SADHUSARAN SINGH Vs. W B STATE ELECTRICITY BOARD

JUDGEMENT

(1.) This appeal, at the instance of the plaintiff, is directed against the judgment and decree of the learned Additional District Judge, Darjeeling in O. C. Appeal No. 7 of 1973 dismissing the plaintiff's suit after reversing the judgment and decree of the learned Subordinate Judge, Darjeeling in O.C. Suit No. 22 of 1971.

(2.) The plaintiff instituted the suit for declaration of title to certain goods and for permanent injunction. The plaint case was that by a sale notice dt. March 3, 1970 tenders were invited by the defendant No. 2, Superintending Engineer (South), Jaldhaka Hydel Project of the defendant No. 1, West Bengal State Electricity Board, for the sale of 450 Metric Tonnes of M. S. Rounds of 28 dia lying at Chapramari Store Yard and 150 Metric Tonnes of M.S. Rounds of 37 dia lying at Jhalong Store Yard of the defendant No. 1. The plaintiff submitted his tender for the same and the said tender was accepted on May 4, 1970 and a contract of sale of the aforesaid articles was made between the plaintiff and the defendants and as a result of the sale the title to the goods passed to the plaintiff as the contract was for the sale of specific goods in a deliverable state. According to the agreement between the parties, the payment of the price of the goods and the delivery thereof were postponed and it was also agreed that payment would be made in six instalments within 90 working days from the date of the receipt of the release order and the period of delay in lifting the materials due to reasons beyond the control of the plaintiff would be excluded. The plaintiff removed the entire quantity of 150 Metric Tonnes of M. S. Rounds of 37 dia from Jhalong Store Yard and he had also removed 200 Metric Tonnes out of 450 Metric Tonnes of M. S. Rounds of 28 dia from the Chapramari Store Yard. The plaintiff in spite of his best efforts could not remove the balance quantity of 250 M.T. of M.S. Rounds of 28 dia from Chapramari Store Yard due to circumstances beyond his control because of heavy breaches on the road due to rain, landslide and other causes. It was not possible for the plaintiff to obtain the necessary transport communication for the carriage of the said materials. Due to sudden failure of electricity at Jaldhaka Hydel Project of the defendant No.1, the running of the factory of the plaintiff had to be suspended and the plaintiff was granted extension of time till January 31, 1971. As the time was too short, the plaintiff could not make arrangement for removal of goods. The plaintiff requested the defendant No. 2 to grant further extension of time for a reasonable period but the said prayer was refused and the defendant No. 2 by his letter dt. April 20, 1971 informed the plaintiff that the sale order of the balance quantity of the goods which had not been lifted had been cancelled. Thereafter the plaintiff made several representations to the defendants against the order of cancellation and the plaintiff was assured that the order would be reconsidered. However, in utter disregard of such assurance, the defendants were trying to remove the remaining goods from the Store Yard for reselling to other parties. The purported order of cancellation was illegal, invalid and without jurisdiction as under the contract of sale the property in the goods in question had duly passed to the plaintiff. The plaintiff was thus compelled to institute this suit for declaration of his title to the balance quantity of 250 M. T. of M. S. Rounds of 28 dia lying at Chapramari Store Yard and for permanent injunction restraining the defendants from removing the said goods and from reselling the same.

(3.) In their joint written statement the defendants denied that the property in the goods passed to the plaintiff on acceptance of the tender. The defendants further denied that the contract in question was for sale of specific goods in a deliverable state. The contract was nothing but an agreement to sell. As the transfer of property in this case was to have taken place at a future time and subject to some conditions to be fulfilled the property in the goods thus did not pass to the plaintiff as alleged. The goods were not specific goods and they were not in a deliverable state. The disputed M. S. Rounds were kept at the Store yard of the defendant along with other M. S. Rounds which were not covered by the contract. In the work order, it was clearly stated that the whole quantity of M. S. Rounds covered by the contract would be lifted by the plaintiff on advance payment for the materials within the stipulated time. The property in the goods as well as the possession of the same remained with the defendants till full value of the materials was deposited with the defendants. The plaintiff lifted 200 M.T. of M. S. Rounds of 28 dia and 150 M.T.of M. S. Rounds of 37 dia but the plaintiff did not take delivery of the remaining M. S. Rounds of 28 dia by paying the price. The plaintiff failed to fulfil his obligations in spite of extension of time. At the request of the plaintiff the original stipulated time was extended from time to time till March 31, 1971 but still the plaintiff could not fulfil his obligations. The contract was legally cancelled as he failed to lift the articles within March 31, 1971. The plaintiff was not entitled to declaration and permanent injunction prayed for.