COMMISSIONER OF SALES-TAX, EASTERN DIVISION, NAGPUR versus HUSEN ALI ADAMJI AND CO.

April 2z.

702

SUPREME COURT REPORTS

[1959] Supp.

THE COMMISSIONER OF SALES-TAX, EASTERN DIVISION, NAGPUR v. HUSEN ALI ADAMJI AND CO. (S. R. DAS, C. J., N. H. BHAGWATI and M. liIDAYATULLAH, JJ.)

Sales Tax-Contract of

sale-Construction-Unascertained goods-Levy of tax on goods sent by rail-Place where property in goods passes-Place of appropriation on delivery-Indian Sale of Goods Act, I930 (III of I930), ss. 4, I8, 23, 33, 39-Central Pro vinces and Berar Sales Tax Act, I947 (C. P. & Bcrar XXI of I947), s. 2(g), Explanation II.

The respondent company was a dealer in matchwood called "sawar" and his place of business was situate in Chanda in the erst,vhile Central Provinces. Pursuant to an agreement between the respondent and a match factory, the former loaded diverse quantities of "sawar" logs on railway wagons and despatched the same by rail from Chanda and other railway stations in the Central Provinces to Ambernath, a town in the erstwhile Pro vince of Bombay. Under cl. 4 of the agreement the goods to be supplied under the contract shall be despatched by the contractor from certain railway stations within the Central Provinces, while cl. 2 reserved the right of the consignee to examine the goods on arrival at Ambernath and to reject the same if they were found, in the opiniqn of the factory manager, not to con form with the specifications. Clause 6 provided that the goods shall be measured under the supervision of the factory's repre sentative, the decision of the factory manager at Ambernath being binding on the contractor, and by cl. 7 the prices of the goods shall be·" F. 0. R. Ambernath ". The course of dealings between the parties was that on arrival of the logs at Ambernath the logs were inspected and measured by the factory manager and the prices, calculated at the agreed rates, were paid to the respondent's agent at Bombay. The question was as to when and where the property in the logs passed from the respondent to the consignee and whether the respondent was liable to pay sales tax under the provisions of the.Central Provinces and Berar Sales Tax Act, 1947· At the date when the agreement was entered into, the logs were unascertained goods. There was also no evidence that at that date the particular logs delivered there under were in the Central Provinces in the shape of logs at all. The sales tax department levied the tax on the respondent on the grounds, inter alia, that (1) the property in the logs passed from the respondent to the factory consignee under s. 23 of the Indian Sale of Goods Act, 1930, when the logs were loaded in the wagons at railway stations within the Centra 1 Provinces and the railway

(2) S.C.R. SUPREME COURT REPORTS

703

receipts taken in the name of the factory were forwarded to the latter, and that (2) in any case, as the logs were in the Central Provinces at the date when the contract for sale was made, the Commissioner of transfer in them must be deemed to have taken place there under Explanation II to s. 2(g) of the Central Provinces and Berar Sales Tax Act, 1947·

Sales Tax v. Husenali

x959

Held : (1) that on a proper construction of the contract as a Adamji 0- Co.

whole the intention of the parties was that the respondent would send the logs by rail from the different stations in the Central Provinces to Ambernath where the factory manager would inspect, measure and accept the same if in his opinion they were of the description and quality agreed upon. Conse- quently, as the respondent sent the logs and left it to the factory to appropriate to the contract such of them as they accepted as of contract quality and description, the property in the logs did not pass to the buyer by the mere delivery to the railway for carriage but passed only at Ambernath when the logs were appropriated by the factory with the assent of the seller within the meaning of s. 23 of the Indian Sale of Goods Act, 1930.

(2) that Explanation II to s. 2(g) of the Central Provinces & Berar Sales Tax Act, 1947, was not applicable to the case, because under the Explanation the goods, in respect of which the contract of sale is made, must, at the date of the contract be in existence in the Central Provinces, that is to say, that the goods must at the date of the contract be there in the form in which they are agreed to be sold and there was no evidence, in the present case, for this.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

13 of 1958.

Appeal by special leave from the judgment and order dated June 29, 1954, of the former Nagpur High Court in Misc. Civil Case No. 219 of 1952.

R. Ganapathy Iyer and D. Gupta, for the appellant. M. 0. Setalvad, Attorney-General for India, K. G. Chondke, J.B. Dadachanji and K. K. Raizada, for the respondents.

