
addition by way of commission on the
transattion.
Now, the argument of .the appellants is that as they
were the persons entitled to import the goods under the
licern:r:
granted to them, in importing them on their
requisition the defendants must· be held to have acted
for them, and that the relationship belween them was
no longer one· of seller and purchaser under Ex. A but
of agent and principal.
To this, the answer of Mr.
Banaji, learned .. counsel for the respondents, was twofold.
He .contended firstly that in applying for and
obtaininfT the licence in his own name, the second
plaintif{:,vas merely .acting as the agent of the defendants, and secondly that the present
contention was
not raised in the plaint and was, therefore; not open
to the appellants. · On the first contention he referred
us to the correspondence which passed between the
parties at the relevat1t period.
On September 5, 1941,
th'.'. defendants wrote to the second plaintiff to send
particulars of certain shipments consigned to him so
that they could include them in their application for
licence, and on September 11, 1941, they further wrote
to him that those Poods were not to be included in his
application for )i~~nce.
But the second plaintiff was
obviously. not agreeable to it, and actually included
those Yery shipments in his application for licence dated
Sertember 26, 1941.
The defendants did not .pursue
the matter further, and wrote to the second plaintiff on
December 10, 1941,, to intimate to them the number
and date of his import licence and continued to import
goods for him on the basis of that licence. Counsel for
respondents relied on a letter dated December 11, 1941,
in which the defendants advised the second plaintiff to
join a group of oil merchants, which was to be formed
at Bombay, but that was obviously by way of advice
1957
L. J. Leach and
Company Ltd.
v.
Jardine Skinner
and Co.
Venkatarama
Ayyar J.
1957
L. J. Leach and
Company Ltd.
v.
Jardint Skinntr
and Co.
Y enkatarama
..lyyar J.
446
SUPREME COURT REPORTS
[1957)
to him as a customer. This evidence is too inconclusive and too slender to support the contention that the
second plaintiff obtained the licence as the agent of the
defendants.
On the other hand, if the true position of ·
the second plaintiff under Ex. A was
that he was a
purchaser of goods, then the sales by him of those goods
were as owner and the licence issued to him on the
basis of those sales must have been given to him in his
own right and not as agent of the defendants.
This
was the finding of Shah J. and that has not been
reversed on appeal, and we are in agreement with it.
It is next contended that the entire plaint is framed
on the footing that the
rights of the parties arc
governed by Ex. A, that there is no averment therein
that that agreement had been cancelled or modified,
and that a new agreement had been substituted after
the licence system was introduced, that the evidence of
Mr. Leach in the box was also that Ex. A was in force
throughout the period, and that therefore it was not
open to the appellants now to contend that the relationship of seller and purchaser under Ex. A had been
altered into one of agent and principal. It is true that
the plaint proceeds on the basis that Ex. A is in force,
and there is no allegation that it had been modified.
But Ex. A had not been wholly abandoned. It was
still in force governing the relationship of the parties in
respect of various matters such as delivery of goods on
payment of EO per cent. of the price.
The plaint does
refer ·to the introduction of the licence system, and the
defendants clearly knew as much of the true position
thereunder as the plaintiffs, and there could be no question of surprise. Under the circumstances, if the rights
of the parties had to be determined on the basis of the
licence system, we would have hesitated to non-suit the
appellants merely on the ground that the effect of that
system had not been expressly stated in the plaint.
But then, the licence system itself came to an end
in March-April, 1942, and was replaced by what is
known as "Lease and Lend" scheme.
It was under
this scheme that the goods which form the subjectmatter of this litigation were imported, and we have
therefore to examine what the rights of the
parties
S.C.R.
SUPREME COURT REPORTS
447
are with reference to the incidents of that scheme
taken
along with Ex. A, which is admitted by the
appellants to have been in force.
This scheme was
introduced by the Government of India
as
a war
measure to facilitate the import of certain essential
goods and to conserve them for the effective prosecution of the war.
Oil and lubricants were among
the goods which were controlled under this scheme.
Ul!der it;
the
Government prohibited
the
direct
import of oil and lubricants from America through
private
agencies,
whether
individuals,
firms
or
companies and took upon itself to import the required
quantity.
An association of jmporters and dealers in Calcutta
called
the
Central Lubricants Advisory
Committee
(C.L.A.C.) was formed, and importers were to write to
the Committee what quantity they required to be
imported on their behalf.
This Committee was a
private body,
and
served
as
a liaison between the
importers and the Government.
A similar Committee
was formed at Bombay called the Bombay Lubricants
Advisory Committee (B.L.A.C.).
The procedure adopted in the import of goods was this : the importers
were to state
their
requirements to the Committee
which sent the same to the Government. Then on
mt1mation
given by
the Government authorities, the
dealers would have to make deposits on account of
the price to be paid for the goods.
The Government
had a purchasing agent in America and he would be
required by them to purchase the requisite goods and
to arrange to get them transhipped to the destinations
in
India
mentioned by
the several dealers.
The
shipping documents would be taken in the name of
the Government and on payment of the bills endorsed
over to
the importer for clearance at the harbour.
