Captain G{lflpati v. The State of Ajmer

The Appeal Court accepted this position and further found that in the instant case "the mills who held the to B, B to the defendant, goods sold them to A, A <lefendant to the plaintiff, plaintiff to C and C to contract. ·shipper. This is what is · known as a chain It is admitted by the plaintiff, that the mills give delivery order to A. A endorses it to B, B to defendant, defendant to the plaintiff and so on". The question that falls to be determined on be called and the respondent settlement facts and circumstances contracts <ontracts mentioned above involving between the appellant the actual delivery of possession of It was common ground that the contracts did not pro vide for the payment or receipt of margin. It was also common ground that the respondent did not pos sess 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 actual the sale or purchase of jute goods delivery of possession the contention which was vehemently urged on behalf of the respon transactions dent in the Courts below was that the orders were purely speculative, orders passed between did not represent the goods and the thereof intermediate parties did not actual delivery that mere the parties, which delivery transfer involve as between of possession thereof and the goods. the goods involving delivery 1954 Duni Chand Rataria v. Bhuwalka Brothers lld. Bhagwati ]. 1078 SUPREME COURT REPORTS [1955] differences parties. in rates were only paid or received by the The appellant on the other hand contended that the· the goods, that each delivery orders represented to his cessive buyer paid immediate seller price of the goods represented by the delivery order in cash before the relative delivery order was endorsed m his the title to tlle goods but actual delivery of possession of and that in any event when the goods were deli tile vessel or actual delivery was taken by the ultimate buyer the giving and taking of actual delivery of possession of all along the chain at the same moment. thus obtained not only favour and there was alongside 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 are· used m tile ordinary course of business authorising the endorsee to receive the goods which they repre sent. The learned Trial Judge furtller observed :- cash payment and Similar shipping "Now visualize tile long chain contracts m IS one of the connect- immediate seller and as buyer it gives. instruction the mills. The: Such the contract between the instanti it chain contracts. the defendant and its. the defen which the defendant's contract ing links. The defendant buys from seller and sells to its immediate buyer. As is liable to give and as buyer it 1s entitled delivery. As seller it receives instructions. shipping 1s given by each link until it reaches mills deliver tile goods alongside the steamer. delivery is in implement of mills and is also m implement of each of the including the contract between immediate buyer and the contract between dant and its immediate seller. Not only does" the mill. give and its immediate buyer take actual delivery but eo instanti each middleman gives actual delivery. Simultaneously actual delivery of possession of the jute goods from its im mediate seller and gives actual delivery of possess1011 the defendant immediate buyer. But eo , , r ... l r r r ' - 'v • S.C.R. SUPREME COURT REPORTS 1079 immediate buyer. Prima facie at of jute goods to its the moment of the delivery the steamer there is appropriation and the passing of the property in the goods and the giving and taking of actual deli very of possession the chain at the thereof all along same moment". alongside 1954 Duni Chana Rat aria v. Bhuwalka · Brothers Ua. Bhagwati J. The learned Trial Judge then referred to the follow ing 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 business in gunnies in Calcutta the present case the sale being free alongside, perty prim a f acie passes when the goods are priated by delivery alongside m contracts," and added:- export conducted, ..... In the pro implement of It is said that there "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 is physical delivery of the · goods alongside the vessel the actual custody of goods and necessarily changes is no actual physical the goods. delivery of the goods by the defendant himself. The the dealer Legislature, however, does not say that must himself give actual delivery of I the statute words which are not there cannot read in 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 Legisla ture simply insists that the sales and purchases of the dealer involve actual delivery of possession of the jute I do not see why the sales and purchases do goods. such actual delivery not involve actual delivery is given not by performance of and in relation to the sales and pur chases of the dealer. Even the buyer and the seller and gives of jute goods over the counter rarely takes manual delivery of the goods. Very often such manual delivery the dealer but by a third party taken not by the buyer the goods. is given and (1) f1938] L. R. 65 J. A. 263. 13-89 S. C. Jndia/59 ' / -, • "l " / _j I( - • ' ' ,, ' - •' -. '"' ' ')- . ,, / - .. - y ,./ 1954 Duni Chand Rataria v. Bhur, valka Brothers Ltd. .:Bhagwati J. 1080 SUPREME COURT REPORTS [1955] respective servants and agents. seller but by their I do not see why instead of the buyers' and sellers' em taking delivery of ployees and servants giving and the goods somebody else on their behalf gives and takes delivery; such delivery possession of the goods". is not actual delivery the delivery order over to B and took 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. it that none · of the parties in the chain They took 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 en dorsed difference, B in his turn endorsed the delivery order and so on to the defendant and took and concluded that nobody was concerned to pay the actual price or take delivery of the goods except 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 succes sive buyers paid to his immediate seller 