I. N. Shroff, for the Intervener (State of Madhya

Pradesh).

'

1959. April 21. The Judgment of the Court was

delivered by

DAS, C. J.-This is an appeal by special leave against the order of the High Court of Judicature at Nagpur dated June 2!J, 1954, answering against the

Das c. J.

704

SUPREME COURT REPORTS [1959] Supp.

•

r959

appellant certain questions r~ferred to it by the Board of Revenue under s. 23(1) of the Central Provinces & Cpmmissioner of Berar Sales Tax Act, 1947 (hereinafter referred to as "the Act"). The reference arose out of an order of assessment made on the respondent for payment of sales tax for the period June 1, 1947, to November 12, 1947, on a taxable turnover of Rs. 30,067-9·0.

Sales Tax v. Husenali Adaniji & Co.

Das' C. ].

The facts leading up to the present appeal may shortly be stated as follows. The respondent deals in matchwood called "sawn,r" (Bombay Malabaricum). His place of business is situate at Chanda in the erst In January 1948 the res while Central Provinces. pondent entered into an agreement with the Western India Match Co. Ltd., which is popula.rly known and will hereinafter be referred to as " WIMCO" for the supply of a minimum quantity of 2,500 tons of sawar logs during the season 1947-48. This agreement is evidenced by WIMCO's letter dated January 7, 1948, accepting and confi,rming it. Unfortunately that letter, although a part of the record, has not been printed in the Paper Book. It is common ground, however, that the agreement of sale was subject to the conditions appearing in a formal contract in writing dated March 2, 1945, which is said to have been renewed from year to year. It appears that prior to the exe cution of the last mentioned contract there was an other contract between the respondent and WIMCO which was dated October 18, 1940. Evidently that contract was superseded by the later one of March 2, 1945, the terms and conditions whereof were renewed year after year. It is, therefore, not easily intelligible why both the contracts were filed before the Sales Tax authorities and actually mentioned in the first ques tion that was referred to the Hight Court.

Both the contracts have been printed in the Paper Book and reference has been made to some of the terms of both of them in the course of the arguments ·before us. The reason for referring to the terms of the earlier eontract is presumably to emphasise the varia tion in the language used in the corresponding provi sions of the later contract as indicative of a· definite change in .the intention of the parties. It is, therefore,

r959

Commissioner of Sales Tax v. Husena.Ii Adamji & Co.

Das C. ].

(2) S.C.R. SUPREME COURT REPORTS

705

as well that the relevant clauses of both the contracts should be set out here for properly following the argu ments advanced on both sides.

Reference may first be made to the earlier contract dated October 18, 1940. Clause 1 sets out the specifi cations, that is to say, the dimensions and quality of the logs to be delivered under the contract which need not be reproduced here. The other material clauses, omitting the unnecessary portions thereof, may now be set out :-

" 2. The Contractor agrees that any logs suppli ed by him which do not conform with the specification herein shall not be accepted or paid for by the com pany and he the contractor undertakes to remove all logs so rejected at his own expense from the Com pany's premises within fifteen days after date of notice to him or his representative from the Company so to remove such fogs. Should the Contractor fail to re move such logs from the Company's premises within the period stipulated it is hereby mutually agreed that such failure shall be construed as being the Contrac tor's consent to relinquish all claims whatsoever to such rejected logs, and the Contractor agrees to such logs thereupon becoming the property of the company and that the contractor shall have no claim whatso ever upon the company for payment either in respect of the supply by him of such rejected logs or arising out of the disposal by the Company of such logs."

"3. The said goods shall be delivered at Amber nath in the quantities and at the times hereinafter mentioned, i.e.,

" " 4. The goods to be supplied under this Con tract shall be despatched by the Contractor from Rail way Stations on the B.N.R. and G.I.P.R. Sections be tween the following Stations :

" "5. Measurements :-The goods under this con tract shall be measured under the supervision of the

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[1959] Supp.

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Company's Factory Manager at Ambernath on arrival Commissioner of of the goods at the Factory in accordance with the

following stipulations :-

Sales Tax

v. I-lusenali Adamji &- Co.

Das C. j.

The Conti:actor agrees to accept the decision of the Company's Factory Manager at Ambernath as final and binding." The prices of the logs to be supplied are set out in cl. 6 of the contract as "F.O.R. Ambernath ".