The features of the system to be noticed are that it
was the Government who was the importer of the
goods and
the dealers became entitled to the goods
only
on the shipping documents being endorsed to
them by the Government.
Now, so far as the plaintiffs are concerned, the facts
are that they made no deposits with the Government,
1957
L. J. Ltach and
Company Ltd.
v.
Jardine Skin"'1'
and Co.
Ven katarama
Ayyar ].
L. J. Lea.ch and
Company Ltd.
v.
Jardine Skinner
and Co.
Venkatarama
Ayyar ],
SUPREME COURT REPORTS
[1957]
and
their names were not in the list of traders for
whom
the Government imported the goods.
They
h:id direct
dealings
only
with the
defendants
and
sent
their requirements
to
them.
The defend:ints
would in their application to the Government include
what the plaintiffs required as well as what they themselves required :ind make the necessary deposits for
all the goods.
But all that would stand only in their
name.
Though it would
be
possible to ascertain by
reference
to
the
correspondence between the
parties
which of tbe orders placed by the defendants with the
Government relatecl to the requirements of the plaintiffs,
so far as the Government itself was concerned
it knew only of the defendants as importers, and it
was in their name that it would endorse the shipping
documents, and it was only when the defendants in
their turn endorsed the same to them that the plaintiffs
would get title to the goods,
ond
the
evidence
of
Mr. Le:ich makes it clear that this had not been done,
os regards the shipments with which
the suit is
concerned. This is what he says in his deposition.-
"The goods were shipped all to the order of the
Government
of
India .... Separate
documents
were
drawn up in respect of the consignments which were
to be supplied to each of the trader according to his
rcquiremrnt submitted
to
Government.
The
traders
who submitted their requirements cleared the goods
by paying the amount of the bills .... The Government
did not make anv allocation to me.
I depended on
the defendants fer
obtaining my requirements from
the Government.
I did not make any cash deposit
as required of the dealer. I made no deposit with the
Government in
respect
of
the quantity
which
I
wanted.
The
entire deposit was
made with the
Government by
the defendants even in respect of my
requirements....
The defendants
endorsed over
the
documents in my favour for goods which were meant
for me. . . . Excepting
for the
admitted
portions the
documents for remaining part of PL. 1004 to 1007
were not handed over to me or endorsed in my favour,
except .to the extent to which the goods were delivcreU."
S.C.R.
SUPREME COURT REPORTS
449
The evidence of Sir John Burder for the defendants
was "the
shipping
documents were received in the
name of the defendants".
It is thus clearly established that with reference to the goods comprised in P.L.
1004 to 1007, which formed the subject-matter of the
suit, the shipping documents had not been made out
in the name of the plaintiffs, nor had the defendants
in whose names they were taken, endorsed the same
to them. That being so, unless the plaintiffs established that the defendants were importing the goods
as their agents, they would not have title to them,
and the claim for damages on the basis of conversion
mmt fail.
We should mention that the appellants relied on
some
of
the letters written by
the defendants as
showing that they recognised the plaintiffs as having
the title to the goods.
Thus, on August 12, 1944, the
defendants wrote to the plaintiffs "We confirm that
the consignment is for you", and on Mar.ch 24, 1945,
they wrote, "We enclose herewith a statement show·
ing quantities and grades that have been ordered by
Government on
your account against
order
P.L.
1006/10".
But these statements are quite consistent
with the position of the defendants as sellers who had
· ordered the goods on the requisition of the plaintiffs,
and do not import that title thereto had passed to
them, which could be only after the goods came into
existence
and
were
appropriated.
That
did not
happen in this case, and the shipping documents
continued in the name of the defendants. We therefore
agree with the learned Judges
that on the pleadings
and on the evidence the claim for damages on the
footing of conversion must fail.
That would entail the dismissal of this appeal, but
the plaintiffs have applied to this Court for amendment of the plaint by raising, in the alternative, a
claim for damages for breach of contract for
nondelivery of the goods.
The respondents
resist the
application.
They
contend
that
the
amendment
introduces a new cause of action, that a suit on that
cause of action would now be barred by limitation,
that the plaintiffs had ample opportunity to
amend
1957
L. J. Leach and
Company i.td.
v.
Jardine Skinner
and Co.
Venkatarama
Ay_yar J.
1957
L. J. Leach and
Company Ltd.
v.
]ardim Skinner
and Co.
Venkatarama
Ayya' J.
450
SUPREME COURT REPORTS
[1957]
their plaint but that they failed to do so, and that
owing to lapse
of time the defendants would be
seriously prejudiced if this new claim were allowed to
be
raised.
There is
considerable force in the objections.
But after giving due weight to them, we are of
opinion that this is a fit case in which the amendment
ought to be allowed.
The plaintiffs do not claim any
damages for wrongful termination of the agreement,
Ex. A, by the notice dated June
13,
1945.
What
they claim is only damages for non-delivery of goods
in respect of orders placed by them and accepted by
the defendants prior to the termination of the agreement by that notice.