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 difference the full contrasted emphasis on The learned Judges of the Appeal Court also the words "actual delivery unwarranted of possession" and actual delivery with symbolical or constructive delivery and held only actual delivery of possession meaning / thereby physical or manual delivery was within intend ment of the Ordinance. Delivery has been defined in section 2(2) of the Indian Sale of Goods Act as mean from one person ing voluntary transfer of possession to another and if nothing more was delivery would not only include actual delivery but also sym bolic 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 Ap peal Court as indicative of the intention of the - Gov ernment to include within the scope of the exemption <lnly possession delivery actual 1954 Duni Chand Rataria v. Bhuwalka Brothers Ltd. Bhagwati ]. - - S.C.R. SUPREME COURT REPORTS · 1081 It constructive contrasted with symbolical 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 intended to take delivery differences only and never from entering any circumstances, market. Provided a person habitually dealt m 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, be cause otherwise having regard to the ordinary course of business, business in jute goods would become lutely impossible. The manufacturer of jute goods does not come normally into direct contact with the through a chain of contracting ts only shipper. the goods parties that the shipper obtains from the delivery of possess10n manufacturer and if only actual delivery as contrasted with symbolical or constructive were contemplated it would be impossible to carry on If the narrow construction which was the business. put by the Appeal Court on the expression "actual delivery of possession" was accepted it would involve taking each one of the intermediate parties actually physical or manual delivery of the goods turn givmg physical or sellers of the goods which they had thus manual delivery an even obtained to tuality could never have been contemplated by interpretation Government the only of the expression "actual delivery of possession" be that actual delivery as contrasted with mere deal intendment of the ings in differences was within the Ordinance and such actual delivery of possession m cluded within its scope as well as con structive delivery of possession. their immediate buyers. Such and agam m their symbolical reasonable Once this conclusion ts reached ualise the course of events. The mate's delivery orders as the case may be, represented goods. The sellers handed over these documents against cash payment, the buyers obtained these documents m it ts easy to vis receipts or the the buyers delivery of token of 1954 Duni Chand Rataria v. Bhuwalka Brothers I.Jd. Bhagwati :J. 1082 SUPREME COURT REPORTS [1955] the goods. They in turn passed these possession of documents from hand to hand until they rested with the ultimate buyer who took physical or manual deli those goods. The constructive very of possession of delivery of possession which was obtained by the" in into a physical termediate parties was thus or manual deli, ery of possession ultimate process of each analysis eliminating of the intermediate parties giving actual delivery of possession of the goods in the narrow sense of delivery physical thereof. translated the unnecessary or manual taking and in his It is necessary to remember in this connection that the words used in section 2(1) (b) (i) are "involving the thereof". The word actual delivery of possession "involving" in the context means resulting satisfied if the chain contracts this condition would be in actual deli as entered into in the market resulted very of possession of goods in analysis. The Appeal Court was therefore clearly in error when "actual it put a narrow construction on the expression transactions delivery of possession" and held that the in no event were purely speculative and the parties contemplated actual delivery of possession goods. The learned Trial Judge was in our opinion the whole position on correct in his appreciation of facts as well as in law and in negativing the conten tion of the respondent. the ultimate In view of this conclusion it is unnecessary to con sider the argument which was submitted before ·us based upon the definition of "documents of title" the provisions of section 30, proviso section 2(4) and to section 53(1) of the proviso to section 36(3) and the Indian Sale of Goods Act tl1at all the documents of title enumerated in section 2 ( 4) were assimilated the ·docu to a bill of lading and a mere tantamount ments of title in favour of a buyer was to a represented transfer of possession of the goods thereby. transfer of The contention that the Ordinance was ultra vires was not seriously pressed before us. We may however add that the Appeal Court rightly held - ;r • - '• 1954 Duni Chand Rataria .,. I Bhuwalka Brothers lJd, Bhagwati J. 1954 Decembet 3. 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; legislate on Provincial Legislature was competent that topic. lending ahd money lenders'', and therefore The result the appeal will be allowed, the decision of the Appeal Court will be re the Trial Court in versed and the decree passed by 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 concert Common intention-Same or similar intention-Distinction between. It is well-settled that common intention in s. 34 of Indian Penal Code presupposes prior concert. It requires a pre arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in further ance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simulta neously attack a man and each can have the same intention, namely separate the intention to kill, and each can 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 for the act of any of the others; and if the prosecution convicted 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. individually inflict a 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 It could arise and be formed suddenly. But there must required. 139 .