We now pass on to the later contract of March 2, 1945. Clause 1 sets out the specifications of the logs to be supplied under the contract in exactly the same langu age as in cl. I of the earlier contract. The other material clauses, again omitting the unnecessary por tions, are as follows :-

" 2. The contractor agrees that any logs suppli ed by him. which, on arrival at Ambernath, are found in the opinion of the Company's Factory Manager not to conform with the specifications herein shall not be accepted or paid for by the Company, notwithstanding the fact that such logs may have been accepted by the Company's representatives before being railed to Ambernatb." It may be mentioned here that Ambernath is a place situate in the erstwhile province of Bombay and out side the Central Provinces.

"4. The goods to be supplied under this contract shall be despatched by the Contractor from railway stations on the B. N. Railway, N. S. Railway and G. I. P. Railway sections between the following stations .

. . . . . . . . . . . . . . . . . . . . . i ............................................. ·,;

It is unnecessary to set out the names of the stations which, it may, however, be stated, are all in the erst while Central Provinces. Clause 6 provides:

" 6. Measurements :- The goods under this contract shall be measured under the supervision of the Company's representative in accordance with the following stipulations:-

I959

Commissioner of Sales Tax v. Husenali Adamji & Co.

Das C. J.

(2) S.C.R. SUPREME COURT REPORTS

707 ..................................................... ' .............. .

The contractor agrees to accept the decision of the Company's Factory Manager at Ambernath• as final and binding." The prices of the logs to be supplied under the contract are specified as" F.0.R. Ambernath" in cl. 7 which concludes with the following sentence:

"The money so due and payable shall be paid by the Company to the Contractor when the measure ments of the goods have been completed under the supervision of the Company's representative."

Pursuant to the agreement between the respondent and WIMCO, the former loaded diverse quantities of Sawar logs on railway wagons and despatched the same by railway from Chanda or other railway stations in the Central Provinces to Ambernath in the erstwhile province of Bombay and outside the Central Provinces. It is not disputed that on many occasions the representative of WIMCO was present at the rail way station when the logs were sorted out and loaded into the wagons. The statement of the case submitted along with the r-eference under s. 23(1) of the Act is silent on the point as to whether the railway receipts were made out with WIMCO as the consignee; but it is abundantly clear from the order of the Assistant Commissioner, Sales Tax, which is.part of the record -and it has not been disputed before us-that " the railway receipt which is a document of title according to s. 2(4) of the Indian Sale of Goods Act is taken in the name of the consignee." The course of dealings between the parties also appears to be that, on arrival of the logs at Ambernath, tb.e consignee buyer WIMCO, paid the railway freight and the logs were inspected and measured by WIMCO's Factory Manager and the prices, calculated at the agreed rates, were paid to the respondent's agent at Bombay. There is no doubt that the price of the logs supplied by the respondent ,to WIMCO under the agreement and accepted by the latter during the period in question_ amounted to Rs. 30,067-9-0. The question for our

708 SUPREME COURT REPORTS

[1959] Supp.

I959 -. -. oinmissioner of

C

decision is Whether the respondent is liable to pay any sales tax under the Act.

•

.

•

Sales Tax v. Husenali

It will be convement at this stage to refer to the rekivant provisions of law applicable to the facts of this case. Section 4 of that Act is the charging section. Adamji & Co. According to this section sales tax is payable " on all sales effected after the commencement of the Act." "Sale" is defined by s. 2(g) of the Act. At the relevant period, that section, omitting Explanation I, which is not material for our purpose, ran as follows:-

Das C. ].

" ' Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Explanation II :-Notwithstanding anything to the contrary . in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract o/ sale as defined in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar ." The Act being a. piece of legislation enacted by the legislature of the erstwhile Province of Central Pro vinces and Berar, its operation is limited to the terri tories of that province. Therefore, the question arises: Does the sum of Hs. 30,067 .9.0 represent the prices of logs sold by the re&pondent within the Central Pro vinces ? Sale being the transfer of property in the goods agreed to be sold, we have to enquire if the pro perty in the goods which fetched the sale proceeds on which the sales tax is sought to be levied was trans ferred in the Central Provinces as contemplated in the main definition or if those goods were actually in the Central Provinces at the time when the contract for sale as defined in the Sale of Goods Act in respect thereof was made as required by Explanation II set

(2) S.C.R. SUPREME COURT REPORTS

709

out above. This takes us to the Sale of Goods Act, 1930.

