SUJATA BASU Vs. PRAGATI ENGINEERING PVT. LTD.

JUDGEMENT

(1.) This Appeal No. 199 of 2004 is directed against the judgment and decree passed by the learned Judge, 13th Bench of the City Civil Court at Calcutta, on 28th day of May, 2003, in Money Suit No. 580 of 1992.

(2.) Plaintiff/appellant carries on trade under the name of M/s. Chemisynth and manufactures amongst other a chemical foam compound used for extinguishing fire. Defendant/respondent No. 1 carries on business in supply of different commodities including the aforesaid chemical and other materials to its customers at different places including Gujarat State Electricity Board. Defendant/respondent No. 2 happens to be the carrier. The defendant/respondent M/s. Pragati Engineering placed orders for supply of 12 thousand liters of foam compound in M.S. Drums in the year 1989/90. In course of supply the same was handed over in 37 drums to the aforesaid carrier in good and sound condition as per consignment note dated 16.7.1991. The consignment was set to the Boroda as per instructions and necessary bills were also sent through bank as per agreement in between the parties i.e., the plaintiff/firm and Pragati Engineering. The consignment despite reaching Boroda respondent No. 1 did not retire the documents from the bank and pay the prices of the materials sold to it. There were several correspondences between the parties. Eventually no payment was made, hence the suit for the cost of the materials to the extent of Rs. 1,29,600.00 together with interest at the rate of 18 percent from the date of discharge, i.e. 16.7.91 amounting to Rs. 33,049/- comes to a total claim of Rs. 1,62,649.64 paise. The aforesaid claim was contested by the defendant No. 1 contending inter alia that no intimation was sent to it in respect of arrival of the said consignment nor was any test certificate sent to the said consignee as they did not have the knowledge of plaintiff sending the document to its bankers. They are in no way connected with the same as to what happened between the plaintiff/appellant and the defendant/respondent No. 2, the carrier.

(3.) On the aforesaid pleadings of both the parties, learned Court below framed as many as 12 issues and after trial dismissed this said suit on the grounds amongst others that in the consignment challan note i.e., exhibit 8, the consigner and the consignee being the same and that under Sec. 23(2) when the seller reserves the right of disposal of the property the buyer is not entitled to appropriation of the goods to the contract and that mere delivery of the goods to the agent or to the bailer is not sufficient to say that the goods passed on to the buyer. It has also been observed that as per Sec. 23(1) if there was assent by both the sides then in the stated circumstances the goods would have passed to the buyer but in the instant case no such thing was found, hence the dismissal.