Clause 14 of
the agreement
expressly
reserves
that right to the plaintiffs.
The
suit being founded on Ex. A, a claim based on cl. 14
thereof cannot be said to be foreign to the scope of
the suit.
Schedule E to the plaint mentions the several indents in respect of which the
defendants had
committed default by refusing to deliver the goods,
and the damages claimed are also stated therein. The
plaintiffs seek by
their amendment only
to
claim
damages ,in respect of those consignments. The prayer in the plaint is itself general and merely claims
damages.
Thus, all the allegations which are necessary
for sustaining a claim for damages for breach of
contract are already in the plaint. What is lacking is
only the allegation that the plaintiffs are, in the alternative,
entitled
to
claim
damages
for
breach of
contract by
the
defendants
in not
delivering the
goods.
It is no doubt true that courts would, as a rule,
dedine to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the
date of the application. But that is a factor to be
taken into account in exercise of the discretion as to
whether amendment should be ordered, and does not
affect the
power of the court to order it, if that is
required in the interests of justice.
In Chrtran Das
v. Amir Khan(') the Privy Council observed:
"That there was full power to make the amendment cannot be disputed, and ·hough such a power
(1) [1920] 47 I.A. 255.
S.C.R.
SUPREME COURT REPORTS
451
should not as a rule be exercised where the effect is to
take away from a defendant a legal right which has
accrued to him by lapse of time, yet there are cases
where
such considerations are out-weighed
by
the
special circumstances of the case."
Vide also Kisan Das v. Rachappa(').
In the present case, apart from the contents of the
plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying
with the terms of cl. 14.
The ground on which they
repudiated the contract was that the second plaintiff
had assigned his interests to the first plaintiff ; but the
record shows that subsequent to the assignment the
defendants had business
transactions with both the
plaintiffs and therefore the ground for cancellation
appears to have been a mere device to deprive the
plaintiffs of the benefits of the orders which they had
placed. We are of opinion that the justice of the case
requires that the amendment should be granted.
The
plaintiffs will accordingly be allowed to amend
t.'1e
plaint as follows :
"12(a) In
the alternative and without prejudice
to the claim on the footing of conversion, the plaintiffs
say that by reason of the facts aforesaid, there was a
contract
between the parties whereby the defendants
undertook to supply and deliver to the plaintiffs (or
either of them) the goods ordered out by Government
on their (the plaintiffs') account and included in the
quotas PL. 1004-PL. 1007. The said goods arrived in
Bombay, but the defendants failed and neglected to
deliver the same though demanded, and in fact repudiated their obligation to deliver.
The plaintiffs say
that they were always ready and willing to pay for
and take delivery of the same.
The defendants at all material
times well knew
that the plaintiffs had
purchased the same for resale
and for fulfilment of contracts of sale and supply. The
plaintiffs claim damages as per particulars."
This appeal must accordingly be allowed, the decree
under appeal set aside, and the suit remanded for
(r) [1909] I.L.R. 33 Bombay 644.
1957
L. ]. Leach and
Company Ltd.
v.
Jardine Skinntr
and Co.
V enkatorama
Ayyar J
'957
L. J. Leach and
Company Ltd.
v.
Jardine Skinne1'
and Co.
Venkatarama
Ayyar J.
January, 29.
452
SUPREME COURT REPORTS
[1957]
rehearing to the trial court. The defendants will file
their written statement to the amended claim and the
suit will be tried and disposed of in accordance with
law.
There remains the question of costs.
As the plaintiffs are getting an indulgence, they must pay the costs
of the defendants both in the suit and in the appeal to
the Bombay High Court.
So far as costs of this appeal
are
concerned,
as the defendants persisted in their
contention that the plaintiffs were only acting as their
agents,
a contention which, if upheld, would have
furnished a conclusive answer to the amended claim as
well, we direct the parties to bear their own costs m
this Court.
KAMALA DEVI
v.
Appeal allowed.
Case remanded.
BACHO LAL GUPTA
[S. R. DAs C. J., BHAGWATI and S. K. DAs JJ.]
Hindu Law-Gift of immoveable property by widow-Daughter's marriage dotvry-Ante-nuptial pro1nise-Deed
executed and
registered after marriage-Validity-If binding on the reversionersTrnnsfer of Property Act (IV of 1882), s. 123-Hindu Succession
Act, 1956 (XXX of 1956), s. 14.
In
fulfilment
of
an
ante-nuptial
promise
made
on
the
occasion of the settlement of the terms
of
marriage
of
her
daughter, a
Hindu
widow,
governed by the Benares School of
Hindu Law, executed a registered deed of gift in respect of 4
houses
allotted
to her share
by a partition decree, in favour of
her daughter as her marriage dowry about two years after the
marriage.
The partition decree gave her a right to the income,
but no right to part with the corpus of the property to the
prejudice of the reversioners.
Her s.tep-sons brought a suit for a
declaration that the deed r.f gift was void and inoperative beyond
her lifetime and could
not
bind
the
reversioners.
The
trial
court found that the gifted properties constituted a
reasonable
portion of the estate, but that the gift not having been made at