Section 4 of the Sale of Goods Act is expressed in

the words following:-

" 4. Sale and agreement to sell :-(1) A contract

of sale of goods is a contract whereby the seller trans fers or agrees to tr~nsfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.

(2) A contract of sale may be absolute or condi

I959

Commissioner of Sales Tax v. Husenali Adamji & Co.

Das C. ].

tional.

(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(4) An agreement to sell bec9m.es a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." There can be no doubt that the agreement pursuant to which the logs were supplied by the respondent to WIMCO was an agreement to sell within the mean ing of the above section. There is also no controversy between the parties that at the date when this agree ment was entered into, the logs were unascertained goods. The question is : When did that agreement to sell unascertained goods become a sale and where did such sale take place? In other words, when and where did the property in those goods pass from the respondent to WIMBO ?

The transfer of property in the goods as between the seller and buyer is dealt with in Oh. III of the Sale of Goods Act. Section 18 of the Sale of Goods Act runs thus:

"18. Goods must be ascertained :-Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained." Passing over ss. 19 to 22·which (except as to sub-s. (3) of s. 19) apparently apply to contracts for the sale of

r959

Conimissioncr of Sales Tax v. Husenali Adamji & Co.

Das C. J.

710

SUPREME COURT REPORTS

[1959] Supp.

"23. Sale of unascertained goods and appropria

specific or ascertained goods, we come to s. 23 which provides :- . tion :-( 1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.

(2) Delivery to carrier :-Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and ·does not reserve the right of disposal, he is deemed the' goods to the con tract." Reference may next be made to s. 33 ands. 39(1). Sec tion 33 says:-

to have unconditionally appropriated

" 33. Delivery :-Delivery of goods sold may be made by doing anything which the parties agreed shall be treated as deli very or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf." Section 39(1) runs as follows:-

" 39. Delivery to carrier or wharfinger :- (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of trans mission to the buyer, or delivery of the goods to whar finger, for safe custody, is prima facie deemed to be delivery of the goods to the buyer." Keeping the provisions of the above quoted sections of the two Acts in view, we have to decide when and where the property in the logs passed from the res pondent to WIMCO.

The Assistant Commissioner of Sales Tax assessed the respondent to a tax of Rs. 939-10-0 and imposed on the respondent a penalty of Rs. 100 under s. 25 of

r959

Commissioner of Sales Tax v. Husenali Adamji & Co.

Das C. }.

(2) S.C.R. SUPREME COURT REPORTS

711

the Act for not having submitted its return in contra vention of r. 19 of the Central Provinces and Berar Sales Tax Rules. The Assistant Commissioner took the view that the loading of the logs into the wagons at railway stations within the Central Provinces and the taking out of the railway receipts in the name of the consignee, WIMCO, and the delivery of the same to WIMCO, had the effect of putting the latter in pos session of.the goods as laid down in s. 39(1) of the Indian Sale of Goods Act and he accordingly held that the sale of the goods took place at Chanda and other railway stations in the Central Provinces and that the assessee was, consequently, liable to pa.y the sales tax under the Act.

The respondent preferred an appeal to the Sales Tax Commissioner who upheld the Assistant Commis sioner's order of assessment as well as of the penalty. He laid greater emphasis on Explanation II to s. 2(g) of the Act as over-riding the provisions of the Indian Sale of Goods Act in respect of the transfer of property in the logs and held that as the logs were in the Cen tral Provinces at the date when the contract for sale was made, the transfer in them must be deemed to have taken place there under that Explanation. He also agreed with the Assistant Commissioner that the delivery of the logs to the railway company and the sending of the documents of title to WIMCO had, under s. 39(1) of the Sale ofGoods Act, the effect of putting WIMCO in possession of the logs.

The respondent preferred what in form appeared to be a second appeal to the Board of Revenue. As, however, there could be no second appeal under s. 22(4) of the Act, the Board treated the memorandum of appeal as an application for revision under sub-s. 5 of s. 22 of the Act read with r. 57. Both the members of the Board of Revenue came to the same conclusion, namely, that the sales were liable to assessment under the Act, but the reasonings adopted by them were somewhat different. Shri Shrivastava, a member of the Board of Revenue, took the view that as soon as logs answering the description agreed upon were brought to the railhead, at Chanda and sorted out and

712

SUPREME COURT REPORTS

[1959] Supp.

