SANKARALINGA NADAR Vs. CHACKO

JUDGEMENT

(1.) These appeals arise out of O.S.Nos.207 and 206 of 1957 respectively on the file of the Court of the Subordinate Judge of Quilon.These suits and two other similar suits were tried together and decrees were passed in favour of the different plaintiffs in all of them.These appeals have been preferred by defendants 5 to 9,who are the same in both the suits.In A.S.No.502 of 1958 the legal representatives of the plaintiff are the contesting respondents and in the other appeal the plaintiff is the contesting respondent.In A.S.No.502 of 1958 the 3rd defendant,namely the agent of the Quilon branch of the Pandian Bank Ltd .,has filed a memorandum of cross objections,in which,thoughsome grounds have been raised on the merits of the case,court fee appears to have been paid only on the costs disallowed to the Bank by the lower court.

(2.) The facts leading to the appeals may be briefly narrated.The 1st defendant in both the suits belonging to Virudhunagar was a dealer in oil at Quilon and the 3rd defendant Bank had been giving accommodation to him for his business.The 2nd defendant in both the suits,who was the agent of the 1st defendant,entered into contracts with the plaintiffs in both the cases on 26th February and 1st March 1952 respectively for the purchase of coconut oil.On 4th March,200 tins of oil were received from each of the plaintiffs and cheques for their prices drawn on the Bank were given to them.The goods were then removed in boats to Quilon.On 6th March 1952,the cheques were dishonoured by the Bank and by that time both defendants 1 and 2 left the State for good.Agents of the plaintiffs were immediately sent to Quilon to intercept the goods in transit and to take possession of them.But when the boats reached the jetty at Quilon,an employee of the Bank was present there,at whose instance the goods were removed to their godown,in spite of protests by the agents of the plaintiffs.The plaintiffs thereafter filed the suits on 12th and 8th March respectively.They applied for attachment of the goods in the godown,which was effected on 25th March 1952 and the goods were sold and the money was brought to court.In the meantime,proceedings in insolvency were started against the 1st defendant on 31st March 1952 in the court of the Subordinate Judge of Ramanathapuram in the Madras State.The 4th defendant in both the suits is the Official Receiver,Ramanathapuram and defendants 5 to 9 are the trustees in the scheme of composition entered into between the insolvent and his creditors.

(3.) The learned Advocate General,on behalf of the appellants in both the cases,has contended that S.11 of the Specific Relief Act has no application to the cases and therefore,in view of the finding of the lower court,it should have dismissed the suits.Mr.Joseph Vithayathil appearing for the plaintiff respondent in A.S.No.503 of 1958 has fairly conceded that the decision of the lower court that S.11 of the Specific Relief Act applies is not sustainable and the decision cannot be supported on that ground.He has attempted to argue that the property in the goods did not pass in these cases to the vendee until cash was paid.According to him,the boatmen were either agents of the plaintiffs or were common carriers.The evidence in the cases does not justify this plea and therefore,I find difficult to accept this contention of Mr.Vithayathil.In the light of the evidence in the cases,I am inclined to agree with the lower court that the vendee's men went and took possession of the goods and engaged the boatmen and sent the goods to Quilon on the responsibility of the vendee.If so,it is clear that the property in the goods passed when the vendee's men got delivery of them and passed the cheques.