This is a second appeal from the judgment and decree dated 9-3-1966, passed by the 2nd Additional District Judge, Hyderabad is Civil Appeal No. 159 of 1963, allowing the appeal of the respondent No. 1 and decreeing his suit for Rs. 7,230.
2. Jummo son of Hassan. Respondent No. 1 filed a suit in the Court of the Sub-Civil Judge.
Hyderabad No. 869/ 1962 against Rehmat A.I appellant and Messrs Mama Transport Co.
Respondent No. 2. His case was that on 12-4-1962, he agreed to purchase two "Vespa Ape"
Commercial Rickshaw chassis 150 cc. Of 1i H. P. Each from Rehmat A.I (hereinafter referred to as seller) who had imported six such Rickshaw chassis from his Hyderabad Quota, for Rs. 3,615 each.
He paid an advance of Rs. 500 per chassis to the seller who issued two separate receipts for the same, the balance of the price was to be paid on delivery at Hyderabad. That the seller delivered the two chassis to Mama Transport Co., the respondent No. 2 (hereinafter referred to as the carrier) for carriage to Hyderabad on 14-4-1962 under Carrier's Receipt No. It;/L 9623 showing the seller himself as consignee. The freight of Rs. 45 was payable at destination by the seller. On the night of 14/i5 April 1962, the truck caught fire while on its way to Hyderabad, with the result that the two chassis were completely destroyed by fire. Without knowing of the said loss he approached the seller for delivery of the goods on 17-4-1562. And paid him the balance price, and obtained the carrier's receipt duly endorsed to enable him to obtain delivery of the goods from the carrier. The seller also issued two Sale Invoices Exhs. 45 and 46 to him. When the buyer discovered that the goods had been destroyed by fire, he demanded refund of the purchase price from the seller, but the latter declined to pay. His case was that the seller had prior knowledge of the loss of the goods and that be had been defrauded.
3. The case of the seller was that the buyer had taken delivery of the goods at Karachi where they were lying with the Clearing Agent, but as the buyer had no money to pay the balance price then, he promised to pay for the goods at Hyderabad. Hence the goods were despatched to Hyderabad through the carrier, in the name of the seller as consignee.
4. After framing issues anti recording evidence produced by the parties, the Sub-Civil Judge, Hyderabad dismissed the Buyer's suit. He held that as per invoices Exhs. 45 and 46, which stated "delivery at Karachi", the delivery was made to the Buyer at Karachi and the goods were given to the carrier at his request for carriage to Hyderabad. Therefore, then sale was completed at Karachi and the seller was not liable to refund the purchase price.
5. The buyer preferred a first appeal which was allowed by the 2nd Additional District Judge, Hyderabad by the impugned judgment dated 9-3-1966. The learned Additional District Judge held that the sale being of unascertained goods by description, under section 23, Sale of Goods Act, 1930, the delivery of the goods to the carrier by the seller was not an unconditional appropriation of the goods to the contract with the assent of the buyer and therefore, the property in the goods did not pass to theL buyer before the loss of the goods by fire,
6. Mr. G. M. Qureshi, learned counsel for the appellant seller submitted that the appellate Court erred in failing to hold that the delivery of the goods had been made to the buyer in Karachi and that appropriation of the goods to the contract took place when the goods were entrusted to the carrier at Karachi for and on behalf of the buyer and therefore the' property in the goods passed to the buyer before the fire bad occurred.
7. I have gone through the evidence and find that the alleged delivery of the goods to the Buyer at Karachi has not been established. Neither any delivery receipt has been produced, nor any person has been examined who had witnessed the alleged delivery of the goods at the godown of the Muccadam, Muhammad Amin near the City Station, Karachi, apart from the seller's word. It seem highly incredible, that delivery would have been made to the buyer before payment was made as admittedly he had no money to pay the balance of the purchase price. Abdul Mahdi (D. W. 3) was examined to show that his father purchased a chassis from the seller and took delivery of at Karachi after paying the price at Hyderabad and that Jummo, buyer had also entered into similar agreement on that very day for taking delivery at Karachi, But the seller in his evidence does not even say that this witness or his father was present at the time of entering into the contract with the buyer. His evidence therefore cannot therefore be believed.
8. In the absence of proof of delivery at Karachi to the buyer, the main question is whether delivery of the goods to the carrier amounted to appropriation of the geode, to the contract. As rightly submitted by Mr. Abdul Mateen, the learned counsel for the buyer, the carrier's receipt Exh. 33 showed that the goods were consigned in the name of the seller. Therefore the seller was free to dispose of the goods by endorsement o the carrier's receipt, in favour of the buyer or any third party against payment. Therefore the seller had reserved the right of disposal of the goods. He relied on section 25 of the Sale of Goods Act, 1930 that when the seller reserves or is deemed to reserve the right of disposal of the goods, the property in the goods does not pass to the buyer until' payment is made. He referred to The Ford Automoblies (India) Ltd. v. The Delhi Motor & Engineering Co. AIR 1923 Bom.
125. In that case payment was to be made by the buyer against a railway receipt for the goods to the seller's agent. The railway receipt was made out in the name of the sellers as consignees and was endorsed by them in blank. The goods were lost in transit. It was held that the property in the goods did not pass to the buyers on delivery to the railway company and they were not liable. Counsel also referred to Sunder Singh Jit v. Gulab Singh-Kalyan Singh AIR 1927 Lah. 269 to the same effect. Counsel also referred to Governor-General-In-Council v.
Joynarain Ritolia AIR 1948 Pat. 36 which followed the Lahore case.
9. In this view of the matter, it is not necessary to consider the question whether the seller had committed any fraud on the buyer, (a) by writing the word "delivery at Karachi" in the invoices Exhs.
45 and 46 dated 7-4-1962 knowing that the goods had been destroyed by fire, or (D) whether the seller obtained payment of the balance of the purchase price from the Buyer on 17-4-1962 and had defrauded him by suppressing the fact that the goods had already been destroyed by fire two days earlier.
10. There is no merit in this appeal. It is accordingly dismissed with costs.