'959

safos Tax

Das C. ],

v, I-Jusenali Adamji 0- Co.

loaded in the wagons in the presence of WIMCO's re Commissioner of presentatives, there was an implied contract of sale of specific and ascertained goods, as evidenced by the conduct of parties and the property in each consign ment passed immediately from the respondent to WIMCO at the railway station in the Central Pro vinces where such implied contracts were made. 'The Chairman of the Board of Revenue, however, took the view that the contract of sale was made outside the Central Provinces, namely, in Bombay and that, under thp, Sale of Goods Act, the property in the logs passed to WIMCO in Ambernath outside the province but that as the logs were in the Central Provinces, either in the form of logs or in the form immediately preceding, namely, trees standing on the laud which had been impliedly agreed to be severed from the land before actual sale, Explanation II to s. 2(g) of the Act applied and the sale must, accordingly, be deemed to have taken place within the Central Provinces and, must, therefore, be liable to sales tax under the Act. The Board rejected the application but remitted the penahy.

On the application of the respondent under s. 23(1) of the Act, the Board of Revenue submitted to the High Court a statement of case raising the following questions : -

" (1) Did the agreements of the kind on record the one dated 18-10-40 and the other dated 2-3-45- constitute contracts of sale-either express or implied -in respect of sawar wood supplied by the assessee to WIMCO?

(2) If the answer to question No. 1 be in the affir mative, did the contracts relate to specific or ascertain ed goods or to unascertained or future goods?

(3) Did the property in the goods pass to WIMCO by consignment simpliciter at different railway sta tions within this province, or did it pass at Ambernath when the goods were approved as provided in the con tract?

( 4) Was reliance on the definition of 'goods' con tained in s. 2(7) of the Sale of Goods Act in order in applying Explanation II to s. ?(g) of the Sales Tax

•

(2) S.C.R. SUPREME COURT REPORTS

713

Act in cases, where the goods sold were in the form of trees standing on the land in this province at the time Commissioner of of the contract of sale?" In its judgment dated June 29, 1954, the High Court took the view that the sales in question did not take place in the Central Provinces and Berar and conse- quently were not "sales" within the meaning of the Act and, therefore, not liable to tax. It gave the fol- lowing answers to the above questions:-

Adamji "" co. Das c. ].

sales Tax v. Husenali

r959

"Our answers to the questions referred for deci

sion are:-

(1) The agreement in question we.s an express agreement to sell sawar logs to WIMCO. There was neither an express nor an implied contract each time goods were railed.

(2) The contract was not for delivery of specific goods but of unascertained or future goods by descrip tion.

(3) The property in the goods did not pass to the buyer by the delivery to the railway for carriage. It passed at Ambernath where the goods were appro priated by the buyer to the contract with the assent of the seller.

(4) The word 'goods' in the definition of 'sale' in the Sales Tax Act must be inter.ereted according to _ its definition in s. 2(d) of the Act and not according to the definition in s. 2(7) of the Sale of Goods Act. The standing sawar trees are not goods within the meaning of the former Act." The effect of the answers being to nullify the assess ment order, the Commissioner of Sales Tax has come up on appeal before us after obtaining special leave of this Court.

The answers to the first two questions have not been questioned before us. The main arguments have centred round the answers to questions 3 and 4. The answer to question 3 turned on the construction plac ed by the High Court on s. 23 of the Sale of Goods Act. After quoting s. 23, the High Court observed as follows:-

" After sorting the logs with the assent of the buyer's representative, the applicant appropriated the

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[1959] Supp.

I959

1 0

Commissioner 501,, Tax v. Husenali Adamji & Co.

Das C. ].

logs to the contract by railing them to the buyer's destination at Ambernath. The statement of the case is silent on the point whether the railway receipts were made out with the Company as the consiguee. The assent of the representative was provisional and was not binding on the Company. Under the agree ment it did not agree to nnconditionally appropriate the logs to the contract as soon as they were delivered to the railway with the assent of its representative for carriage to Ambernath. It had expressly reserved its right to reject the goods on examination at Amber nath. The agyeement therefore was that the buyer should, with the assent of the seller, appropriate the goods to the contract at Ambernath. The appropria tion under s. 23 was not complete till the goods rea ched Ambernath and were appropriated by the Com pany to the contract. The appropriation of the goods by the applicant at the railheads was conditional on their acceptance by the buyer at Ambernath. There is nothing in the statement of the case to show that the logs were not so appropriated. Therefore, the property in the logs passed to the buyer at Amber nath." The learned counsel for the department appearing in support of this appeal contends that property in the logs passed from the respondents to WIMCO under s. 23 when sawar logs were brought to the railway station and loaded in the wagon and the railway receipts taken in the name of WIMCO were forwarded to the latter. There was an. unconditional appropria tion of the goods to the contract by the respondent. There was, according to learned counsel, assent on the part of WIMCO to this appropriation in two ways, namely, (a) expressly given by its representative who was present at the railway station, and (b) impliedly given by WIMCO by having agreed in advance that the goods should be despatched by rail from the sta tions mentioned in cl. 4 of the agreement, all of which were situate in the Central Provinces.

There is no doubt--and indeed it has been categori cally conceded by learned counsel for the department -that the contract was for sale of unascertained goods and consequently the property in them could

(2) S.C.R. SUPREME COURT REPORTS

715

z959

Das

c . ].

Sales Tax v. Husenali

not, under s. 18, pass unless and until the goods were ascertained. His contention is that logs of the con- Commissioner of tract quality and description having been unconditio- nally appropriated by the respondent to the contract without reserving to itself any right of disposal and WIMCO having expressly through its representative Adamji"" Co. or impliedly by the very terms of the contract assent- ed to such appropriation, property in them passed under s. 23 from the respondent to WIMCO at the railway stations within the Central Provinces as soon as the sawar logs were loaded on the wagons and the railway receipts were taken out in the name of· WIMCO. It is said that so far as the respondent is concerned it unconditionally appropriated the logs to the contract. Seeing that they were actually accepted by WIMCO on their arrival at Ambernath it is quite clear that the logs were of the contract qu.ality and description. The only question, according to learned counsel for the department, therefore, is whether there was assent of WIMCO to such appropriation. It has been found as a fact that WIMCO's representa- tive was not present on all occasions when sawar logs used to be loaded on the railway wagons. There is no evidence that he was actually present when these particular sawar logs, with the sale proceeds of which we are concerned, were put into the wagons. Nor is there an iota of evidence that the representative of WIMCO had any authority to bind WIMCO by any assent. In view of these .difficulties, learned counsel for the department did not press the case of express assent of the representative of WIMCO and concen- trated on the case of implied assent. It is quite clear from the language of s. 23 itself, that the appropria- tion may be by the seller with the assent of the buyer or by the buyer with the assent of_ the seller, that assent to appropriation may be express or implied and that it may be given after the appropriation or in advance before such appropriation. Learned counsel for the department lays strong emphasis on the provi- sion of cl. 4 in the contract that the sawar logs should be despatched by rail from certain stations within the Central Provinces and contends that deiivery by the the contract quality and seller of sawar logs of

716

SUPREME COURT REPORTS [1959] Supp.

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Das C. j.

there

v. Husenali Ada1nji 6- Co.

description to the rail ways in terms of the contract without the reservation of any right of disposat bas Coni~~1::i 0;:: of the effect of passing the property therein to WIMCO at the railway stations in the Central Provinces under s. 23 as well as of constituting delivery of them at the railway stations under ss. 33 and 39(1). The argument is prima facie sound unless there be some other provi sion in the contract to negative this conclusion, e. g., that the logs must be carried to Ambernath and deli (See The Badische Anilin und Soda vered Fabrik v. The Basle Chemical Works, Bindschedler (1) ). Learned counsel for the department does not urge that if the matter bad to be decided on the terms of the earlier contract dated October 18, 1940, be could properly say that there was nothing in the contract negativing the idea of the passing of property in the logs within the Central Provinces. The cumulative effect of the provisions of cl. 2 that the property in the rejected logs would pass to WIMCO upon the failure of the respondent to remove the same after rejection, of cl. 3 that the goods shall be delivered at Ambernath in the presence of WIMCO's Factory Manager and of cl. 6 providing tba t the prices will be "F.O.R. Ambernatb" clearly militate against the theory of passing of property immediately on the goods being loaded into the wagons. While not con testing this, learned counsel for the department urges that there is no such contrary intention indicated in the later contract of March 2, 1945, which really governs the case. We are unable to accept this distin ction as of any substance. It is true that in this later contract cl. 2 is differently worded and there is no express provision that the goo,ds should be delivered at Ambernath. There are, nevertheless, several other provisions in the later contract indicating that pro perty in the logs loaded in the wagon will not pass to WIMCO until after the goods arrive at Ambernath and are inspected, measured and accepted by WIMCO's Factory Manager. Clause 2 of the later contract quite clearly reserves the right of \VIMCO to examine the goods on arrival and to reject the same if they are found, in the opinion of its Factory Manager, not to

(1) [1898) A,C. 200,

01

om1nissioner Sales Tax v. Husenali

Das C. ].

tentative and sabject to Adamji & Co.

(2) S.C.R. SUPREME COURT REPORTS

717

.

.

reservation,

conform with the specifications. This z959 which is made notwithstanding the fact that the logs c · .-. may have been accepted by its representative before they were railed to Ambernath, clearly indicates that the so called acceptance by the representative was not final but WMI entirely approval of the logs by WIMCO's Factory Manager at Am bernath after their arrival. This circumstance certainly militates against the property in them having already passed to WIMCO at the railway stations in the Central Provinces. The provisions of cl. 6 1 that the goods shall be measured under the supervi sion of WIMCO's representative, the decision of its ]'actory Manager at Ambernath being binding on the respondent a:qd of cl. 7 that the prices shall be" ]'.O.R. Ambernath " and shall be payable after such measure ment of the logs by WIMCO's repqisentative further reinforce the conclusion that the intention of the parties was that property in the goods shall not pass until the logs arrive at Ambernath and are there inspected, measured and accepted by WIMCO. In our judgment the prima facie case of what might have been the appropriation of the logs by the respondent by loading on the wagons logs of the contract quality and description with the .assent of WIMCO given in advance by the terms of cl. 4 is effectively displaced by the provisions of els. 2, 6 and 7 of the later con tract which clearly indicate a contrary intention. On a proper construction of the contract as a whole the intention of the parties clearly was that the respondent would send the logs by rail from the different stations in the Central Provinces to Ambernath where WIMCO's Factory Manager would inspect, measure and accept the same if in his opinion they were of the description and quality agreed upon. In other words the respon dent sent the logs and left it to WIMCO to appropriate to the contract such of them as they accepted as of contract quality and description. The respondent, therefore, gave in advance its assent to WIMCO's appropriation of the goods at Ambernath. Therefore, the decision of the High Court cannot be assailed but must be accepted as well-founded in fact and in law. Learned counsel for the department then falls back

718

SUPREME COURT REPORTS

[1959] Supp.

Das C . ./.

Sales Tax v. Ilusenali Adamji & Co.

upon the argument founded on Explanation II to Commissioner of s. 2(g) and ·argues, somewhat half.heartedly, that notwithstanding the provisions of the Sale of Goods Act regarding the passing of property in the goods the sale under consideration must be deemed, in the light of that Explanation, to have taken place within the Central Provinces. The question of the constitutional validity of that Explanation was not raised in the High Court and indeed, in view of the decision of this Court in Poppatlal Shah v. State of Madras (1 ) and other cases, cannot now be raised and we must proceed on the footing that Explanation II did not transgress the legislative competency of the Legislature which enact ed the same. It will be noticed that Explanation II can apply only if the goods "in respect of" which the contract of sale is entered into are, at the date of such contract, actually.in the Central Provinces. Learned counsel for the department urges that the logs deliver ed must have been in existence in the Central Pro vinces either in the shape of :Jogs or in the shape of standing timber. There. is no evidence that at the date when the agreement for sale was made, the particular logs delivered thereunder were in the Central Provinces in the shape of logs at all. Learned counsel says that, at any rate, they must have been in existence there in the shape of standing timber. Apart from anything else, the agreement here was not " in respect of" any standing timber and there was no provision in the agreement as between the respondent and WIMCO for severance of the standing timber before sale under that agreement. In order to attract Explanation II the goods, in respect of which the contract of sale is. made, must, at the date of the contract be in existence in the Central Provinces, that is to say, that the goods must at the date of the contract be there in the form in which they are agreed to be sold. There is not an iota of evidence on that point. In our judgment, there. is no force in this alternative argument.

,

The result, therefore, is that this appeal is dismissed

with costs.

Appeal dismissed.

(1) [1953) S.C.R. 677.